RULE 45. COMPUTING AND EXTENDING TIME
Computation Computing Time. In The following rules apply in computing any period of time specified in these rules, any local rule, or any court order: ,
(1) Day of the Event Excluded. Exclude the day of the act, or event, or default
from which the designated period of time that begins to run may not be included the period.
(2) Exclusion from Brief Periods. Exclude intermediate Saturdays, Sundays and legal holidays when the period is less than 11 days.
(3) Last Day. Include
The the last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in or day on which weather or other conditions make the clerk's office inaccessible. When the last day is excluded, which event the period runs until the end of the next day which that is not a Saturday, a Sunday, or a legal holiday or day when the clerk's office is inaccessible. When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation.
(4) Facsimile Service. Service by facsimile transmission must be completed by 5:00 p.m., receiver's time, on a weekday
, which that is not a legal holiday, or service is considered made on the following weekday which that is not a legal holiday.
(5) "Legal Holiday" Defined. As used in this rule, "legal holiday" means:
(A) a specific day set aside as a holiday under N.D.C.C. § 1-03-01; or
(B) any other day declared a public holiday by the President of the United States or the governor of this state.
Enlargement Extending Time.
(1) In General. When an act
is required or allowed to must or may be done at or within a specified time, the court on its own may extend the time, or for good cause shown may do so on a party's motion made:
at any time in its discretion (1) with or without motion or notice, order the period enlarged if a request for enlargement is made before expiration of the originally prescribed period originally prescribed or as previously extended by a previous order time expires , ; or (2) (B) upon motion made after expiration of the specified period permit the act to be done if the failure to act was the result time expires if the party failed to act because of excusable neglect ; but.
the The court may not extend the time for taking any action under N.D.R.Crim.P. Rules 29, 33, 34, 35, and 37, except to the extent and under the conditions as stated in them those rules. (c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any criminal action which is pending. (d) For Motions; Affidavits. A written motion, other than one which may be heard ex parte, and notice of the motion must be served at least 18 days before the motion may be heard, unless a different period is fixed by rule or court order. A party may apply ex parte for the court to hear a motion sooner than 18 days after service of the motion. When a motion is supported by affidavit, the affidavit must be served with the motion; and opposing affidavits may be served not less than 1 day before the hearing unless the court permits them to be served at a later time. (e) (c) Additional Time After Service by Mail or Commercial Carrier. Whenever a party has the right or is required to must or may do an act within a prescribed period after service of a notice or other paper document, and the notice or paper document is served by mail or third-party commercial carrier, three days must be added to the prescribed period. Service by facsimile transmission is not service by mail or third-party commercial carrier for purposes of this rule.
Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2001_________________.
Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule is similar
, as well, to N.D.R.Civ.P. 6, which also deals with computing time.
Rule 45 was amended, effective _____________________, 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 subdivision referring to terms of court was deleted, effective _________________. The district courts of North Dakota are in continuous session and terms of court are not a factor in computing or extending time. At the same time, and consistent with the federal rule, a subdivision dealing with motions and affidavits was transferred to Rule 47.
Subdivision (a) was amended, effective March 1, 2001, to extend the period from 7 days to 11 days when intermediate Saturdays, Sundays, and legal holidays are excluded from time computations.
Subdivision (a) was amended, effective____________________, to include a paragraph defining the term "legal holiday".
Subdivision (c) is an adaptation of N.D.R.Civ.P. 6(c). Subdivisions (d) and Subdivision (e) (c) are adaptations is an adaptation of N.D.R.Civ.P. 6 (d) and (e). Subdivision (d) (c) must be construed with N.D.R.Crim.P. 47 relating to motions generally, N.D.R.Crim.P. 49 relating to the service and filing of papers, and N.D.R.Ct. 3.2 relating to submission of motions. Subdivision (d) was amended, effective January 1, 1995, to require service of a written motion, and notice, at least 14 days before the hearing. The March 1, 2001 amendment extended the 14 days to 18 days. Subdivision (e), which provides additional time for the exercise of a right or the doing of an act when service of notice is by mail, is similar to N.D.R.Civ.P. 6(e).
(e) (c) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via commercial carrier. The proof of service must contain the date of mailing or deposit with the commercial carrier . See N.D.R.Crim.P. as required by Rule 49(e) , and N.D.R.Civ.P. 4(k) and 5(f).
Subdivisions (a) and
(e) (c) were amended, effective January 1, 1995, to clarify time computations when making service by facsimile transmission.
SOURCES: Joint Procedure Committee Minutes of _____________, pages _____; January 27-28, 2000, pages 16-17; January 29-30, 1998, page 20; April 28-29, 1994, pages 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Fed.R.Crim.P. 45.
SUPERSEDED INSOFAR AS CRIMINAL PROCESS: N.D.C.C. § 1-02-15.
CONSIDERED: N.D.C.C. §§ 1-01-33, 1-03-01(2-14).
CROSS REFERENCE: N.D.R.Crim.P. 29 (Motion for Judgment of Acquittal); N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (Arrest of Judgment); N.D.R.Crim.P. 35 (Correction or Reduction of Sentence); N.D.R.Crim.P. 37 Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 47 (Motions); N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction--Process--Service); N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers); N.D.R.Civ.P. 6 (Time); N.D.R.App.P. 26 (
Computation Computing and Extension of Extending Time).