Ex parte Heard

Summary

The Supreme Court of Alabama held that the defendant’s motion for a new trial was properly continued beyond the 60-day period under Alabama Rule of Criminal Procedure 24.4. Because the record reflected the express consent of the prosecutor and the defendant’s attorney, the motion was not denied by operation of law, and the notice of appeal was timely. The court reversed the Court of Criminal Appeals’ dismissal and remanded the case.

Holdings

1. A continuance of a motion for a new trial beyond Rule 24.4's sixty-day period is valid when the record reflects the express consent of the prosecutor and the defendant or defense counsel and the trial court carries the motion to a date certain. Counsel's representation in an unchallenged motion that the prosecutor consented is sufficient to place that consent in the record.
2. Because the motion for a new trial was validly continued beyond the initial sixty-day period, it was not denied by operation of law on March 13, 2002. Accordingly, Heard's notice of appeal was timely, and the Court of Criminal Appeals erred by dismissing the appeal.

Questions Presented

1. Whether the trial court properly continued Heard's motion for a new trial beyond the sixty-day period under Rule 24.4, Alabama Rules of Criminal Procedure.
2. Whether the Court of Criminal Appeals erred in dismissing Heard's appeal as untimely on the ground that the trial court lacked jurisdiction to enter a later clarification order.

Disposition

reversed_and_remanded