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Mills v. Commonwealth5/19/2005
otion by order dated October 14, 2003. Appellant moved the Court to reconsider, and we withdrew the October 14, 2003, order and passed a decision on the issue to the merits of the appeal.
Appellant argues that CR 59.05 does apply to RCr 11.42 proceedings. In support of this contention, Appellant cites to Crane v. Commonwealth, where we noted that "CR 59.05 is applicable to criminal cases., The context of that statement is important. Crane involved a direct appeal from a wanton murder conviction. The appellant had previously been convicted, but his conviction was reversed by the federal courts in a habeas action. At his second trial, the appellant moved to recuse the judge, who had presided at the first trial, because of comments the judge allegedly made during the sentencing phase of the first trial. After an evidentiary hearing, the judge denied the motion. The appellant raised the issue in his appeal. We noted that the appellant had not attacked the final judgment with a CR 59.05 motion, even though the rule was applicable to criminal cases. We noted several other reasons why the appellant was not entitled to relief, including the fact that his original motion to disqualify the judge did not include the necessary affidavit, thus rendering the motion deficient. As such, the statement regarding CR 59.05 was not essential to the holding and does not control the result in this case.
It is also important to note that the statement in Crane that CR 59.05 applied to criminal proceedings was predicated on Silverburq v. Commonwealth, which only addressed the issue in passing. In Silverburq, the trial court entered an order modifying its sentence on a perjury conviction. The modification order, however, was not entered until thirty-eight days after the judgment imposing the sentence was entered. We noted that the civil rules control when the criminal rules do not provide a time period for action, and that because there was no relevant time-period listed in the criminal rules for the modification, the ten-day time period in CR 59.05 applied. Because the trial court had lost jurisdiction over the case after the ten-day period, we held that the modification order was void.
Even if Crane is correct that CR 59.05 applies to criminal proceedings, it is not clear that the rule applies to all aspects of criminal procedure or what effect it has on the running of the time to file a notice of appeal. RCr 13.04 provides that the civil rules will be applicable to criminal proceedings, but only "to the extent [the civil rules are] not superseded by or inconsistent with the Rules of Criminal Procedure." RCr 11.42 provides a means to collaterally attack a sentence imposed. Though RCr 11.42 and CR 59.05 provide similar relief, we cannot say that RCr 11.42 is inconsistent with or supersedes CR 59.05. This is especially true when we consider that CR 59.05 allows for a motion to alter, amend, or vacate a "judgment" and RCr 11.42(7) contemplates the issuance of a "final order or judgment of the trial court in a proceeding brought under this rule." As such, we must admit that the statements in Crane and Silverburg were technically correct, at least insofar as we cannot say that any of the civil or criminal rules prohibits a defendant from filing a motion under CR 59.05 after the trial court rules on the RCr 11.42 motion.
That a defendant has a right to file such a motion, however, does not directly address the issue before us because the Commonwealth's ultimate claim is Appellant's notice of appeal was filed well outside the thirty-day time period that began running when the trial court overruled the RCr 11.42 motion. There is no question that Appellant's notice of appeal was not filed within thirty
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