M E M O
TO: Joint Procedure Committee
FROM: Jim Harris
RE: N.D.R.App.P. 4; N.D.R.Crim.P. 37; SB 2077
At the September 2000 meeting, the Committee directed staff to revise the explanatory note for N.D.R.App.P. 4 to explain that, to ensure a timely notice of appeal, a party should file a notice of appeal when filing a motion for extension of time to appeal in the trial court. See Minutes page 12.
The Committee also discussed the time for appeal in a criminal case and ultimately decided to postpone discussion of that issue until the next meeting. See Minutes pages 12-13. The Committee also noted N.D.R.Crim.P. 37 and N.D.C.C. § 29-32.1-14 include separate time periods for appeal and directed staff to prepare proposals regrading those time periods.
During the 2001 legislative session, the Legislature amended N.D.C.C. § 29-32.1-14, effective August 1, 2001, to provide that a final judgment in a post-conviction proceeding "may be reviewed by the Supreme Court of this state upon appeal as provided by rule of the Supreme Court." See meeting materials page 39. The Court has referred this legislation to the Committee for a recommendation as soon as possible. See meeting materials page 40. In conjunction with this reference, the Court asked the Committee to consider how much time to allow for appeals by the defendant and the state; whether the time to appeal should run from notice of entry of judgment or entry of judgment; an excusable neglect provision; and whether post-conviction proceedings should remain civil in nature.
Included in the meeting materials are proposed amendments to the version of N.D.R.App.P. 4 which was approved at the last meeting and which is part of the Committee's ongoing study of the 1998 amendments to the Federal Rules of Appellate Procedure. See meeting materials pages 41-48. This proposal includes the revision to the explanatory note, see lines 151-52, and language regarding post-conviction proceedings. See lines 123-28. As you can see, the proposal allows appeals by both the state and the defendant within 60 days of entry of judgment and a 30 day period for excusable neglect. The language is similar for the current N.D.R.App.P. 4(c) for appeals in contempt cases.
In conjunction with that version of N.D.R.App.P. 4, the meeting materials also include a proposed amendment to N.D.R.Crim.P. 37 for appeals from municipal courts to district courts. See meeting materials pages 49-57. Current N.D.R.Crim.P. 37 is largely a combination of N.D.R.App.P. 3 and N.D.R.App.P. 4, and proposed N.D.R.Crim.P. 37 incorporates changes to those appellate rules which are part of the appellate rules package that will ultimately be submitted to the Court.
Because the Committee's work on the appellate rules is intended to go to the Court as a package and the entire package will not be finished in time to accommodate the August 1, 2001 effective date for SB 2077, I have also prepared a draft of the current version of N.D.R.App.P. 4 with the same proposed language for appeals from post-conviction proceedings. See meeting materials pages 58-62, lines 53-58 and 80-81.