Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The defendant was found guilty of armed robbery and seeks a review of the conviction. Prior to the date fixed for oral argument, the State moved for dismissal on the ground that the notice of appeal was not filed within the time prescribed by R.R. 1:3-1(a).
The record discloses that the jury verdict of guilty was returned on October 25, 1954. Sentence was imposed on November 19. For reasons that are not material to our problem, Petrolia was re-sentenced on November 22, 1954. The notice of appeal was docketed on May 4, 1955, more than four months later.
R.R. 1:3-1(a) requires the appeal in a criminal cause to be taken within three months after final judgment.
On the chronology recited, it is manifest that the appeal is out of time and must be dismissed unless for some reason recognized by the rules the running of the time was tolled. Stern v. Glassen , 10 N.J. 596 (1952); State v. Janiec , 6 N.J. 608 (1951); In re Pfizer , 6 N.J. 233 (1950).
Defendant contends that a tolling occurred because during the three-month period a motion was made for a new trial on the ground of newly discovered evidence. This he claims rendered R.R. 1:3-3(c) applicable and gave timeliness to his appeal.
The motion for new trial on the ground of newly discovered evidence was made on November 22, 1954. It was denied by order entered on March 18, 1955.
"The running of the time for an appeal from a final judgment in criminal causes shall be tolled by a motion for a new trial * * *
made within 10 days after the determination of guilt, but the remaining time shall again begin to run from the date of the entry of an order denying such a motion."
This rule contemplates the making of the motion within ten days after the verdict, not after the judgment. Such is the significance of the words "after the determination of guilt" as distinguished from the judgment which is recorded after sentence. Cf. R.R. 3:7-10(d).
Thus an application for a new trial based on newly discovered evidence, if made within the prescribed ten-day period, stops the running of the time for appeal. And the unelapsed time constitutes the period remaining after the disposition thereof for the taking of the appeal. In the present case, the motion was presented 28 days after the verdict. Being 18 ...