To provide competent, quality representation in post-trial proceedings, counsel must possess the education, training, and experience specified in Guideline 1.2 and in addition be familiar with the Rules of Appellate Procedure and any local rules of the courts of appeal.
A. Counsel should be familiar with the procedures applicable to a motion requesting a new trial including:
The time period for filing such a motion;
The effect it has upon the time to file a notice of appeal;
The grounds that can be raised;
The evidentiary rules applicable to hearings on motions for new trial, including the
requirement that factual allegations in the motion, or affidavits in support of such factual allegations, must be sworn to;
The requirement that a motion for new trial be timely “presented” to the trial court in conformance with Rule of Appellate Procedure 21.6 in order to obtain a specific hearing date and preserve for appeal a claim that a request for a hearing was erroneously denied;
The time period for receiving a ruling on a motion for new trial, after which the motion is overruled by operation of law; and
The requirement that a trial court make written findings if a motion for new trial is granted.
If a judgment of guilty has been entered against the client after trial, counsel should consider whether it is appropriate to file a motion for a new trial with the trial court. In deciding whether to file such a motion, the factors counsel should consider include:
The likelihood of success of the motion, given the nature of the error or errors that can be raised;
The effect that such a motion might have upon the client's appellate rights, including whether the filing of such a motion is necessary to, or will assist in, preserving the client's right to raise on appeal the issues that might be raised in the new trial motion because of the opportunity to establish facts not in the trial record;
The effect filing a motion for new trial will have on the time period for perfecting an appeal;
Whether, after explaining to the client the client’s rights to submit a motion for new trial, the client desires that such a motion be filed; and