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Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 23: Issuance of rescript: Stay of rescript

Effective Date: 02/24/1975
Updates: Amended effective February 24, 1975

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Rule 23

The clerk of the appellate court shall mail to all parties a copy of the rescript and the opinion, if one was written. The rescript of the court shall issue to the lower court twenty-eight days after the date of the rescript unless the time is shortened or enlarged by order. The timely filing of a petition for rehearing or of an application for further appellate review will stay the rescript until disposition of the petition or application unless otherwise ordered by the appellate court. If the petition or application is denied, the rescript shall issue forthwith unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted the rescript of the Appeals Court shall not issue to the lower court.

Reporter's notes

(1979) The current text is unchanged but made applicable to criminal as well as civil cases.

(1975) The amendment enlarges the period for the issuance of rescript from 14 days to 28 days. This change was required by the amendment to Appellate Rule 27.1(a), extending the period within which the party could apply for further appellate review from 10 days to 20 days. Without the amendment to Appellate Rule 23, therefore, a party properly waiting until the twentieth day to file his application for further appellate review might find that the rescript had issued six days earlier, thus cutting off his additional appellate rights. The other amendment to Appellate Rule 23 merely substitutes “petition” for “request”, to conform with the language of Appellate Rule 27.

(1973) A rescript is the equivalent at the appellate level, of judgment in the trial court, Appellate Rule 1(c); Mass.R.Civ.P. 54(a). It is the appellate court’s enunciation of its disposition of the appeal, the order directing the lower court’s further conduct of the case. Usually, the rescript will issue to the lower court within fourteen days of its utterance by the appellate court. But a timely application for rehearing, Appellate Rule 27, or for further appellate review (if appropriate), Appellate Rule 27.1, will stay the issuance of the rescript.

 

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Updates: Amended effective February 24, 1975

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