ARREST OF ARRESTING
JUDGMENT (a) In General. The On the defendant's motion or on
its own, the court on motion of a
defendant shall must arrest judgment if:
(1) the indictment, information, or complaint does not charge an offense; or
if the court was without does not
have jurisdiction of the charged offense charged.
(b) Time to File. The
motion in defendant must move to
arrest of judgment shall be made
within seven 10 days after verdict or finding of guilty, or after
a plea of guilty, or within such
a further time as the court may fix set during
the seven 10-day period.
Rule 34 was amended, effective March 1, 2006.
Rule 34 is an adaption of Fed.R.Crim.P. 34
, and differs only to
the extent that it includes
the "complaint " as a charging document. The Rule
follows existing law (N.D.C.C. ch. 29-25
(Motion in Arrest of Judgment.)) with the exception that it rule recognizes
only two grounds
for a motion in arrest of judgment: (1) that the indictment, information, or complaint does
not charge an offense; and (2) that the court is without jurisdiction of the offense charged.
These grounds are among the nonwaivable defenses referred to in
12(b)(2). The distinction is that under this Rule the motion is made after determination
guilt, while under N.D.R.Crim.P. 12(b)(2) the motion can be made at any time during the
pendency of the proceeding.
An attack on the sufficiency of the evidence should be by motion for acquittal under
N.D.R.Crim.P. Rule 29; a claim of errors at the trial should be made
by motion for a new
trial under N.D.R.Crim.P. Rule 33; and defects of form in the
indictment, information, or
complaint must be raised before trial by motion under N.D.R.Crim.P.
The words "on motion of a defendant" are added to make clear that the court may
pursuant to a timely motion by the defendant. (See 8A Moore's Federal Practice, p. 34-1
(Cipes, 2d Ed. 1972) and 18 U.S.C.A., Federal Rules of Criminal Procedure; Rule 33, 1966
A motion for arrest of judgment should ordinarily be made in writing
47 and Explanatory Note) and served upon the parties and filed (see
N.D.R.Crim.P. 49 and
Explanatory Note). The grounds for the motion may be are
stated in the language of the Rule
Subdivision (b) was amended, effective March 1, 2006, to increase to the time to file a motion to arrest judgment from seven to ten days.
Rule 34 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, page 31;
24-26, 1973, page 13; December 11-15, 1972, pages 19-20; September 26-27, 1968, pages
18 U.S.C.A., Fed.R.Crim.P. 34 , page 113; Wright, Federal
Practice and Procedure:
Criminal, §§ 571-574 (1969); 8A Moore's Federal Practice, Chapter 34 (Cipes, 2d
Ed. 1971); Barron, Federal Practice and Procedure: Criminal, § § 2291-2293
SUPERSEDED: N.D.C.C. §§ 29-25-01, 29-25-02, 29-25-03, 29-25-04.
CONSIDERED: N.D.C.C. §§ 29-25-05, 29-25-06.
CROSS REFERENCE: N.D.R.Crim.P. 12 (Pleadings and Pretrial Motions
Defenses and Objections); N.D.R.Crim.P. 29 (Motion for a Judgment of Acquittal);
N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 47 (Motions); N.D.R.Crim.P. 49 (Serving and