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ARIZMENDI, ROSA ELENA

PD-0623-16 09/14/2016

"Was Appellee entitled to a new trial, as both lower courts held, when she waived the right to seek a new trial and presented no valid legal claim supported by new evidence not previously available or discoverable with due diligence?"

Pursuant to a plea agreement, Arizmendi waived her right to file a motion for new trial and pled guilty. Despite the waiver, the trial court granted her motion for new trial, which asserted that the subsequent favorable ruling on her co-defendant's suppression motion and the trooper's testimony at that hearing were new evidence. The State appealed, and the court of appeals affirmed. It concluded that the trial court did not err in declining to enforce the waiver and that the evidence presented was new because it was non-existent until her co-defendant's suppression hearing.

The State argues that there is nothing in the record indicating that parties and trial court believed that Arizmendi retained the right to move for a new trial when entering her plea. That the trial court entertained her motion is of no consequence. There is no procedural rule like Appellate Rule 25.2(a)(2)'s appeal authorization that would allow the trial to grant permission for a new trial notwithstanding a waiver. Further, the trial court's ruling on her co-defendant's suppression motion and trooper's testimony do not constitute new evidence. The facts testified to by the trooper were available before her plea, and the suppression ruling does not fit within the meaning of "new" evidence. Lastly, Arizmendi has never challenged the voluntariness of her plea.

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