Miss. R. Crim. P. 25.2

As amended through March 21, 2024

Rule 25.2 - Motion to Vacate Judgment

(a) Power of the Court. The court, on motion of a defendant or on its own motion, may vacate judgment and dismiss the case without prejudice if the indictment or charging affidavit did not charge an offense, or if the court was without jurisdiction.

(b) Timeliness. A motion to vacate judgment shall be filed within ten (10) days after entry of judgment. The court may act on its own motion in vacating judgment only during the period in which a motion to vacate judgment would be timely.

Adopted eff. 7/1/2017.

Comment

Rule 25.2 essentially continues practice under former Rule 10.05 of the Uniform Rules of Circuit and County Court. See also Jefferson v. State, 556 So. 2d 1016 (Miss. 1989).

The deadline established by section (b) tracks the deadline for a motion for a new trial under Rule 25.1. However, a motion to vacate judgment (unlike a motion for new trial) does not toll the time for filing a notice of appeal under Mississippi Rule of Appellate Procedure 4(e). Therefore, when a motion under Rule 25.2 has been filed but not decided at the time an appeal has been perfected, both trial and appellate courts will have jurisdiction of the case; if the trial court then grants the Rule 25.2 motion, the appeal may be mooted. See Gardner v. State, 547 So. 2d 806 (Miss. 1989); Wilson v. State, 461 So. 2d 728 (Miss. 1984).