TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 18.5. Motion to Vacate a Judgment Entered in Absentia; New Trial
The Right. A defendant convicted in absentia may move to vacate the judgment and for a new trial, as 6 R. Stat. § 131.501(h) provides.
Time. The motion shall be made within seven (7) days after the defendant is taken into custody or otherwise appears before the court. No provision of these rules abridges that period. The period is computed as Rule 46(5) provides.
Advice Upon Custody or Appearance.
Upon learning that a defendant convicted in absentia has been taken into custody or has appeared, the court shall, not later than twelve (12) hours thereafter, cause the defendant to be informed upon the record of the judgment and sentence, of the right conferred by this rule, and of the period within which the motion must be made.
The court shall at the same time appoint counsel under Rule 8 where the defendant is not represented, and shall afford the defendant an opportunity to consult with counsel before the period expires.
The clerk shall enter upon the docket the fact and time of the advice and of the appointment.
A failure to give the advice required by this subdivision is a ground for relief from the expiration of the period, upon a motion under Rule 46(11)(b).
Contents of the Motion. The motion shall state the case number; the date of the judgment; the date and time at which the defendant was taken into custody or appeared; each ground relied upon under subdivision (e); and the facts supporting each ground. It is filed and served as Rule 32 provides.
Grounds. The court shall grant the motion where the defendant establishes:
that the failure to appear was not voluntary, or resulted from excusable neglect; or
that a requirement of 6 R. Stat. § 131.501(c) or (d), or of Rules 18.1 and 18.3, was not satisfied.
Burden; Standard. The defendant bears the burden by a preponderance of the evidence. In determining whether a failure to appear resulted from excusable neglect the court shall consider the factors stated in Rule 46(12), so far as they may be applied, together with the defendant’s access to the proceeding communications and to the electronic filing system and any circumstance beyond the defendant’s control.
No Discretion. Where a ground is established the court has no discretion to deny the motion, and the seriousness of the offence, the strength of the evidence, and the burden of a new trial are not grounds for denial.
Expedited Determination.
The State shall respond within twenty-four (24) hours after service.
The court shall hear the motion not later than forty-eight (48) hours after it is filed, in open court in the proceeding communications of the case and upon the record.
The court shall decide the motion not later than twenty-four (24) hours after the conclusion of the hearing, and shall enter findings upon each ground.
Effect of an Order Vacating.
The judgment of conviction and the sentence are vacated, and the case stands for trial.
A verdict or finding of not guilty upon any count is not disturbed, and Rule 27 governs the plea of former jeopardy.
The new trial shall commence not later than one hundred sixty-eight (168) hours after the entry of the order, and the period prescribed by Rule 19(3) is computed anew from that entry.
The clerk shall ascertain and enter upon the docket every period of confinement served upon the vacated sentence. Upon any sentence imposed after the new trial, credit for those periods is governed by Rule 28.1(f) and 6 R. Stat. § 131.311, under which credit may be given at the discretion of the state judge.
The record of the vacated trial is available to the defendant without cost, and the testimony given at it is admissible at the new trial only as the Ridgeway Rules of Evidence permit.
Denial. An order denying a motion under this rule is a final order from which the defendant may appeal to the Supreme Court. Rule 35(2)(e).
Successive Motions. A defendant may make one motion under this rule as of right. A further motion shall be entertained only upon a ground which could not with reasonable diligence have been raised in the first motion.