M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 4, N.D.R.App.P.; Extension of Time for Appeal
Justice Sandstrom has asked for Committee review of the extension of time for appeal provided in Rule 4(a), N.D.R.App.P. Rule 4(a) provides a thirty day extension for appeal for excusable neglect "from the expiration of the time otherwise prescribed by this subdivision." Under Rule 4(a), "the time otherwise prescribed" for filing the notice of appeal is "within sixty days of service of notice of entry of the judgment or order appealed from." Thus, Rule 4(a) provides the thirty-day extension for excusable neglect is to be added to the sixty-day period under Rule 4(a), rather than the time for appeal otherwise provided by a different rule or statute. See McMorrow v. State, 516 N.W.2d 282 (N.D. 1994).
In McMorrow, the court said, in civil cases, including post-conviction relief proceedings, the trial court may extend the time for filing a notice of appeal for a period not to exceed ninety days from the date of service of notice of entry of judgment. The court said the thirty day extension for excusable neglect is to be added to the sixty-day period under Rule 4(a), even though the statutory time for appeal in a post-conviction relief proceeding is ten days. 516 N.W.2d at 283 (N.D. 1994).
Should Rule 4 be amended to provide for an extension of thirty days from the particular statute or rule providing the time for appeal, rather than allowing the time for appeal to be extended for a total of ninety days?