Rules of Criminal Procedure

Rules of Criminal Procedure  Criminal Procedure Rule 46: Time

Effective Date: 07/01/1979

(Applicable to District Court and Superior Court)

Table of Contents

(a) Computation

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute or rule, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, "legal holiday" includes any day appointed as a holiday by the President or the Congress of the United States or so designated by the laws of the Commonwealth.

(b) Enlargement

When by these rules or by a notice given thereunder or by order or rule of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if a request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion made after the expiration of the specified period to permit the act to be done where the failure to act was the result of excusable neglect; or (3) permit the act to be done by stipulation of the parties; but the court may not extend the time for taking any action under rules 25 and 29 except to the extent and under the conditions stated therein.

(c) For motions, affidavits in Superior Court

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served on all interested parties not later than seven days prior to the hearing unless a different period is fixed by these rules or by order of the court. For cause shown, such an order may issue upon an ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion. Opposing affidavits shall be served not later than one day before the hearing, unless the court permits them to be served at a later time.

Reporter's notes

Rule 46 is drawn from and closely parallels Mass.R.Civ.P. 6. It is substantially the same as Rule 6 of the Federal Rules of Civil Procedure and Rule 45 of the Federal Rules of Criminal Procedure. This rule does not substantially alter prior Massachusetts practice. 

Subdivision (a)

Under the common law, Sundays were excluded from the calculation of a limited time period of seven days or less; if the period exceeded seven days, Sundays were included, even if the final day for the performance of an act fell upon a Sunday. 6 MASS.PRACTICE SERIES (Smith & Zobel) Reporter’s Notes at 155 (1974). Like Mass.R.Civ.P. 6(a), this rule excludes Saturdays and legal holidays as well as Sundays from prescribed periods of less than seven days. It provides that a limited period shall not end on a Saturday, Sunday or legal holiday, but shall end on the next succeeding business day. See G.L. c. 4, § 9 , which does not exclude Saturdays. Those legal holidays which shall be excluded are catalogued in G.L. c. 4, § 7, cl. 18 (as amended, St.1978, c. 12). 

An exception to the first sentence is found in the Case Management rule, which provides that in the computation of that rule’s time limits, an excluded period shall include both the first and last days of the excludable act or event. Mass.R.Crim.P. 36(b)(3)

Uniform Rule 753 is also phrased in terms of a “designated period of time” and is intended to “not authorize automatic exclusion of the first day or of Saturdays, Sundays, or holidays in complying with provisions which require action ‘promptly,’ ‘without unnecessary delay,’ within a ‘reasonable’ time, or the like.” Rules of Criminal Procedure (U.L.A.) Rule 753(a) Comment (1974). Similar requirements prescribed by these rules or by court order are likewise not extended by the excludable days of this rule. 

Subdivision (b)

This subdivision grants the court discretion to relieve the parties from strict compliance with time requirements in three situations: first, upon request made before the expiration of an original period or a previously-extended period; secondly, upon motion made after the expiration of a period; and thirdly, upon agreement of the parties. In all three instances the party is entitled to relief “for cause shown.” In the second situation, the failure to act must have been due to “excusable neglect.” Because a motion must state with particularity the grounds on which it is based, Mass.R.Crim.P. 13(b), a bare assertion of excusable neglect without more is insufficient. See 6 MASS.PRACTICE SERIES, supra, comments § 6.4. 

Neither the federal civil nor criminal rules expressly authorize enlargement by stipulation. While it is stated that under prior Massachusetts practice a stipulation as to enlargement ordinarily did not need court approval, 6 MASS.PRACTICE SERIES, supra, § 6.5, Mass.R.Civ.P. 6(b)(3) appears to require such approval. It is intended that under this rule the approval of the court is to be obtained. 

A motion for a required finding of not guilty must be made at the close of the Commonwealth’s or the defendant’s case, Mass.R.Crim.P. 25(a). Under subdivision (b)(2) of that rule, the motion, if denied, can be renewed within five days after the jury is discharged. In neither case can the court enlarge the time within which the motion is to be made. 

A motion to reduce or revoke a sentence is to be filed within sixty days after the imposition of the sentence and such time is not to be enlarged. Mass.R.Crim.P. 29(a)

Subdivision (c)

It should be noted that the provisions that an affidavit in support of a motion must be served with the motion and that opposing affidavits are to be served at least one day before the hearing are applicable to pretrial motions under Mass.R.Crim.P. 13.

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