RULE 37. APPEAL AS OF RIGHT TO DISTRICT
COURT; HOW TAKEN
* * * * *
(d) Service of the Notice of Appeal. The clerk of the trial court shall serve notice of the filing of the notice of appeal
either by personal serviceon the defendant. or by mail addressed to him, and by mailing a copy thereofIn addition, the clerk shall mail or send by third-party commercial carrier a copy of the notice of the filing of the notice of appeal to the prosecutor and to the defendant's counsel, if any, of record. The clerk shall also shalldoes not affect the validity of the appeal. Service shall beis sufficient notwithstanding the death of a party or the party's hiscounsel. The clerk shall note in the docket the names of the parties to whom copies are sent he mails copies, with the date of mailingand the date they were sent.
* * * * *
Rule 37 was amended, effective September 1, 1983; March 1, 1986; January 1, 1995; March 1, 1999.
Rule 37 has no counterpart in the Federal Rules of Criminal Procedure. The requirement for a rule of procedure for criminal appeals is necessary because the North Dakota Rules of Appellate Procedure, promulgated in 1973, are limited in scope to appeals to the supreme court while the scope of criminal rules includes the municipal courts. The Rule is intended to parallel as closely as possible the procedure of the Appellate Rules.
Subdivision (a) parallels NDRAppP 3(a). Under the provisions of subdivision (a) nothing more is required for the perfection of an appeal than the filing of a notice of appeal with the clerk of the court that rendered the judgment. This subdivision acknowledges that the right to appeal in a criminal case is limited by statute. See, e.g., State v. Gohl, 477 N.W.2d 205, 207 (N.D. 1991).
Under existing law (NDCC § 40-18-19) the defendant may take an appeal from a judgment of conviction in municipal court. The State may take an appeal from any trial court in specific instances which are provided under Section 29-28-07, NDCC, provided the appeal does not infringe upon the defendant's constitutional right prohibiting double jeopardy.
Subdivision (b) parallels NDRAppP 4(b).
Subdivision (b) governs the time for appeal with respect to all appeals that may be taken within the scope of these Rules 10--days for the defendant and 30 days for the prosecution. This requirement is intended to avoid prolongation of the process and to keep delays at a minimum. The requirement that the notice of appeal be filed [with the clerk of the trial court] within 10 days of the entry of judgment or order appealed from is "mandatory and jurisdictional". State v. Guthmiller, 497 N.W.2d 407 (N.D. 1993). The "mandatory and jurisdictional" requirement is eased by the provision in subdivision (b) which permits the trial court to extend the time for appeal upon a showing of excusable neglect. The provision in Rule 32 which requires
thatthe defendant to be advised of his right to appeal and the right of a person who is unable to pay the cost of appeal to have it provided at public expense is clearly a necessary part of a valid sentence and until it is given, the 10-day period for taking an appeal cannot begin to run because there is no valid sentence in existence. See State v. Carmody, 243 N.W.2d 348 (N.D. 1976). The provision which precludes the extension of time for appeal pending motion for new trial based on newly discovered evidence is necessary because, under Rule 33, that motion may be made within two years. The provision that "A notice of appeal filed after the announcement of the verdict, decision, sentence or order but before entry of the judgment or order shallmust be treated as filed after the entry and on the day thereof," incorporates the holding of Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953).
Subdivision (c) is adapted from the language of Rule 3(c), NDRAppP, which has its origins in former Rule 37(a), FRCrimP. Three requirements for the notice of appeal are set out in this subdivision: it must (1) specify the parties taking the appeal, (2) designate the verdict, judgment or order or part thereof appealed from, and (3) name the court to which the appeal is taken. Under the first requirement, it is important that the notice specify by name the appellant or appellants. Failure of the notice to correctly designate the court to which the appeal is taken does not vitiate it. Misnomer is immaterial, at least if it is obvious to which appellate court the appeal must go. [Cutting v. Bullerdick, 178 F.2d 774 (9th Cir. 1949).] The requirement that the notice of appeal "designate the judgment or part thereof appealed from" was designed to simplify the taking of an appeal by requiring nothing more for its perfection than an identification of the judgment by the date of its entry.
Subdivision (d) is adapted from Rule 3(d), NDRAppP, and provides for service of the notice of appeal. Under this subdivision, the appellant is not obligated to serve the notice of appeal on other parties to the action. It is the duty of the clerk of the trial court (or magistrate where there is no clerk) to: (1) serve notice of the filing of notice of appeal
either by personal serviceon the defendant or by mail addressed to him,and by mailingto send a copy thereofto the prosecutor and to the defendant's counsel, if any [The "if any, of record" provision recognizes that a defendant need not be represented by counsel, but if he is so represented, it must be noted on the record.]; (2)
Subdivision (d) was amended, effective March 1, 1999, to allow the clerk to send the notice of the filing of the notice of appeal via a commercial carrier as an alternative to mail.
Subdivision (e) establishes a five-day maximum time limit within which the clerk, or judge where there is no clerk, must forward the file with those documents listed in the Rule to the clerk of court to which the appeal is taken.
Subdivision (f) provides the designation of parties to the appeal. It makes explicit that the title of the action shall not be changed "in consequence" of the appeal. The designation of the party who contends against the appeal as an appellee rather than respondent is intended to avoid confusion, especially in special proceedings.
Subdivision (g) defines the effect of appeal. This subdivision follows Section 40-18-19, NDCC in providing for trial anew when an appeal is taken to the district court from the municipal court.
This subdivision, along with the title, was amended in 1983, effective September 1, 1983, to delete obsolete references to the county court with increased jurisdiction. Subdivision (g), along with the title, was amended, effective January 1, 1995, to delete obsolete references to county court.
Subdivision (h) is adapted from Rule 39, FRCrimP (abrogated in 1968). Provision for supervision of appeal is included in this Rule to cover appeals to the District Courts. This subdivision provides
thatthe appellee may obtain relief from the appeal by one of the methods stated. The provision contemplates thatthe parties shall first apply to the trial court for any relief regarding the appeal; however, once the appeal passes to the appellate court, the trial court has no power to modify its judgment or dismiss the appeal.
The term "appellate court" as used in this Rule refers to the district court only.
It should be noted
thatalthough the rule does not always explicitly say so, it is the intent of this rule that the judge will perform the duties of the clerk where no clerk is appointed.
SOURCES: Minutes of the Rules Committee Meetings of January 29-30, 1998, page 20; April 28-29, 1994, pages 6-7; January 27-28, 1994, page 10; September 23-24, 1993, page 10; November 29, 1984, page 20; February 17-18, 1983, pages 14-20; February 20-23, 1973, pages 5-8; December 11-15, 1972, pages 5-16; July 10-11, 1969, pages 4-6; May 15-16, 1969, pages 2-11; February 20-21, 1969, pages 15-17.
SEE ALSO: Art. VI, § 8, North Dakota Constitution [formerly § 103].
SUPERSEDED: 29-28-04, 29-28-08, 29-28-09, 29-28-11, 33-12-35, 33-12-40, NDCC.
CONSIDERED: 27-07-02, 27-07.1-18, 27-08-21, 28-27-06, 29-23-11, 29-28-02, 29-28-06, 29-28-07, 29-28-20, 29-28-21, 33-12-34, 33-12-41, 40-18-19, NDCC.
CROSS REFERENCES: Rule 33.-NDRCrimP, New Trial; Rule 3.-NDRAppP, Appeals from the District Court; Rule 4.-NDRAppP, Appeal When Taken.
[Note: Rules 3 and 4 pertain to appeals to the Supreme Court.]