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Rule 45 – Computing and Extending Time

May 14, 2021 | Criminal Procedure, Tennessee

(a) Computing Time. The following rules apply in computing any period of time specified in these rules or in any court order:

(1)Day of Act or Event Excluded. Exclude the day of the act or event from which the designated period of time begins to run.
(2)Last Day of Period Included. Include the last day of the period unless it is:

(A) a Saturday, Sunday, or legal holiday; or
(B) when the act to be done is the filing of a paper in court, a day on which the office of the court clerk is closed or on which weather or other conditions have made the clerk’s office inaccessible.

When the last day is so excluded, the period runs until the end of the next day that is not one of the aforementioned days.

(3)Exclusion from Periods of Less Than Seven Days. Exclude intermediate Saturdays, Sundays, and legal holidays when the period of time is less than 7 days.
(4)Definition of Legal Holiday. “Legal holiday” means any holiday listed in Tenn. Code Ann. § 15-1-101.
(b) Extending Time. When an act shall or may be done at or within a specified time, the court for cause shown may at any time extend the period, as follows:

(1) Before End of Specified Time. With or without motion or notice, the court may extend the period if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or
(2)After End of Specified Time. On motion made after the expiration of the specified period, the court may extend the period if the failure to act was the result of excusable neglect;
(3)Exception. The court may not extend the time for taking any action under Rules of Criminal Procedure 29, 33 and 34, except to the extent and under the conditions stated in those rules.
(c) Service of Motions and Affidavits.

(1)Written Motions. A written motion-other than one which may be heard “ex parte”- and notice of the hearing on the motion shall be served not later than 5 days before the time specified for the hearing, unless a different period is set by rule or court order. For cause shown, such an order may be made on “ex parte” application.
(2)Affidavits. An affidavit supporting a motion shall be served with the motion. Opposing affidavits may be served not less than 1 day before the hearing unless the court permits them to be served at a later time.
(d) Additional Time After Service by Mail. Whenever a party has the right to, or is required to, do an act within a prescribed period after the service of a notice or other paper, and the party is served by mail with the notice or other paper, the prescribed period is extended by 3 days.

Tenn. R. Crim. P. 45

As amended by order filed December 21, 2010, effective July 1, 2011.

Advisory Commission Comments.

If a clerk’s office is closed all day on a date other than a Saturday, Sunday, or legal holiday, a lawyer would be unable to gain entrance to file a document on the “deadline.” Consequently Rule 45(a)(2) extends the deadline to the next business day that the courthouse is open or accessible.

Advisory Commission Comments [2011].

Rule 45(a)(4) is amended to define “legal holiday” by reference to statute, Tenn. Code Ann. § 15-1 -101. The status of a day as a legal holiday is statutory; thus, for the purpose of filing papers in court, it does not depend on whether the clerk’s office is open for business. For example, state offices might be open on Columbus Day, pursuant to the governor’s authority under Tenn. Code Ann. § 4-4-105(a)(3) to substitute the day after Thanksgiving for the Columbus Day holiday; in such circumstances, however, Columbus Day is still a “legal holiday” for purposes of computing time periods under the rule. Rule 45(a)(2)(B) also is amended to add a reference to days on which the office of the court clerk is closed.