Vt. R. App. P. 4

As amended through April 1, 2024

Rule 4 - Appeal as of Right - When Taken

(a)Time for Filing a Notice of Appeal.

(1) Except as provided in paragraph (2), the notice of appeal required by Rule 3 must be filed with the superior court clerk within 30 days after entry of the judgment or order appealed from.

(2) In a criminal case, the State must file an appeal within 7 business days after entry of the judgment or order, but in a criminal case resulting in a sentence of life imprisonment - where the defendant has not waived appeal - the State may file a notice of appeal within 30 days of the judgment entry date.

(3) A notice of appeal filed after the superior court announces a decision, sentence, or order - but before the entry of the judgment or order - is treated as filed on the date the decision, sentence, or order is entered.

(4) A notice of appeal filed before the timely making or disposition of any of the motions set forth in Rule 4(b) is effective when the motion is decided unless the motion is withdrawn.

(5) If a notice of appeal is mistakenly filed in the Supreme Court, the Supreme Court clerk will indicate on the notice the date when it was received and forward it to the superior court clerk. The notice is considered filed in the superior court on the date so noted.

(6) If one party timely files a notice of appeal, any other party may file a notice of appeal with the superior court within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this rule, whichever period ends later.

(b)Tolling. If a party timely files in the superior court any of the motions referenced below, the full time for appeal begins to run for all parties from the entry of an order disposing of the last remaining motion:

(1) granting or denying a V.R.C.P. 50(b) motion for judgment as a matter of law;

(2) denying a V.R.C.P. 50(c)(2) motion for a new trial;

(3) granting or denying a V.R.C.P. 52(b) motion to amend or make additional factual findings, whether or not granting the motion would alter the judgment;

(4) granting or denying a V.R.C.P. 54 motion for attorneys' fees if the superior court so orders in accordance with V.R.C.P. 58;

(5) granting or denying a V.R.C.P. 59 motion to alter or amend the judgment;

(6) denying a V.R.C.P. 59 motion for a new trial;

(7) granting or denying a motion for relief under V.R.C.P. 60 if the motion is filed no later than 28 days after the entry of judgment. If, however, the order is one denying a motion under V.R.C.P. 60(b) for relief from a default judgment, the motion need only be timely under that rule;

(8) denying a V.R.Cr.P. 29(c) motion for judgment of acquittal after verdict;

(9) denying a V.R.Cr.P. 33 motion for a new trial on any ground other than newly discovered evidence;

(10) denying a V.R.Cr.P. 33 motion for a new trial based on newly discovered evidence if the motion is made before or within 30 days after entry of judgment;

(11) denying a V.R.Cr.P. 34 motion in arrest of judgment; and

(12) granting or denying a V.R.Cr.P. 35(c) motion to modify a sentence when filed by a prosecuting attorney.

(c)Reopening the Time to File an Appeal Based on Lack of Notice. In a civil action, the superior court may, upon motion, reopen the time to file an appeal for 14 days after the date when its order to reopen is entered if:

(1) the reopening motion is filed within 90 days of entry of the judgment or order or within 14 days of receipt of notice of the judgment or order, whichever is earlier; and

(2) the court finds that a party entitled to notice of the entry of the judgment or order did not receive that notice from the clerk or any party within 21 days of its entry; and

(3) the court finds that no party would be prejudiced.

(d)Motion for Extension of Time To File Notice of Appeal.

(1) The superior court may extend the time for filing the notice of appeal if:

(A) the relief is requested by motion filed no later than 30 days after the expiration of the time prescribed by Rule 4(a); and

(B) the party shows excusable neglect or good cause.

(2) A motion filed before the expiration of the time prescribed in Rule 4(a) may be filed ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with Rule 25(b).

(3) No extension under this subdivision may exceed 30 days after the time originally prescribed by Rule 4(a) or 14 days after the date the order granting the motion is entered, whichever is later.

(e)Entry Defined.

(1) In a civil action, a judgment or order is entered for purposes of Rule 4(a) when it is entered in the civil docket under V.R.C.P. 79(a) and, if V.R.C.P. 58(a) requires the judgment to be set forth on a separate document, when the earliest of the following occurs:

(A) the judgment or order is set forth on a separate document; or

(B) 150 days have run from entry of the judgment under V.R.C.P. 79(a).

(2) The failure to set forth a judgment or order on a separate document when required by V.R.C.P. 58(a) does not affect the validity of an appeal from that judgment or order.

(3) In a criminal case, a judgment or order is entered for the purposes of Rule 4(a) when it is entered in the criminal docket.

(f)Appeal by an Inmate Confined in an Institution.

(1) A notice of appeal filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement accompanying the notice of appeal stating the date the notice of appeal was deposited in the institution's internal mailing system. The notarized statement establishes a presumption that the notice of appeal was deposited in the institution's internal mailing system on the date shown in the statement. The presumption may be rebutted by documentary or other evidence.

(2) If an inmate files the first notice of appeal under this Rule 4(f), the 14-day period provided in Rule 4(a)(6) for another party to file a notice of appeal runs from the date when the superior court dockets the first notice.

(3) Nothing in this rule precludes other evidence of timely filing such as a postmark or an official date stamp showing the filing date of the document.

Vt. R. App. P. 4

Amended March 2, 1973, eff. 10/1/1973; Dec. 18, 1973, eff. 10/1/1973; Supreme Court order 4/9/1974; June 30, 1982, eff. 7/1/1982; Nov. 30, 1982, eff. 2/1/1983; Jan. 9, 1985, eff. 3/15/1985; Aug. 7, 1990, eff. 10/15/1990; Jan. 20, 1992, eff. 3/2/1992; 2/22/1996, eff. 7/1/1996; Oct. 11, 2006, eff. 12/11/2006; June 11, 2013, eff. 9/3/2013; Jan. 9, 2017, eff. 1/9/2017; amended Sept. 20, 2017, eff. 1/1/2018; amended July 13, 2021, eff. 8/17/2021.

Reporter's Notes-2021 Amendment

Rule 4(a)(6) is amended to specify that subsequent notices of appeal must be filed in the superior court.

Reporter's Notes-2018 Amendment

Rule 4(a)(2) is amended to clarify that the State must file an appeal within 7 business days. This conforms to the concurrent amendment to 13 V.S.A. § 7403(e).

Rule 4(b)(7) is amended for internal consistency with V.R.C.P. 50 and 52.

Rules 4(c)(1) and 4(d)(3) are amended to conform their 7-day and 10-day time periods to the simultaneous amendment of V.R.C.P. 6(a).

3. That Rule 5(b) of the Vermont Rules of Appellate Procedure be amended to read as follows (new matter underlined; deleted matter struck through):

Reporter's Notes-2017 Amendment

Rule 4(f) is adopted in response to the Supreme Court's request in In re Bruyette, 2016 VT 3, § 8, _ Vt. _, 136 A.3d 575 (per curiam), that the Civil Rules Committee "propose appropriate amendments ... to facilitate application of' the prison mailbox rule in Vermont. The rule is similar, but not identical, to F.R.A.P. 4(c)(1) as most recently amended effective December 1,2016. The Vermont rule provides that deposit of a notice of appeal in the internal prison mailing system can constitute timely filing and requires use of a prison "legal mail" system if available. The rule also explicitly creates a rebuttable presumption that the filing is timely if accompanied by a notarized statement showing deposit in the institution's internal mailing system on or before the last day for filing. Paragraph (3) follows the federal rule in allowing evidence of timely filing other than the notarized statement. Unlike the federal rule, the rule does not require a statement that postage has been or "is being" prepaid, nor does it give the Court discretion to allow later filing of the notarized statement.