Reporter’s Notes-2018 Amendment

Rule 45(a) is amended to standardize and simplify the manner of computing the running of time under the rules, adopting what is known as the “day is a day” rule which governs computation of the running of time under Federal Rule of Criminal Procedure 45(a). As in 1995, the rule is amended contemporaneously with V.R.C.P. 6(a) (and V.R.P.P. 6(a) ) so that time is computed identically under all of the rules of procedure. Note that the rule addresses the method of computation of time periods established elsewhere in the rules, and “externally” to the rules by reference, by provision of statute or by rules of appellate procedure. The amendment does not serve to alter such “external” times and deadlines, as in the case of the deadline for filing of presentence investigation reports under Rule 32(c)(3), which is also the subject of statute, 28 V.S.A. §§ 204(c), 204a(a)(5).

For clarity, amended V.R.Cr.P. 45(a) retains the language of the former Vermont rule making its computation provisions apply to a time period in “any applicable statute that does not specify a method of computing time.” Thus, if a statute pertaining to criminal procedure itself specifies the method of computation of time in the particular instance, the provisions of that statute would govern as to the method of computation. By Act No. 11 of 2017, the Legislature amended a number of statutory procedural time periods of less than 10 days to be expressly “business days,” thus making Rule 45(a) inapplicable to them. For consistency, “business days” has been added to a few such time periods in several rules that were taken from one of the amended statutes. Act No. 11 also amended statutory periods of 10 days to 14 days, thus making them consistent with the “day is a day” provisions of Rule 45(a).

As the 2009 Federal Advisory Committee’s Notes point out, the “day is a day” computation method does not apply when a court order establishes a specific date as a deadline or when a statute prescribes a specific method for computing time. The Advisory Committee’s Notes provide a helpful further explanation of the change:

Under former Rule 45(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 45(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same day-and the 10-day period not infrequently ended later than the 14-day period.

Under [the amended rule], all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days-including intermediate Saturdays, Sundays, and legal holidays-are counted, [except that if] the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday.

The phrase “legal holidays” in new Rule 45(a)(l)-(3) is defined in new Rule 45(a)(6).

Of course, if the clerk’s office is inaccessible on the last day or hour, or the day or hour to which the period has been extended, Rule 45(a)(3) provides that the deadline falls on the next accessible or available day or time. Inaccessibility includes failure of the electronic filing system in the event that a document is to be filed in a case electronically. See V.R.E.F. 4(c), and Federal Advisory Committee’s Note to 2009 amendment adding F.R.Cr.P. 45(a)(3). Note that in the rule as amended, former terms “act, event, or default” have been changed to “event” for brevity and simplicity. This change is not intended as a change in meaning.

Under the amended rule, periods of time of less than 11 days in other provisions of the rules would be shortened by the inclusion of intermediate Saturdays, Sundays, and legal holidays. Accordingly, shorter time periods in other rules are being extended by simultaneous amendments, generally following guidelines stated in the Federal Advisory Committee’s Notes.

Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation method-two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period-the 14th day after a Monday, for example, is a Monday. . . . Thirty-day and longer periods, however, were generally retained without change.

An exception under simultaneous amendment is established for a defendant’s notice of alibi, insanity or expert testimony of mental state or condition, under V.R.Cr.P. 12.1, which is amended from 10 days to 28 days prior to trial.

As the Federal Advisory Committee’s Notes indicate, time periods may be either forward-looking or backward-looking. “A forward-looking time period requires something to be done within a period of time after an event. See, e.g., [F.R.Cr.P.] 35(a) (stating that a court may correct an arithmetic or technical error in a sentence ‘[w]ithin 14 days after sentencing.’).” Cf. former V.R.Cr.P. 33 (providing that motion for new trial other than on grounds of newly discovered evidence must be made within 10 days after verdict or finding of guilty or within such further time as the court may fix during the 10-day period). The Federal Advisory Committee Notes further explain that a “backward-looking time period requires something to be done within a period of time before an event. See, e.g., [F.R.Cr.P.] 47(c) (stating that a party must serve a written motion ‘at least 7 days before the hearing date’).” Cf. former V.R.Cr.P. 12.1 (explaining that defendant wishing to offer alibi or insanity defense, or offer expert testimony bearing upon mental condition must provide specified notice to the prosecuting attorney at time of status conference, or “at least 10 days prior to trial,” whichever is sooner).

The last day of a period ending on a weekend or holiday should be determined by counting in the same direction that the time period runs. For example, the Federal Advisory Committee’s Notes suggest, that if

a filing is due within 10 days after an event, and the tenth day falls on Saturday, September 1, 2007, then the filing is due on Tuesday, September 4, 2007 (Monday, September 3, 2007, is Labor Day). But if a filing is due 10 days before an event, and the tenth day falls on Saturday, September 1, then the filing is due on Friday, August 31. If the clerk’s office is inaccessible on August 31, then [the rule] extends the filing deadline forward to the next accessible day that is not a Saturday, Sunday, or legal holiday-no earlier than Tuesday, September 4.

In either the “after” or “before” situation, if the clerk’s office were inaccessible on Tuesday, September 4, the extension would continue until the office was accessible.

Rule 45(a)(6) defines legal holiday to include federal and state holidays.

Rule 45(a)(7) is added consistent with Act No. 11 of 2017, discussed above, to define business day.

Rule 45(b) is amended to provide generally for extension of the time established for an act under the rules, by the court, or on motion filed within the period established for an act, or upon showing of excusable neglect after expiration of the period to act, with the exception of a Motion for Reduction of Sentence under Rule 35, the time for which is expressly established by statute, 13 V.S.A. § 7042(a). Former Rule 45(b) additionally precluded cognizance of untimely motions to extend time for filing a post-trial Motion for Judgment of Acquittal under V.R.Cr.P. 29, Motion for New Trial under V.R.Cr.P. 33, or Motion in Arrest of Judgment under V.R.Cr.P. 34 under all circumstances. Consistent with 2005 amendments to F.R.Cr.P. 45(b)(1)(B), under amended V.R.Cr.P. 45(b), the court upon motion and the establishment of excusable neglect, may extend the time for an act, even after expiration of the time otherwise established for the filing of Rule 29, 33, or 34 motions.

The one-day time period in Rule 45(d) for service of opposing affidavits on motions is changed to 7 days, consistent with V.R.C.P. 6(d) and F.R.C.P. 6(c)(2).

Rule 45(e), providing an additional 3 days for actions required after service is amended for conformity with other rules. V.R.Cr.P. 49(b) adopts by reference the provisions of V.R.C.P. 5 governing service for criminal proceedings as well. Rule 45(e) is amended to adopt the simplified language of F.R.Cr.P. 45(c) as amended in 2007 and follows the federal rule in effect until December 1, 2016 by adding the additional 3 days after service by electronic means if permitted or required under V.R.C.P. 5(b)(4). Federal Rule 45(c) was amended, effective December 1, 2016, to eliminate the 3-day provision for electronic service because, as the Federal Advisory Committee’s notes state, initial concerns with the reliability of electronic transmission “have been substantially alleviated by advances in technology and widespread skill in using electronic transmission.” However, in view of the relatively recent availability and use of electronic transmission in Vermont practice, the 3-day provision encompassing electronic transmission has been retained in the present amendment.