¶1 concurring in the judgment only. I concur in the judgment only. I wish to make some comments, however, with respect to the seventh assignment of error.
¶2 The appellant filed two motions for a new trial. The first motion was based on newly discovered evidence and was timely filed on January 12, 1976, within 120 days after the verdict was rendered as required by Criminal Rule 33 (B). The second motion, also based on newly discovered *55 ■evidence, was filed on January 24, 1977, nearly 14 months after the trial court’s verdict of November 28,1975.
¶3 ■ With respect to the second motion, clarification of the procedural requirements for a motion for new trial on account of newly discovered evidence made after 120 ■days following the verdict is warranted.
¶4 In general, motions for a new trial based on new evidence must be filed within 120 days after the verdict or decision of the trial court. Crim. R. 33(B). Criminal Rule 33(B) permits such motions to be filed after the 120 day time period but establishes as a prerequisite for such late filing a court order finding “by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely.” Although the rule does not precisely define the function which the court order serves, it effectively gives the mo-vant an extension of time or judicial leave to file his motion for a new trial.
¶5 To obtain the court order containing the finding of unavoidable prevention, the defendant must apply for such an order from the court by motion. Criminal Rule 47 and Criminal Rule 33 establish that it is the defendant’s burden to show by clear and convincing proof that he was unavoidably prevented from discovering the new evidence within the 120-day time period. The rule is silent as to the evidentiary material which the defendant must submit to meet his burden of proof but clearly more than mere allegation of unavoidable prevention is required.
¶6 Once the court has made the required finding by its order, Criminal Rule 33(B) requires that the defendant’s motion for a new trial based on newly discovered evidence be filed within seven days after the order. When filed no later than seven days after the order, the motion for a new trial is properly before the trial court and the provisions of Rule 33 apply to this motion as they would for any other motion for a new trial made on the ground of newly discovered evidence.
¶7 It should be noted that the defendant may choose to file his new trial motion together with his motion applying for the court order finding unavoidable prevention. *56 In any event, however, a motion for new trial on account of newly discovered evidence made after the 120-day time period is not properly before the trial court until the court has entered the requisite order.
¶8 The record in this case indicates that on October 27, 1976, eleven months after the jury verdict rendered against him, the appellant filed a motion in the trial court entitled “Application for permission to file affidavits in support of a motion for a trial.” The application sets forth the circumstances attendant to the appellant’s discovery of an available witness in his behalf and certain other evidence. No affidavits or other material were attached to the motion.
¶9 The motion did not request a court order finding that he was unavoidably prevented from timely discovering his new evidence and the appellant did not subsequently apply for such a court order. On January 24, 1977, the appellant filed his second motion for a new trial with certain affidavits attached. By its entry of January 25, 1977, the court granted the motion to file affidavits and denied the motion for a new trial.
¶10 The appellant did not expressly request nor receive a court order finding unavoidable prevention and the appellant’s motion for permission to file affidavits cannot be deemed a substitute for such a request because it did' not include a request for and did not result in the requisite court order.
¶11 Therefore, the appellant’s second motion for a new trial was not properly before the trial court and could not be considered on its merits. This being so, this court cannot in this appeal consider the merits of the appellant’s second motion for a new trial.
¶12 Criminal Rule 33 does not place a time restriction upon when motions applying for a court order finding unavoidable prevention may be made. Therefore, the appellant is not precluded from making such application by motion to the trial court at this time, obtaining the required order and filing his second motion for a new trial anew.