TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 29, N.D.R.Crim.P., Motion for a Judgment of Acquittal; Rule 33, N.D.R.Crim.P., New Trial; Rule 34, N.D.R.Crim.P., Arresting Judgment
Fed.R.Crim.P. 29, 33 and 34 were modified, effective Dec. 1, 2005, to remove the requirement that the court act within seven days to extend the time for filing a motion. Federal courts considered the court action requirement to be jurisdictional: a defendant who had timely sought an extension could be denied any relief at all under the rule if the court failed to timely act on the extension request.
Now, the general Fed.R.Crim.P. 45 extension requirement applies to these rules: if the defendant wants an extension, the request must be timely filed, but the court doesn't need to act on the request within seven days. In addition, Fed.R.Crim.P. 45's excusable neglect provision now applies to motions under Fed.R.Crim.P. 29, 33 and 34, meaning that untimely motions can be salvaged under appropriate circumstances.
Seven-day deadlines will be replaced by 10-day deadlines in N.D.R.Crim.P. 29, 33 and 34, effective March 1, 2006, under amendments proposed by the Committee and approved by the North Dakota Supreme Court. The requirement for the trial court to act on extension motions within the 10-day windows in these rules, however, still exists.
The North Dakota Supreme Court has held that the time limits in N.D.R.Crim.P. 33 and 34 are jurisdictional, but it apparently has not confronted this issue on N.D.R.Crim.P. 29. The Court has not ruled specifically on whether the court action deadline is jurisdictional. Proposed amendments to N.D.R.Crim.P. 29, 33 and 34 consistent with the federal amendments are attached.