RULE 9. RELEASE IN
CRIMINAL CASES CRIMINAL CASE (a) [Reserved for Future Use.] (b) Release Pending Appeal From a Judgment of Conviction.
(a) Motion to District Court. Any motion
Application for release, modification of the conditions of release, or revocation of release , after a notice of appeal from a judgment of conviction has been filed shall must first be made in the first instance in to the trial district court before the motion may be made to the supreme court. If the trial district court refuses release pending appeal, or imposes conditions of release, or revokes release the court shall must state in writing the reasons for the action taken.
(b) Motion to Supreme Court. After having first been made to the district court,
Thereafter, a motion for release, or for modification of the conditions of release, or for revocation of release , pending review may be made to the supreme court or to a justice thereof one of its justices. The After reasonable notice to the appellee, the motion shall must be determined promptly upon such papers, affidavits, and portions of the record as the parties present and after reasonable notice. The supreme court or a justice thereof one of its justices may order the release of the appellant pending disposition of the motion.
Rule 9 was amended, effective March 1, 1986; March 1, 2003.
This rule incorporates a procedure for release pending appeal in a criminal case but omits the federal procedure in Fed.R.App.P. 9
(a), for appeal of an order refusing pre-conviction release, because there is no authority or precedent for these appeals under North Dakota practice. Subdivision (b) This rule and N.D.R.Crim.P. 46(d) are identical and are derived from Fed.R.App.P. 9(b). These subdivisions regulate This rule regulates the procedure for release of the a defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (b) and N.D.R.Crim.P. 46(d) were This rule was amended, effective March 1, 1986, to permit modification or revocation of the release of a defendant who was initially released pending appeal, and to clarify that an application a motion for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court. The North Dakota Supreme Court has stated that on a motion for release pending appeal under this rule, the defendant is entitled to release only if it appears: "(1) that the appeal is not frivolous, (2) that the appeal is not taken for the purpose of delay, (3) that there is sufficient reason to believe that the conditions of release will reasonably assure that the defendant will not flee, and (4) there is sufficient reason to believe that the defendant does not pose a danger to any other person or to the community." State v. Azure, 241 N.W.2d 699, 700 (N.D. 1976).
Rule 9 was amended, effective March 1, 2003. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of September 23-24, 1999, pages 18-19; November 29, 1984, pages 14-15; April 26, 1984, pages 11-17; May 25-26, 1978, pages 6-7.
CROSS REFERENCE: N.D.R.Crim.P. 46(d) (Motion for Release
Pending Appeal from a Judgment of Conviction).