(Applicable to District Court and Superior Court)
(a) Service: When Required. Written motions other than those which are heard ex parte, written notices, and similar papers shall be served upon each of the parties.
(b) Service: How Made. Whenever under these rules or by order of court service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney, unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided for in civil actions.
(c) Notice of Orders and Judgments. If upon the entry of a judgment or order made on a written motion either or both of the parties are not present in court, the clerk shall immediately mail to the absent party or parties a notice of that entry and shall record the mailing in the docket.
(d) Filing. Papers required to be served shall be filed with the court. Papers shall be filed in the manner provided for in civil actions.
(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, three days shall be added to the prescribed period.
This rule is closely patterned after Fed.R.Crim.P. 49. Subdivisions (a), (b) and (d) are identical to their federal counterparts and subdivision (c) has been adopted with slight revision. Subdivision (e) has been taken from Fed.R.Crim.P. 45(e) and Mass.R.Civ.P. 6(d).
Subdivision (a). This subdivision is similar to Fed.R.Civ.P. and Mass.R.Civ.P. 5(a). Service is required “upon each of the parties” to avoid the interpretive questions that arose under the “adverse party” language of the federal rule prior to its 1966 amendment, such as the problem of when is a co-defendant an adverse party. The rule is also designed to promote full exchange of information among all parties. However, no restriction is intended upon agreements among co-defendants or between the defendant and the prosecutor restricting mutual exchange of papers in the interest of eliminating unnecessary expense. Advisory Committee Note to Rule 49.
Service is required of motions, notices and similar papers. The latter category embraces opposing affidavits and the like. But this rule does not apply to service of a summons for a witness under Mass.R.Crim.P. 17, or the execution or service of a warrant or summons under Mass.R.Crim.P. 6. See 8B J. MOORE, FEDERAL PRACTICE para. 49.02 (1978 rev.).
Subdivision (b). The first sentence of this subdivision is the same as the first sentence of Mass.R.Civ.P. 5(b) and Fed.R.Civ.P. 5(b). When a party has appeared and is represented by an attorney, service is required to be made upon the attorney, unless the court orders service to be made upon the party himself in cases where the court deems such service necessary. An order, disobedience of which is punishable as a contempt, or an order to show cause why a party should not be punished for contempt, are papers which the court would, as a practical matter, generally order to be served upon the party himself. A civil contempt proceeding, however, is merely a continuance of the original action and a step in the enforcement of a previous order or judgment, so that service of papers to have a party adjudged in civil contempt may validly be made on his attorney of record, unless it is unreasonable to regard the attorney as a representative of the party at that time. 2 J. MOORE, FEDERAL PRACTICE para. 5.06 (2d ed. 1978).
The second sentence of Mass.R.Crim.P. 32(b) incorporates by reference Mass.R.Civ.P. 4.
Subdivision (c). This subdivision is similar to Fed.R.Crim.P. 49(d) as it appeared prior to its 1966 amendment. The federal rule is an adaptation for criminal proceedings of Fed.R.Civ.P. 77(d). No consequences are attached to the failure of the clerk to give the prescribed notice. However, it is intended that in a case where the losing party, in reliance upon the clerk’s obligation to send a notice, fails to file a timely notice of appeal, the trial judge may, in the exercise of his discretion, vacate the judgment because of the clerk’s failure to give notice and may enter a new judgment. The time period for appeal would then begin to run when the second judgment is entered. See Hill v. Hawes , 320 U.S. 520 (1944). Since oral motions are generally ruled on in the presence of the parties, there can be no reliance on the clerk’s failure to send notice and the applicable time limits for appeal must be observed.
Subdivision (d). This subdivision incorporates by reference Mass.R.Civ.P. 5(d)-(e), which govern the procedure for filing papers. Under Mass.R.Civ.P. 5(e), papers must be filed with the clerk of the court “except that a judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.”
Subdivision (e). This subdivision is identical to Mass.R.Civ.P. 6(a) and Fed.R.Civ.P. 6(e) and to Fed.R.Crim.P. 45(e). The reason for this rule is that under Mass.R.Civ.P. 5(b), service by mail is complete upon mailing, and various prescribed time periods begin to run after service of notice or other papers. This subdivision adds three days to these prescribed periods since a day or more may intervene between the mailing of a pleading or paper and the actual receipt thereof.