Opinion
File No. 8770
Whereupon the defendant being found guilty as charged, the state's attorney moved for immediate sentence, and the defendant's counsel raised no objection and made no suggestion that he contemplated filing a motion to set the verdict aside, and thereupon the court imposed sentence, the defendant was estopped from thereafter moving to set the verdict aside (Practice Book [1934] § 229). The proper procedure, when the state moves for immediate sentence after the acceptance of a verdict of guilty, is to advise the court that a motion to set the verdict aside will be filed. While motion to set the verdict aside was filed within 24 hours after the verdict had been accepted, as required by section 229 of the Practice Book (1934), the motion did not come to the attention of the court until two weeks thereafter. Section 6488 of the General Statutes, Revision of 1930, provides that whenever any person shall be convicted of an offense for which the punishment may be confinement in state prison, the court must impose sentence within ten days of conviction unless a stay is ordered. The purpose of the statute is to permit motions to be filed and passed upon before sentence is imposed. The sentence of the court is its judgment based on the jury's findings. The time to set the verdict aside having expired, the court is without power to set the verdict aside unless that judgment is reopened.
MEMORANDUM FILED FEBRUARY 28, 1939.
Lorin W. Willis, State's Attorney, for the State.
Israel Jacobs, of New Haven, for the Defendant.
Memorandum on motion to set aside verdict.
The jury having found the accused guilty as charged, the state's attorney moved for immediate sentence. Counsel for the defendant raised no objection to this procedure and made no suggestion that he contemplated filing a motion to set the verdict aside. Thereupon, the court imposed a sentence in the state prison.
Within 24 hours after the verdict had been accepted, a motion to set the verdict aside was filed, although this did not come to the court's attention until perhaps two weeks thereafter. In the meantime, the prisoner had been transported to Wethersfield where he is now confined in the penitentiary.
Under our rules, an accused who has been found guilty by a jury may file a motion to set the verdict aside within 24 hours after it has been accepted by the court. Practice Book (1934) § 229. This rule applies to both criminal and civil cases. State vs. Chin Lung, 106 Conn. 701. However, one may waive his right or be estopped to urge that a motion be considered, even in a criminal case. Leopold vs. State, 114 Conn. 729. There are many things which an accused may and very frequently does waive during the course of trial, for example, the reading of the information, trial by jury, the right to request and obtain a more specific statement of the charge set forth in the information, and the like. By failing to advise the court in the instant case that a motion was to be presented, the defendant is estopped, after sentence, from being heard. The proper procedure, it seems to me, when the state moves for immediate sentence after the acceptance of a verdict of guilty, is to advise the court that a motion to set aside the verdict will be filed. The convicted person may then be remanded to the county jail or liberated under bail until the procedural step is taken and the motion thereafter heard upon its merits. Section 6488 of the General Statutes, Revision of 1930, provides that whenever any person shall be convicted of an offense for which punishment may be confinement in the state prison, the court must impose sentence within ten days of conviction unless a stay is ordered. It is apparent that the purpose of this statute is to permit motions to be filed and passed upon before sentence is imposed.