State v. Patrick

Supreme Court of Vermont

State v. Patrick

485 A.2d 133, 145 Vt. 207, 1984 Vt. LEXIS 567

CourtSupreme Court of Vermont

DecidedOctober 26, 1984

DocketNo. 82-128

StatusPublished

This text of 485 A.2d 133 (State v. Patrick) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Patrick, 485 A.2d 133, 145 Vt. 207, 1984 Vt. LEXIS 567 (Vt. 1984).

Pincite

Opinion

Per Curiam.

The defendant appeals her conviction for petit larceny in violation of 13 V.S.A. § 2502. Following a trial by jury, the defendant was found guilty on December 4, 1981, and sentenced on January 19,1982. A notice of appeal was filed on January 25, 1982, but was later withdrawn. The defendant then filed a motion for a new trial based on newly discovered evidence on February 24, 1982. Three days later, following a hearing on this motion, it was denied. A notice of appeal was again filed on March 3, 1982, appealing the judgment of the District Court.

V.R.A.P. 4 precludes this Court from hearing the appeal from the judgment. The defendant withdrew her notice of appeal and did not refile it until 43 days after the entry of judgment. V.R.A.P. 4 allows for an extension of time within which to file a notice of appeal if there is a denial of a motion for a new trial based on newly discovered evidence. However, the rule requires that the motion for a new trial be filed within 30 days after the entry of judgment. The defendant failed to make her motion for a new trial within the thirty-day period. Therefore, the time for filing a notice of appeal was not extended, and the notice of appeal was untimely filed. This Court is thus without jurisdiction to review the judgment. See State v. Savo, 136 Vt. 330, 338 A.2d 391 (1978) ; V.R.A.P. 4.

The appeal of the denial of the motion for a new trial based on newly discovered evidence is properly before this Court. The motion was brought in a timely manner pursuant to V.R.Cr.P. 33, and the appeal therefrom was filed within 30 days of the denial of the motion, as required by V.R.A.P. 4. A review of the evidence, however, reveals that the trial court properly denied the motion. To prevail on such a motion, the evidence “must be truly new and not merely urn [209]*209discovered because of lack of diligence.” State v. Berard, 134 Vt. 220, 222, 356 A.2d 514, 515 (1976). In the instant case, the defendant sought only to compel the State to reveal the identity of a potential witness. This was a request for additional discovery and not a presentation to the court of any newly discovered evidence. The motion, therefore, was properly denied.

The appeal of the judgment on the verdict is dismissed. The judgment denying the motion for a new trial is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The defendant appeals her conviction for petit larceny in violation of 13 V.S.A. § 2502. Following a trial by jury, the defendant was found guilty on December 4, 1981, and sentenced on January 19,1982. A notice of appeal was filed on January 25, 1982, but was later withdrawn. The defendant then filed a motion for a new trial based on newly discovered evidence on February 24, 1982. Three days later, following a hearing on this motion, it was denied. A notice of appeal was again filed on March 3, 1982, appealing the judgment of the District Court.

V.R.A.P. 4 precludes this Court from hearing the appeal from the judgment. The defendant withdrew her notice of appeal and did not refile it until 43 days after the entry of judgment. V.R.A.P. 4 allows for an extension of time within which to file a notice of appeal if there is a denial of a motion for a new trial based on newly discovered evidence. However, the rule requires that the motion for a new trial be filed within 30 days after the entry of judgment. The defendant failed to make her motion for a new trial within the thirty-day period. Therefore, the time for filing a notice of appeal was not extended, and the notice of appeal was untimely filed. This Court is thus without jurisdiction to review the judgment. See State v. Savo, 136 Vt. 330, 338 A.2d 391 (1978) ; V.R.A.P. 4.

The appeal of the denial of the motion for a new trial based on newly discovered evidence is properly before this Court. The motion was brought in a timely manner pursuant to V.R.Cr.P. 33, and the appeal therefrom was filed within 30 days of the denial of the motion, as required by V.R.A.P. 4. A review of the evidence, however, reveals that the trial court properly denied the motion. To prevail on such a motion, the evidence “must be truly new and not merely urn [209]*209discovered because of lack of diligence.” State v. Berard, 134 Vt. 220, 222, 356 A.2d 514, 515 (1976). In the instant case, the defendant sought only to compel the State to reveal the identity of a potential witness. This was a request for additional discovery and not a presentation to the court of any newly discovered evidence. The motion, therefore, was properly denied.

The appeal of the judgment on the verdict is dismissed. The judgment denying the motion for a new trial is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

485 A.2d 133, 145 Vt. 207, 1984 Vt. LEXIS 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-patrick-vt-1984.

Opinion

Related

Cite This Page — Counsel Stack