RULE 38. STAY OF EXECUTION AND RELIEF PENDING REVIEW
Stay of execution.
(1) Death. A sentence of death shall be stayed pending the determination
of any appeal or
other review by an appropriate court of this state.
(2) Imprisonment. A sentence of imprisonment is stayed if an
appeal is taken and the
defendant If the defendant is released pending disposition of
the appeal pursuant to under
N.D.R.App.P. 9 (b), the court must stay a sentence of imprisonment.
(3) (b) Fine. A sentence If the defendant
appeals, the court may stay a sentence to pay a
fine, fee or a fine and costs , if an appeal is taken, may be
stayed by the trial court upon such.
The court may stay the sentence on any terms as the court considers proper.
The trial court
considered appropriate and may require the defendant pending appeal
the whole all or any part of
the find fine, fee or and costs with the clerk ,
to give post a bond for to
pay the payment thereof, fine, fee or costs; or
to submit to an examination of
concerning the defendant's assets , and it may make
, if appropriate, order the defendant to restrain the
defendant refrain from dissipating assets.
(4) (c) Probation. An order placing the defendant
on If the defendant appeals, the court may
stay a sentence of probation may be stayed if an appeal is taken. If
the order is stayed the The
court shall fix must set the terms of the any
(b) Reserved for future use.
(c) Reserved for future use.
(d) Restitution and Notice to Victims.
(1) In General. If the defendant appeals, the court may stay, on any terms considered appropriate, any sentence providing for restitution or notice to victims.
(2) Ensuring Compliance. The court may issue any order reasonably necessary to ensure compliance with a restitution order or a notice order after disposition of an appeal, including:
(A) a restraining order;
(B) an injunction;
(C) an order requiring the defendant to deposit all or part of any monetary restitution into the district court's registry; or
(D) an order requiring the defendant to post a bond.
Rule 38 was amended, effective March 1, 1990; March 1, 2006.
Rule 38 is an adaptation of Fed.R.Crim.P. 38. The
rule provides the court with the
power to stay execution of sentence and permits the defendant to avoid imposition of
sentence pending determination of the defendant's appeal. (See Corey v. United States,
U.S. 169, 172, 84 S. Ct. 298, 301, 11 L. Ed. 2d 229 (1963).) The Rule
rule does not impinge
on the authority of executive reprieve as provided in Article V, Section
76 7 of the State
Subdivision (a)(1) is similar to its Federal counterpart. It continues existing law in
providing that a sentence of death is automatically stayed by the taking of an appeal.
(a)(2) (a), (a)(3) (b), and
(a)(4) (c) are substantially the same as in the Federal
Rule federal rule. Provisions for change of place of confinement as set out in
Rule federal rule was not included in this Rule rule
since the geographical problems are not
Rule 38 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.
(a)(3) (b) was amended, effective March 1, 1990.
The amendment is technical
in nature and no substantive change is intended.
Subdivision (d) was added, effective March 1, 2006, to provide for stay of a restitution or notice order. It was derived from Fed.R.Crim.P. 38(e).
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, page 33;
20, 1989, page 4; December 3, 1987, page 15; March 16-17, 1978, pages
Procedure Committee Minutes of December 11-15, 1972, pages 25-29; July 10-11,
page 7; May 15-16, 1969, pages 15-20; Fed.R.Crim.P. 38 ; Wright, Federal Practice and
Procedure: Criminal, § § 631-635; 8A Moore's Federal Practice, Chapter 38 (Cipes,
2d Ed. 1971); Barron, Federal Practice and Procedure: Criminal, §§ 2351-2355
(1951); A.B.A. Standards for Criminal Justice, Standards Relating to Post-Conviction
Remedies, § 4.3 (Approved Draft, 1968).
SUPERSEDED: N.D.C.C. §§ 29-28-09, 29-28-13, 29-28-14, 29-28-15, 29-28-16, 29-28-17.
CONSIDERED: N.D.C.C. §§ 12-50-06, 29-28-12.
CROSS REFERENCE: N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 46 (Release from Custody); N.D.R.App.P. 8 (Stay or Injunction Pending Appeal); N.D.R.App.P. 9 (Release in Criminal Cases).