About the Office
Mission, Vision, and Values
Death Penalty Department
Clemency and Schedule
Mitigation & Investigation
Wrongful Conviction Project
Policy & Outreach
Policy & Outreach
Forensic Training Unit
2016 Public Defender Summit
2016 Juvenile Defender Summit
Welcome To The Library
Criminal Law Casebook
Pro Se Resources
Immigration Reference Guide
Standards & Guidelines
Attorney Billing Program
Contact the Office
Contact our Staff
Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Criminal Rule 33 -- New trial.
-- New trial in cases tried before a magistrate.
-- Causes for new trial.
-- Application for new trial.
-- Causes to be sustained by affidavits.
-- New trial.
-- When new trial shall not be granted.
-- Motion not necessary for appellate review.
For cases on misconduct of the prosecuting attorney (Crim. R. 33(A)(2) see
Arguments of Counsel
For cases on the sufficiency of proof see
Weight and Sufficiency of the Evidence
For cases on jury misconduct, see
State v. Franklin
, Greene App. No. 2002 CA 77,
-- A motion for a new trial does not lie from a guilty plea, since it represents a knowing, voluntary and intelligent waiver of the right to trial. The proper remedy is a motion to withdraw the guilty plea.
State v. Jones
(1994), 71 Ohio St 3d 293 -- Article IV, Sec. 3(B)(1)(f) of the Ohio Constitution does not confer upon the court of appeals the authority to grant a motion to a new trial.
State v. Schiebel
(1990), 55 Ohio St. 3d 71 -- Paragraph one of the syllabus: "A motion for a new trial pursuant to Crim. R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion." Also see
State v. Matthews
(1998), 81 Ohio St. 3d 375, 378.
State v. Sutorius
(1997), 122 Ohio App. 3d 1, 7 -- When a motion for new trial is based on the erroneous admission of evidence, the standard for review is not abuse of discretion, but rather if admission was erroneous as a matter of law and prejudiced the defendant by affecting his or her substantial rights.
State v. Saunders
(1994), 98 Ohio App. 3d 355 -- Trial court erroneously overruled motions for new trial or mistrial based upon prosecutorial misconduct during closing argument. At p. 358: "A motion for mistrial is addressed to the sound discretion of the trial court.
State v. Glover
(1988), 35 Ohio St. 3d 18...For the most part, a motion for a new trial pursuant to Crim. R. 33 is also addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
State v. Schiebel
(1990), 55 Ohio St. 3d 71...However, when the motion addresses prosecutorial misconduct, a reviewing court must undertake a due process analysis to determine whether the conduct of the prosecutor deprived the defendant of his or her due process right to a fair trial.
State v. Johnston
(1988), 39 Ohio St. 3d 48, 60..."
State v. Schlee
, 117 Ohio St. 3d 153,
-- Syllabus: "The trial court may recast an appellant‘s motion for relief from judgment as a petition for postconviction relief when the motion has been unambiguously presented as a Civ.R. 60(B) motion." The opinion endorses borrowing from the Civil Rules when the Criminal Rules do not make specific provision, so 60(B) motions remain viable. But Crim.R. 35 does cover postconviction proceedings, so there is no need to borrow. Concurring opinion faults "recasting" unambiguous motions, and calls for denial as improper which would permit refilling under the proper procedural rule.
State v. Irwin
, 184 Ohio App. 3d 764,
-- ¶67-71: Crim. R. 43 does not provide that the defendant has the right to be present at a hearing on a motion for a new trial. ¶170-204: Motion for new trial should have been granted. Evidence pointed to a confession by another. He denied confessing, and passed a polygraph, but polygraph should not have been allowed in evidence without a stipulation. Prosecutor backdoored the defense by attaching polygraph results to last minute memo contra. Defense counsel was ineffective for having called the polygrapher, thus placing the results in evidence. Judge should have weighed a jury’s assessment of the newly discovered evidence rather than his own.
State v. Burke
, Franklin App. No. 03AP-1241,
-- In a death penalty case, appellate counsel was ineffective by waiting five years to file a motion for a new trial as suggested by both the trial court and the court of appeals during earlier proceedings. Because the omission was counsel's, and the outcome would likely have been different otherwise, the trial court erred in dismissing the motion based on unacceptable delay.
State v. Filchock
, 166 Ohio App. 3d 611,
-- Though the court of appeals previously affirmed the denial of postconviction relief based on ineffective assistance of counsel, the opinion states the same matters might warrant granting a motion for a new trial. Retirement of the original trial judge and other circumstances establish it was error to deny that motion without a hearing five years after it was made.
State v. Johnson
, 155 Ohio App. 3d 145,
-- It is within the court's discretion whether to hold a hearing on a motion for a new trial premised on the affidavit of another taking responsibility for the crime. Applying
State v. Petro
(1947), 148 Ohio St. 505, and looking to the facts of the case, the affidavit did not disclose a strong possibility that there would be a different outcome if a new trial were granted.
State v. Hoop
(1999), 134 Ohio App. 3d 627 -- Defendant sought to obtain name of potential exculpatory witness known to the investigator retained by counsel for a codefendant. Before trial he asserted he believed such a witness existed, but in a motion for a new trial it was alleged that the investigator had confirmed the existence of such a witness. (1) No
hearing was required before trial, but the court erred in refusing to conduct a hearing once the existence of the witness had been confirmed. (2) Claims of Fifth Amendment privilege, attorney-client privilege and work product do not bar the hearing, but are to be addressed at it. Opinion discusses manned in which such claims may be overcome.
State v. Roberts
(2001), 141 Ohio App. 3d 578 -- Student who agreed to be a snitch won a new trial after state called him to testify, which it was claimed ratified the initial agreement. Reversed as motion for a new trial was not timely. Also see
State v. Roberts
, Wood App. Nos. WD-03-001. WD-02-66,
where award of new trial on remand is affirmed. ¶ 11: "...(W)hen a motion for new trial is granted, we conclude that it is within the trial court's discretion whether or not to reopen factual determinations which have already been fully litigated."
State v. Johnston
(1988), 39 Ohio St. 3d 48, 57-60 -- Time for the filing of a motion for a new trial runs from the verdict and not from the time the judgment in the case becomes final (as with the filing of the trial judge's opinion in a capital case). However, the trial court may consider an untimely motion, and it does, the defendant has a right to appellate review.
State v. Walden
(1984), 19 Ohio App. 3d 141 -- Headnote 1: "Under Crim. R. 33(B), a party alleging juror and witness misconduct is unavoidably prevented from filing a motion for new trial within fourteen days after the verdict if the party had no knowledge of the existence of the ground supporting the motion for new trial and could not have learned of the existence of that ground within the time prescribed for filing in the exercise of reasonable diligence."
State v. O'Banion
(1970), 26 Ohio App. 2d 285 -- If the defendant files a motion for a new trial, it is the duty of the court to determine the merits of the motion and it is reversible error to order the motion stricken from the record.
State v. Williams
(1993), 86 Ohio App. 3d 37 -- Trial court did not have jurisdiction to hear motion for new trial filed after the notice of appeal. Court of appeals had jurisdiction to determine the appeal, which would have been obviated had the motion been granted.
State v. Thomas
(1996), 111 Ohio App. 3d 510 -- Trial court was allowed to "upon more mature reflection" change it decision to grant defendant's motion for new trial. Initial decision had been journalized. State filed a motion seeking reconsideration. Decision is at odds with
Cleveland Heights v. Richardson
(1983), 9 Ohio App. 3d 152 holding that trial courts are without jurisdiction to hear motions for reconsideration as the Criminal Rules make no provision for such motions. Also see
Pitts v. Department of Transportation
(1981), 67 Ohio St. 2d 378.
Toledo v. Stuart
(1983), 11 Ohio App. 3d 192, 293 -- If the defendant fails to produce the supporting affidavits required by Crim. R. 33(C), a court may summarily dismiss a motion for a new trial, without conducting a hearing. Also see
State v. Rogers
(1990), 68 Ohio App. 3d 4.
State v. Girts
(1997), 121 Ohio App. 3d 539, 566 -- "Bluntly put, the motion for a new trial lacked serious substantive grounds and we find that the designated (substitute) trial judge did not err by ruling on the motion without first reading a transcript of the entire trial."
State v. Matthews
(1998), 81 Ohio App. 3d 375 -- Syllabus: "Pursuant to
, a trial court's order granting the defendant a new trial in a criminal case is a final appealable order which the state may appeal by leave of court. (
State v. Huntsman
, 18 Ohio St. 2d 206...no longer applicable.)"
Grounds for Relief
Grundy v. Dhillon
, 120 Ohio St. 3d 415,
– Syllabus: "(1) To obtain a new trial in a case in which a juror has not disclosed information during voir dire, the moving party must first demonstrate that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information. To demonstrate prejudice, the moving party must show that an accurate response from the juror would have provided a valid basis for a for-cause challenge… (2) In determining whether a juror failed to answer honestly a material question on voir dire and whether that nondisclosure provided a basis for a for-cause challenge, an appellate court may not substitute its judgment for the trial court‘s judgment unless it appears that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable…"
State v. Lordi
(2000), 140 Ohio App. 3d 561, 569-572 -- A motion for a new trial may be used to advance an ineffective assistance of counsel claim, though it is suggested a petition for postconviction relief might be more effective and appropriate.
State v. Davis
, Stark App. No. 03-178,
-- In discovery prosecutor only turned over informant's record in Ohio. New trial was ordered after additional record in Michigan was discovered. Prosecutor appealed, claiming the additional information was not material to the defense. Since the state failed to provide a transcript demonstrating this to be the case, regularity of proceedings in the trial court is presumed and no abuse of discretion was demonstrated.
State v. Adams
, Trumbull App. No. 2000-T-0149,
-- In a capital trial the defense sought a new trial based on prosecutorial misconduct in the form of discovery violations. A copy of the prosecutor's file was made a part of the appellate record under seal. It was not reviewed until after arguments, with the parties then supplying supplemental briefs. Majority affirms. See dissent as to why a new trial should have been allowed.
State v. King
(1989), 63 Ohio App. 3d 183 -- It was an abuse of discretion to deny a motion for a new trial where, in a death penalty prosecution, a psychological evaluation performed during the interval between the guilt and penalty phases revealed that the defendant's mental state at the time of the offense was such as to meet the Ohio standard for being found not guilty by reason of insanity.
State v. Hipkins
(1982), 69 Ohio St. 2d 80, 83 -- Conversation between a witness and a juror during the course of the trial may be the basis for granting a new trial only if it is shown that the decision may have been influenced by the conversation. Also see
State v. Taylor
(1991), 73 Ohio App. 3d 827.
Marcoguiseppe v. State
(1926), 114 Ohio St. 299 -- Paragraph two of the syllabus: "In the trial of two defendants jointly indicted, where all the evidence is not equally applicable to both defendants, and where there is a joint verdict of guilty as to both defendants, it is not error as a matter of law to sustain a motion for a new trial as to the one and overrule it as to the other." Also see
State v. Ciarcia
(1984), 21 Ohio App. 3d 107 where motion was granted as to codefendant in exchange for promise to provide information in another case.
State v. Herbert
(1936), 44 Ohio App. 87, 103-105 -- Motion for a new trial should have been granted where juror in a case involving embezzlement from a savings and loan denied any connection with the company during voir dire but was found to have had personal knowledge of, and an interest in, a transaction comparable to that being prosecuted.
Hudson v. Louisiana
(1981), 450 U.S. 40 -- Retrial is barred if the court grants a motion for a new trial based on the insufficiency of the evidence.
Cornwell v. State
(1922), 106 Ohio St. 626 -- Continuous and serious disagreements between the two attorneys representing the defendant in a capital case, in the presence of the court and jury, denied the defendant a fair trial and warrants the granting of a new trial.
State v. Boyd
(1989), 63 Ohio App. 3d 790 -- New trial warranted where the judge's remarks during trial and threats to jail defense counsel could have been construed by the jury as comments on the merits of the defendant's case.
State v. Schaim
(1992), 65 Ohio St. 3d 51 -- Trial court should have conducted an evidentiary hearing on defendant's claim that a hearing impairment had prevented him from hearing significant portions of the testimony at trial.
State v. Abi Sarkis
(1988), 41 Ohio App. 3d 333, 341-343 -- Inconsistencies between victim's testimony at trial and in deposition taken as a part of related civil suit constituted newly discovered evidence warranting a new trial.
Newly Discovered Evidence
State v. Brown
, 186 Ohio App. 3d 309,
– As execution neared, the trial court ruled motion for a new trial based on newly discovered evidence was not timely filed. Because the court proceeded to determine the motion on its merits the assignment of error concerning this ruling is moot. (¶15) Opinion rehearses standards for review of newly discovered evidence, recantantation and
State v. Keith
, 192 Ohio App. 3d 231,
, ¶41-42 – If the prosecutor has suppressed the newly discovered evidence , the defendant’s burden is to show his substantial rights were materially affected. He is not required to demonstrate that the newly discovered evidence would have resulted in an acquittal. Materiality to guilt or innocence means more than “might have helped.”
State v. Davis
, 131 Ohio St. 3d 1,
-- Syllabus: “(1) Pursuant to Sections 2(B)(2)(c) and 3(B)(2), Article IV of the Ohio Constitution, a court of appeals has jurisdiction, in a case in which a death penalty has been imposed, to consider the appeal of a trial court’s denial of a motion for a new trial based on newly discovered evidence. (2) A trial court has jurisdiction to decide a motion for a new trial based on newly discovered evidence in a case in which the death penalty has been affirmed on appeal.”
State v. Condon
, 157 Ohio App. 3d 26,
-- Newly discovered evidence encompasses newly available evidence. A codefendant exercised his Fifth Amendment privilege at Condon's trial, but later furnished an affidavit exculpating Condon on one count. The trial court erroneously overruled motion for leave to file a motion for a new trial.
State v. Luckett
(2001), 144 Ohio App. 3d 646 -- Trial court abused its discretion in granting motion for new trial based on DNA testing by not making a finding in accordance with
State v. Petro
(1947) 148 Ohio St. 505, that there was a strong probability that a new trial would result in a different outcome. See dissent.
State v. Mathis
(1999), 134 Ohio App. 3d 77 -- Defendant was denied leave to file a motion for new trial based on newly discovered evidence. Majority faults defendant for delay in filing after obtaining information. Dissent states focus should be on justification for delay beyond the initial 120 days, not on filing delay.
State v. Puckett
(2001), 143 Ohio App. 3d 132 -- Witnesses signed affidavits indicating they had testified untruthfully, but further investigation indicated that the affidavits were in part untruthful. Court did not abuse its discretion by overruling motion for new trial based on newly discovered evidence.
State v. Petro
(1947), 148 Ohio St. 505 -- Syllabus: "To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. (
State v. Lopa
, 96 Ohio St., 410, approved and followed.)"
Dayton v. Martin
(1987), 43 Ohio App. 3d 87, 90 -- "...(W)e do not read
as establishing a per se rule excluding newly discovered evidence as a basis for a new trial simply because that evidence is in the nature of impeaching or contradicting evidence. The test is whether the newly discovered evidence would create a strong probability of a different result at trial, or whether it is merely impeaching or contradicting evidence that is insufficient to create a strong probability of a different result."
State v. Lopa
(1917), 96 Ohio St. 410, 411 -- The granting of a motion for a new trial on the grounds of newly discovered evidence is necessarily committed to the wide discretion of the trial court, and the ruling will not be reversed absent an abuse of that discretion. Also see
State v. Williams
(1975), 43 Ohio St. 2d 88, 93-94 and
United States v. Johnson
(1946), 327 U.S. 106, 112, suggesting the advantage the trial judge has in assessing the significance of the new material because of his familiarity with the case.
State v. Blankenship
(1996), 111 Ohio App. 3d 198 -- Court granted husband a new trial when coroner's testimony at wife's second trial indicated a broader time period during which fatal head injury to child might have been incurred. Though motion fell beyond the 120 day time limit, and entry did not make a specific finding that the defendant was unavoidably from making discovery during the 120 day period, failure to set forth finding made judgment voidable rather than void, defeating prosecutor's collateral attack upon a judgment which it had previously failed to appeal. Compare
State v. Hill
(1996), 112 Ohio App. 473 where the court concludes matters disclosed in subsequent civil litigation were not necessarily contradictory.
State v. Shepard
(1983), 13 Ohio App. 3d 117 -- A defendant has not exercised reasonable diligence in finding newly discovered evidence when the witnesses in question were on the prosecutor's list of witnesses, the information they could add appeared in a newspaper article during the trial and where the defendant waited six weeks after discovering the information before filing his motion. In addition the defendant had failed to submit the necessary affidavits supporting his claim and failed to demonstrate that the outcome of a second trial would be different.
State v. Smith
(1986), 30 Ohio App. 3d 138 -- A court may overrule a motion for a new trial when the newly discovered evidence is fully rebutted by the evidence put on by the state.
State v. Jarosyk
(1973), 39 Ohio App. 2d 35 -- Hurdles in the way of considering polygraph results as newly discovered evidence are timing of their offer and admissibility. Compare
United States v. Riding
(E.D. Mich. 1972), 350 F. Supp. 90.
State v. Pinkerman
(1993), 88 Ohio App. 3d 158 -- After twelve years, cellmate had confessed to the homicide defendant had been convicted of. While Crim. R. 33(B) provides many time limits, it does not provide one for the filing of a motion for leave to file a motion for a new trial, based on newly discovered evidence, after the initial 120 day period has passed. Finding the defendant was unavoidably prevented from filing within the initial 120 days, appellate court remands for defendant to file the actual motion within seven days of judgment granting leave to do so.
State v. Mathis
(1984), 16 Ohio App. 3d 13 -- Headnote: "A motion for new trial based upon discovery of new evidence as a result of a 'substantial' recall of memory following brain surgery was properly overruled where the recall was both incomplete and contradictory of the physical evidence produced at trial."
State v. Barber
(March 30, 1982), Franklin Co. App. No. 81AP-891, unreported (1982 Opinions 812, 814-818) -- Witness had exercised his Fifth Amendment privilege at trial, but afterwards waived the privilege. While this may be considered as newly discovered evidence, it was not an abuse of discretion to overrule the motion for a new trial where the added information did not completely exonerate the defendant. Also see
State v. Mishler
(February 25, 1975), Franklin Co. App. No. 74AP-453, unreported (1975 Opinions 381) -- Information from codefendant merely cumulative to the defendant's own testimony.
State v. Rife
(October 9, 1980), Franklin Co. App. Nos. 80AP-77, 172, unreported (1980 Opinions 3227, 3232-3244) -- Codefendant's statement treated as newly discovered evidence, though court concluded outcome would not have been different at a second trial.
State v. Parker
, 178 Ohio App. 3d 574,
-- Motion for leave to file a delayed motion for a new trial was properly overruled because the defendant did not provide sufficient detail as to how recantation came to light or why there was a long delay. Statement that both the witness and the defendant were inmates was not enough to excuse delay in the view of the majority. Nor does the substance of the witness' affidavit indicate the outcome at a new trial would be different.
State v. McConnell
, 170 Ohio App. 3d 800,
-- Father is serving life for rape of his 8-year old daughter. Three years later the child approached her mother and said she felt "very bad," and that she may have dreamed something happened. Defendant sought leave to move for a new trial. The pivotal issue is whether he was unavoidably prevented from filing a timely motion. The trial court found he should have promptly pursued recantation. The court of appeals believes the bona fides are greater under the circumstances presented and as a matter of policy, child victims should not be hounded in the time immediately following trial. A hearing was required.
State v. Pirman
(1994), 94 Ohio App. 3d 203 -- (1) Witness recanted trial testimony leading to motion for a new trial. Prosecutor charged witness with perjury and witness exercised Fifth Amendment privilege at hearing on the motion. Prosecutorial vindictiveness was not raised in the trial court and appeals court declines to find plain error. (2) Recantation raises the question when the witness was telling the truth, and does not as a matter of law entitle the defendant to a new trial.
State v. Walker
(1995), 101 Ohio App. 3d 433 -- Rape victim recanted prior testimony, now saying acts occurred but were consensual. No abuse of discretion in denying new trial or postconviction relief as defendant's testimony at trial had been that acts never took place.
State v. Tijerina
(1994), 99 Ohio App. 3d 7 -- Letter from victim to sister seemingly recanting testimony led to a more ambitious affidavit prepared by counsel. Testimony matched affidavit but victim had recanted recantation when he spoke with the prosecutor the night before the hearing. It was within the court's discretion to conclude the change in the victim's account was for the benefit of his sister and not because his prior testimony was false.
State v. Wright
(1990), 67 Ohio App. 3d 827 -- Where the defendant submitted the affidavit of a witness recanting his testimony, it is error for the court to overrule a motion for a new trial based on newly discovered evidence, without conducting a hearing, on the basis that the defendant had not established by clear and convincing evidence that he had been unavoidably prevented from earlier discovery of the evidence.
State v. Curnutt
(1948), 84 Ohio App. 101 -- When a new trial is sought on the basis that a witness has recanted his testimony, the question is when did he tell the truth. Recantation by itself does not entitle the defendant to a new trial. Also see
State v. Kicak
(1959), 83 Ohio L. Abs. 289.
Toledo v. Easterling
(1985), 26 Ohio App. 3d 59 -- When a motion for new trial is based on the recantation of testimony, the court may overrule the motion if it concludes the recantation is false. Victim of domestic violence had signed affidavit to the effect her testimony at trial had been false, but at the hearing on the motion for a new trial repudiated the affidavit saying it was merely an attempt to reconcile differences with her husband.
Relief from Judgment
State v. Fulk
, 172 Ohio App. 3d 635,
-- Defendant sought relied from claimed unconstitutional sentence citing Civil Rule 60(B). In reality this was a petition for postconviction relief. Remanded to the trial court for dismissal, because the motion was filed beyond the prescribed 180 days.
State v. Scruggs
, Franklin App. No. 02AP-621,
-- Without deciding whether Civil Rule 60(B) motions may be entertained in criminal case via the procedure not otherwise specified language of Criminal Rule 57, court notes such claims have been considered in the past and goes on to find no abuse of discretion in overruling motion. Also see
State v. Wooden
, Franklin App. No. 02AP-473,
, ¶ 8;
State v. Wells
(March 30, 1993), Franklin App. No. 92AP-1462;
State v. Hasenmeir
(March 18, 1994), Erie App. No. E-93-33;
State v. Riggs
(October 4, 1993), Meigs App. No. 503.
In re D.H.
, Cuyahoga App. Nos. 82515, 82551, 82552, 82606 and 82607,
-- Failure to previously specify grounds for relief under Civil Rule 60(B) is fatal to support agency's efforts to appeal trial court's adverse ruling on the motions.
State v. Plassman
, Fulton App. No. F-03-017,
-- Civil Rule 60(B) relief from judgment is available in criminal cases, but only when the defendant may not pursue other avenues of relief such as breach of contract, declaratory judgment, habeas corpus and postconviction.
Miller v. Walton
, 163 Ohio App. 3d 703,
-- Defendant claimed he had been denied his right to jury trial. Postconviction was not barred by res judicata as the defendant's claim lay outside the record and could not have been raised on appeal. Though convicted of a misdemeanor, postconviction was filed in common pleas court. Since the petition must be filed in the trial court, and municipal courts do not have jurisdiction to hear postconviction actions, petition was properly dismissed. Habeas doesn't lie because defendant was placed on community control. Suggested that the remedy is a Civ. R. 60(B) motion for relief from judgment.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.