Time

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 .