67 Conn. App. 154 | Conn. App. Ct. | 2001
Opinion
The defendant appeals from the judgment of the trial court denying her petition for a new trial on the ground of newly discovered evidence. We dismiss the appeal.
The following facts and procedural history are relevant to our disposition of this appeal. The defendant was convicted on November 20, 1997, following a jury trial, of attempt to commit assault in the first degree as an accessory in violation of General Statutes § § 53a-8, 53a-49 (a) (2) and 53a-59 (a) (1) and assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-60 (a). On November 24,1997, the defendant filed a motion for a new trial. Two years later, on November 24, 1999,
This is a classic case demonstrating the distinction between a motion for a new trial pursuant to Practice Book § 42-53,
In this case, the petition was filed under the same criminal docket number as the underlying case rather than being instituted by writ and complaint as a separate civil action. In accordance with Servello, we conclude that the court should have dismissed the petition, and we do not review the trial court’s denial of that petition.
Furthermore, even if we were to determine that the petition was properly brought, the defendant failed to request permission to appeal pursuant to General Statutes § 54-95 (a).
The appeal is dismissed.
In this opinion the other judges concurred.
The reason for the two year delay is not clear from the record. It appears, however, (hat for at least part of this period, the defendant may not have been available in this jurisdiction for sentencing.
Practice Book § 42-53 (a) provides in relevant part: “Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. . . .” (Practice Book § 42-54 requires that such motion be filed within five days after a verdict or finding of guilty.)
General Statutes § 52-270 provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. ...”
Practice Book § 42-55 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. The judicial authority may grant the petition even though an appeal is pending.”
General Statutes § 54-95 (a) provides in relevant part: “No appeal may be taken from a judgment denying a petition for a new trial unless, within ten days after the judgment is rendered, the judge who heard the case or a judge of the Supreme Court or the Appellate Court, as the case may be, certifies that a question is involved in the decision which ought to be reviewed by the Supreme Court or by the Appellate Court. . . .”