Opinion
No. 248-3.
March 19, 1971.
[1] New Trial — Proceedings — After Notice of Appeal — Remand — Propriety. An appellate court should authorize an appellant to file, and a superior court to consider, a motion for a new trial upon the appellant making a prima facie showing of his right to such new trial, in order to preserve to a convicted person the relief provided by CR 60(b), which permits relief from a judgment on the basis of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under CR 59(b). [See 5 Am.Jur.2d, Appeal and Error § 963.]
Motion filed in the Court of Appeals, March 19, 1971, for leave to file a motion for a new trial in the superior court. Granted.
Michael D. Finney (of Walters Whitaker), for appellant.
Lincoln E. Shropshire, Prosecuting Attorney, and Gary G. McGlothlen, Deputy, for respondent.
On April 15, 1970 the appellant Gene Calvin Hatch was found guilty of two counts of first-degree forgery and thereafter filed timely notice of appeal to this court.
Appellant now petitions this court for an order authorizing him to file, and the Superior Court for Yakima County to hear and determine, his motion for a new trial on the grounds of newly discovered evidence. The newly discovered evidence alleged is the admission of one Jack Lewis Deigh in the form of a sworn affidavit that he, Deigh, committed the crimes for which the appellant now stands convicted. Also presented is the affidavit of appointed trial counsel for appellant, in which it is asserted that the newly discovered evidence alleged could not have been discovered by the exercise of due diligence at the time of trial.
[1] Appellant's notice of appeal has deprived the trial court of jurisdiction for all purposes except those expressly or impliedly granted under CAROA 15. For that reason the present procedure is proper and required. To hold otherwise would inequitably foreclose petitioner from the relief provided by Rule 60(b) of the Civil Rules for Superior Court. Palmer v. Cozza, 2 Wn. App. 900, 471 P.2d 102 (1970). No opinion is here expressed as to whether a motion for a new trial when made to the superior court should be granted or denied.
Appellant's petition for leave to file such a motion is granted and the Superior Court of Yakima County is authorized and directed to consider a motion for new trial by appellant based upon the grounds alleged.