Future Effective Date
Rules of Appellate Procedure

Effective March 1, 2019

Rules of Appellate Procedure Appellate Procedure Rule 28: Procedure in lower court following rescript

Effective Date: 03/01/2019
Updates: Amended May 15, 1979, effective July 1, 1979 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(a) Civil cases.

In a civil case, when the rescript from the appellate court sets forth the text of the judgment to be entered, the clerk of the lower court shall, upon receipt of the rescript, prepare, sign, and enter the judgment which has been ordered. If the rescript orders settlement of the form of the judgment in the lower court, the clerk of the lower court shall sign and enter the judgment after settlement. Notation of a judgment in the lower court docket constitutes entry of the judgment.

(b) Criminal cases.

If the rescript has the effect of entitling the defendant to immediate release from custody, counsel for the defendant, the Commonwealth, and the clerk of the lower court shall immediately take any action necessary to ensure that the defendant is released from custody forthwith. In all other criminal cases, unless the rescript affirms the lower court, the clerk of the lower court shall, upon receipt of the rescript, schedule a hearing forthwith to be held no later than 30 days from the clerk’s entry of the rescript.

Reporter’s notes

(2019)

The title of Rule 28 was revised to “Procedure in Lower Court Following Rescript,” to clarify the content and applicability of the rule. The parenthetical indicating that Rule 28 applies only to civil cases was deleted because the rule, as amended, also applies to criminal cases.

Rule 28 was separated into two subdivisions, one concerning civil cases and the other concerning criminal cases. The prior language, found in Rule 28(a), encompasses the procedure in civil cases. Rule 28(b) was added to govern the procedure in criminal cases. The language requires action when the rescript reverses or remands a case to the lower court, to ensure a timely hearing is scheduled for further proceedings.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(1979)

Rule 28 is limited in applicability to civil cases. The existing practice in criminal cases, to be continued under the Rules, is to enter the rescript on the docket rather than to prepare a separate “judgment” as is done in civil cases.

(1973)

Appellate Rule 28 prescribes the duties of the lower court clerk upon receipt of the appellate court rescript. It should always be remembered that it is the judgment of the lower court, not the rescript (however much the terms of the rescript may shape the final judgment), which regulates the nature and quantum of any relief obtained. Until that judgment has been made to conform to the rescript, the litigation is not terminated. The rescript may dictate the text of the judgment or it may enjoin the parties to “settle,” i.e., jointly work out a draft of a judgment to be approved by the appellate court before transmission to the lower court clerk for entry.

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Updates: Amended May 15, 1979, effective July 1, 1979 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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