An order that grants a new trial is interlocutory in nature and not regarded as an appealable final order.[i] Hence, an order granting a new trial is not subject to review, either by a direct appeal or by an appeal from a final judgment.[ii] Generally, a direct appeal cannot be granted from an order that denies or grants a motion for a new trial as it lacks finality.
An order is reviewable on appeal if it grants a motion for a new trial delivered within the plenary power of the trial court.[iii] However, when an order is challenged beyond the jurisdiction of a trial court, it can be treated as final and appealable. It was observed in Radwan v. Carteret Bd. of Educ., 62 Fed. Appx. 34, 37 (3d Cir. N.J. 2003), that an order granting a new trial is itself reviewable as a final judgment when the challenge goes to the judicial power of the trial court to take that action.
An order is reviewable following entry of a final order at the conclusion of the ensuing retrial. If a district court erred in granting a new trial at that point, then an appellate court can reverse the order granting a new trial and reinstate the original verdict.[iv] It is assumed that a party who requested and received a new trial has waived his/her right for immediate appeal.
Similarly, an order to vacate or set aside a sentence, granting future resentencing, or contemplating the court’s correction of the sentence in the future by a federal district court is not immediately appealable. However, after the new trial and entry of a final judgment, the appellate court can review the decision to grant a new trial and even reinstate the original verdict sometimes under federal law.[v]
[i] Radwan v. Carteret Bd. of Educ., 62 Fed. Appx. 34, 37 (3d Cir. N.J. 2003)
[ii] Atchison, T. & S. F. R. Co. v. Brown, 750 S.W.2d 332 (Tex. App. Eastland 1988)
[iv] Radwan v. Carteret Bd. of Educ., 62 Fed. Appx. 34, 37 (3d Cir. N.J. 2003)
[v] Wilhite v. Andis, 1997 U.S. App. LEXIS 2323 (7th Cir. Ind. Feb. 6, 1997)