McGregor v. Commonwealth

HILL, Judge. RCr 12.54 provides that an appeal to this court may be taken within ten days from the entry of judgment; but if “timely” motion for new trial has been made, the appeal may be taken within ten days after the motion is overruled. RCr 10.06 limits the time for service of a motion for new trial to the period of five days after return of the verdict — except that if it is made on the ground of newly discovered evidence, the motion may be made at any time within one year after entry of the judgment or even later if the court for good cause permits. Appellant was convicted on October 29, 1965. On December 2, 1965, having failed to appeal within ten days after entry of the judgment and having failed to move for a new trial within the prescribed time of five days, he served a motion for new trial (without a supporting affidavit) on the ground of newly discovered evidence. This motion was overruled on December 13, 1965, and notice of appeal was filed on December 18, 1965. The rules cannot be sensibly construed to permit an appeal that would otherwise be untimely by the simple device of making a motion for new trial on the ground of newly discovered evidence. If such a motion is made more than five days after return of the verdict, the only reviewable “judgment”’ is the final order overruling the motion; and the review is restricted to the grounds timely raised by the motion. Appellant has moved for an appeal under KRS 21.140(2). His grounds are addressed entirely to the merits of the case. He makes no contention that the order overruling his motion for a new trial was erroneous. The motion for appeal is overruled.