RULE 49. SERVICE AND FILING OF PAPERS
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(c) Notice of Orders. Immediately upon
theentry of an order made on a written motion subsequent toafter arraignment, the clerk shall mail, or send by third-party commercial carrier, toor otherwise serve on each party affected therebya notice of the entry thereofand note the service in the docket. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 37(b) of these Rules and Rule 4(b) of the N.D.R.App.P.
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Rule 49 was amended, effective March 1, 1990; March 1, 1999.
Rule 49 is an adaptation of Rule 49 of the FRCrimP.
The procedure for the service and filing of papers under Rule 49 is similar to that under Rule 5, NDRCivP, with such modifications as are necessary to conform to criminal cases.
Subdivision (a) is similar to Rule 5(a) of the NDRCivP with such adaptations as are necessary for criminal cases. [See Notes of Advisory Committee, 18 U.S.C.A., Rule 49, Federal Rules of Criminal Procedure.]
The first sentence of Subdivision (b) is substantially the same as the first sentence of Rule 5(b) of the NDRCivP. The second sentence incorporates the following provisions of 5(b), NDRCivP.
"Service upon the attorney or upon a party must be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney's or party's last known address or, if no address is known, upon order of the court by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or the party; or, leaving it at the attorney's or party's office with a clerk or other individual in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the party to be served has no office, leaving it at the party's dwelling house or usual place of abode with some individual of suitable age and discretion then residing therein. Service by mail is complete upon mailing."
When service is
madeby mail or third-party commercial carrier, three days are added to any period of time within which a party is required to do anact [Rule 45(e)]. See Rule 45(e), NDRCrimP.
Subdivision (b) was amended, effective March 1, 1990. The amendment tracks the 1987 Federal amendment which is technical in nature and no substantive change is intended.
Subdivision (c) is substantially in the language of its Federal counterpart with minor style changes in the first sentence to add flexibility in serving notice and to make it clear
thatonly a party affected by the order needs to be served with suchthe notice. The language of Subdivision (c) of the Federal Rule is an adaptation for criminal proceedings of Rule 77(d), FRCivP. The second sentence of Subdivision (c) provides thatlack of notice of entry does not affect the time to appeal, except insofar as it may give rise to a claim of "excusable neglect" under Rule 37(b) of these Rules and Rule 4(b), NDRAppP. [See 8A Moore's, supra, at page 49-6, citing the Advisory Committee Note to Federal Rule 49.]
Subdivision (c) was amended, effective March 1, 1999, to allow the clerk to send notice by commercial carrier as an alternative to the Postal Service.
Subdivision (d) incorporates by reference the provisions of Rule 5(d) and (e), NDRCivP.
Subdivision (e) has no Federal counterpart and was adapted from the Alaska Rules of Criminal Procedure and regulates the manner for proving
thatservice has been made.
SOURCES: Minutes of Rules Committee Meetings of January 29-30, 1998, page 21; April 20, 1989, page 4; December 3, 1987, page 15; February 20-23, 1973, page 10; December 10-12, 1970, pages 17-19; Alaska R.Crim.P., Rule 44; FRCrimP, Rule 49
; Wright, Federal Practice and Procedure: Criminal, § 821-824; 8A Moore's Federal Practice, Chapter 49 (Cipes, 2d Ed. 1971); Barron, Federal Practice and Procedure: Criminal, § 2541 2543 (1951).
SUPERSEDED: 29-28-10, NDCC.
CROSS REFERENCE: Rule 5, NDRCivP. Service and Filing of Pleadings and Other Papers.