TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 15. Interlocutory Appeal
Right of Interlocutory Appeal.
Right of Appeal Where Pretrial Motion to Dismiss or for Appropriate Relief Granted. The State shall have the right to appeal to the Supreme Court a decision by a judge granting a motion to dismiss a complaint or indictment or a motion for appropriate relief made pursuant to the provisions of Rule 13. The right conferred by this subdivision extends to an order dismissing an indictment or information, an order dismissing a count of an indictment or information, an order dismissing an affidavit charging the commission of a criminal offense, an order arresting judgment, and an order withholding an adjudication of guilt, as provided by 6 R. Stat. § 131.805.
Appeal by Leave from an Order Suppressing or Excluding Evidence. The State may apply for leave to appeal to a single justice of the Supreme Court from an order suppressing evidence, or excluding evidence in limine, as provided by 6 R. Stat. § 131.805. Leave shall be granted only where the single justice determines that the evidence is substantial proof of a material fact in the proceeding and that the interests of justice require immediate review. An application for leave does not stay the proceeding except as provided in subdivision (e).
Probable Cause Determinations; Preliminary Hearings. No interlocutory appeal or report may be taken of matters arising out of a first appearance held under Rule 3.1 and 6 R. Stat. § 131.204, or out of a preliminary hearing held under Rule 7.2 and 6 R. Stat. § 131.204(b), including an order binding charges over for trial. This paragraph does not abridge the State’s right under 6 R. Stat. § 131.805 and subdivision (a)(1) of this rule to appeal an order discharging the defendant upon a count at a preliminary hearing, that order being an order dismissing a count of an information or indictment.
Defendant. A defendant has no right of interlocutory appeal except where these rules or a statute expressly so provides. A defendant’s remedy for an adverse pretrial ruling is by appeal from the final judgment as provided by 6 R. Stat. §§ 131.801, 131.803, and 131.804 and by Rule 35, except that a defendant may apply to a single justice of the Supreme Court for leave to appeal from an order denying a motion to dismiss made on the ground of former jeopardy, and such an application shall be determined before the defendant is placed in jeopardy.
Procedural Requirements.
Time for Filing Appeal. An appeal under Rule 15(a)(1) shall be taken by filing a notice of appeal in the trial court within the time provided by the Ridgeway Rules of the Supreme Court after the date of entry of the order being appealed, as required by 6 R. Stat. § 131.806. An application for leave to appeal under Rule 15(a)(2) shall be made within that same time, or such additional time as either the trial judge or the single justice of the Supreme Court shall order, by filing (i) a notice of appeal in the trial court, and (ii) an application to the single justice of the Supreme Court for leave to appeal. Where the Ridgeway Rules of the Supreme Court prescribe no period for an order of the class appealed from, the notice of appeal and any application for leave shall be filed within seventy-two (72) hours of the entry of that order.
When Filed. A notice of appeal or an application under this subdivision is filed when the electronic filing system records the complete set of documents comprising the filing as received. A submission that remains tendered and incomplete has not been filed and does not stop the running of the period. The period runs continuously in Coordinated Universal Time from the timestamp of entry of the order; there is no court-day calendar, no cutoff hour, and no extension for any day of the week.
No Computation by the System. The electronic filing system computes no period under this rule and gives no notice that a period has run. Timeliness is raised by motion in the Supreme Court or by suggestion to the trial court under subdivision (f).
Record. The record for an interlocutory appeal shall be defined and assembled pursuant to the Ridgeway Rules of the Supreme Court.
Transmission. Upon the filing of a notice of appeal, the clerk shall transmit to the Supreme Court the docket of the case, the filings accepted for filing, the order appealed from, the findings entered under subdivision (b)(3), and the record of the proceeding communications for any hearing on the motion decided by that order.
Confidential Matters. Where the case is of a confidential type, the record is transmitted through the channel that serves that type of matter, and no part of it is placed on the public docket.
Findings. The judge shall make all findings of fact relevant to the appeal or the application for leave to appeal within the period specified in Rule 15(b)(1) for filing the notice of appeal. The findings shall be entered on the docket. If the judge does not enter findings within that period, either party may apply to the single justice of the Supreme Court, who may order the findings entered, may enlarge the time, or may proceed upon the record as it stands.
Contents of the Notice of Appeal. A notice of appeal shall identify the case by its case number, identify the order appealed from and the date and time of its entry in Coordinated Universal Time, identify the party appealing and the counsel of record for each party, and state the provision of Rule 15(a) and of 6 R. Stat. § 131.805 upon which the appeal rests.
Docketing; Fees. A notice of appeal is docketed upon filing. A fee assessed upon the filing is a debt of the account holder who filed it and is collected as such. Non-payment of a fee does not prevent the docketing, acceptance, service, or prosecution of the appeal, and is not a ground for rejection by the clerk.
Service. A notice of appeal, an application for leave, and every paper filed under this rule are served upon the other participants in the case by the electronic filing system upon the clerk’s acceptance of the filing. No transmission by the filer and no certificate of service is required. Where a person entitled to notice is not a participant in the case, the filing party shall give that person notice through the proceeding communications.
Rejection; Corrected Refiling. The clerk may reject a filing under this rule in the clerk’s judgment, stating a reason. A rejected filing is not shown publicly and takes no further documents. The cure is a corrected refiling, which bears its own later filing date. A rejected filing does not toll or preserve the period fixed by subdivision (b)(1); a party whose filing is rejected shall refile within the remaining period or apply to the single justice to enlarge it.
Determination of Motions. Any motion the determination of which may be appealed pursuant to this rule shall be decided by the judge before the defendant is placed in jeopardy under established rules of law.
Costs upon Appeal. If an appeal or application therefor is taken by the State, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or her costs of appeal together with reasonable attorney’s fees to be paid on the order of the trial court upon the entry of the rescript or the denial of the application. Where the defendant is represented by the public defender or by counsel assigned under Rule 8, the award shall be made to the office or person providing the representation, and no award shall be made to the defendant personally for fees the defendant has not incurred.
Stay of the Proceedings. If the trial court issues an order which is subject to the interlocutory procedures herein, the trial of the case shall be stayed and the defendant shall not be placed in jeopardy until interlocutory review has been waived or the period specified in Rule 15(b)(1) for instituting interlocutory procedures has expired. If an appeal is taken or an application for leave to appeal is granted, the trial shall be stayed pending the entry of a rescript from or an order of the appellate court. If an appeal or application therefor is taken by the State, the defendant may be released on personal recognizance during the pendency of the appeal.
Effect on the Speedy Trial Period. The period of a stay under this subdivision, running from the entry of the order appealed from to the entry of the rescript or order of the appellate court or to the expiration or waiver of the period fixed by Rule 15(b)(1), is excluded from the computation prescribed by Rule 19(c), as provided by Rule 19(d)(2).
Detention. No bond hearing shall be held, as provided by 6 R. Stat. § 131.205. A defendant held in pre-trial detention shall not be held beyond the period permitted by 6 R. Stat. § 131.203 by reason of a stay under this subdivision. Where a stay will extend beyond that period, the court shall order the defendant released on personal recognizance.
Conditions. The court may impose conditions of release during a stay, including a condition that the defendant remain available in the case’s proceeding communications and appear on notice, and may direct that any outstanding warrant not be executed during the stay.
Waiver; Dismissal of the Appeal.
Waiver by Inaction. Where no notice of appeal or application for leave is filed within the period fixed by Rule 15(b)(1), interlocutory review is waived, the stay under subdivision (e) terminates by its own force, and the case shall proceed. The trial court shall enter the termination of the stay on the docket and shall set the case for the next event within twenty-four (24) hours.
Express Waiver. The State may waive interlocutory review by filing a notice of waiver, whereupon the stay terminates.
Failure to Prosecute. Where an appeal is not prosecuted in accordance with the Ridgeway Rules of the Supreme Court, the appellate court may dismiss it, and upon the entry of the rescript the trial court shall proceed.
Effect of the Decision. Upon the entry of the rescript or order of the appellate court, the clerk shall enter it on the docket and the stay terminates. Within twenty-four (24) hours of that entry, the trial court shall hold a conference and set the case for its next event. Where the order appealed from is reversed and the charge is reinstated, the court shall issue such process as is necessary to secure the defendant’s appearance and shall recompute the period prescribed by Rule 19 in accordance with Rule 19(d)(2).