RULE 37. APPEAL AS OF RIGHT TO DISTRICT COURT; HOW TAKEN
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a trial court to the appellate court
shall may be taken only by filing a notice of appeal with the clerk of the trial court clerk within the time allowed by Subdivision (b) of this Rule 37(b).
Failure of an appellant An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, which may include dismissal of to act as it considers appropriate, including dismissing the appeal.
(b) Time for
Appeal; When Taken Filing a Notice of Appeal.
The notice of appeal by a defendant A defendant's notice of appeal must be filed with the clerk of the trial court clerk within 10 days after the entry of the judgment or order being appealed from. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment.
(2) If an appeal by the prosecution is authorized by statute,
the its notice of appeal must be filed with the clerk of the trial court clerk within 30 days after entry of judgment or order being appealed from.
(c) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
(d) Effect of a Motion on a Notice of Appeal.
(1) If a defendant timely makes any of the following motions under the North Dakota Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 10 days after the entry of the order disposing of the last such remaining motion, or within 10 days after the entry of the judgment of conviction, whichever period ends later;
(i) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 10 days after the entry of the judgment; or
(ii) for arrest of judgment under Rule 34.
(3) A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. A notice of appeal filed after the announcement of the verdict, decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on the day thereof. (e) Upon a showing finding of excusable neglect or good cause, the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. (c) (f) Content of the Notice of Appeal. The notice of appeal shall must:
(1) specify the party or parties taking the appeal;
shall designate the verdict, judgment, order, or part thereof being appealed from; and
shall name the court to which the appeal is taken. (d) Service of (g) Serving the Notice of Appeal.
clerk of the trial court clerk shall promptly serve notice of the filing of the notice of appeal by mailing or sending on the defendant. In 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 appellate court clerk and each party's counsel of record -- excluding the appellants -- or, if a party is proceeding pro se, to the party's last know address. the prosecutor and to the defendant's counsel, if any, of record. The clerk shall also send a copy of the notice of appeal and of the docket entries to the clerk of the appellate court. The trial court clerk shall note on, each copy, served the date on which when the notice of appeal was filed.
(2) The trial court clerk's failure
Failure of the clerk to serve a copy of the notice of appeal does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or the party's counsel. The trial court clerk shall note in on the docket the names of the parties to whom the clerk sends copies are sent and the date they were sent. Service is sufficient despite the death of a party or the party's counsel (e)(h) Transmittal to Appellate Court. Within five days after the notice of appeal is filed with the court from which the appeal is taken, the trial court clerk of the court, or the judge if there is no clerk, shall transmit to the appellate court clerk of the court to which the appeal is taken the notice of appeal, the verdict, the judgment, or any order of the court from which the appeal is taken, the complaint or information, and the undertaking on appeal, if any, and all documents and papers filed in the action, which shall be docketed by the clerk of the appellate court clerk without charge to the appellant. (f) (i) Designation of Parties on Appeal. A party appealing shall be known as is the appellant and an adverse party shall be known as is the appellee, but the title of the action shall is not be changed in as a consequence of the appeal. (g) (j) Effect and Scope of Appeal. An A perfected appeal to the district court when perfected, transfers the action for trial anew. An appeal from a judgment of conviction constitutes an appeal from any verdict of guilty upon which the judgment is rendered. (h) (k) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time an appeal is taken except as otherwise provided in these Rules. The appellate court, at any time after an appeal is taken, may entertain a motion to dismiss the appeal or direct the trial court to modify or vacate any order made by the trial court or by any judge relating to the prosecution of the appeal, including any order fixing or denying bail.
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 N.D.R.App.P. 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 (N.D.C.C. § 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 N.D.C.C. § 29-28-07, provided the appeal does not infringe upon the defendant's constitutional right prohibiting double jeopardy.
Subdivision (b) parallels N.D.R.App.P. 4(b)(1).
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 for filing the notice of appeal be filed [with the clerk of the trial court ] clerk within 10 days of the entry of judgment or order being 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) (e) which permits the trial court to extend the time for appeal upon a showing of excusable neglect or good cause. The provision in Rule 32 which requires the 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 must 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). See N.D.R.App.P. 4(b)(2).
Subdivision (d) is adapted from N.D.R.App.P. 4(b)(3), and addresses the effect of a motion for a new trial or arrest of judgment on a notice of appeal.
Subdivision (e) is adapted from N.D.R.App.P. 4(b)(4), and authorizes an extension of time to file a notice of appeal upon a finding of excusable neglect or good cause.
(c) (f) is adapted from the language of N.D.R.App.P. 3(c), which has its origins in former Fed.R.Crim.P. 37(a). Three requirements for the A 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 being 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.
(d) (g) is adapted from N.D.R.App.P. 3(d), 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 clerk (or magistrate where there is no clerk) to : (1) serve notice of the filing of notice of appeal on the appellate court clerk and each party's counsel of record, the defendant and to send a copy to 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) send a copy of the notice of appeal and of the docket entries to the clerk of the appellate court; and (3) note on each copy served the date on which the notice of appeal was filed.
Subdivision (g) allows
(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.
(e) (h) establishes a five-day maximum time limit within which for the trial court clerk, or judge where there is no clerk, must to forward to the appellate court clerk the file with those all documents and papers filed in the action listed in the Rule to the clerk of court to which the appeal is taken.
(f) (i) provides the designation of parties to the on appeal. It makes explicit that the title of the action shall not be changed "in consequence" as a 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.
(g) (j) defines the effect of appeal. This subdivision follows N.D.C.C. § 40-18-19 in providing for trial anew when an appeal is taken to the district court from the municipal court.
(h) (k) is adapted from Fed.R.Crim.P. 39 (abrogated in 1968). Provision for supervision of appeal is included in this Rule to cover appeals to the District Courts. This subdivision provides the appellee may obtain relief from the appeal by one of the methods stated. The provision contemplates the 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 although 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: Joint Procedure Committee Minutes 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: N.D. Const. art.
Art. VI, § 8 , North Dakota Constitution [formerly § 103].
SUPERSEDED: N.D.C.C. §§ 29-28-04, 29-28-08, 29-28-09, 29-28-11, 33-12-35, 33-12-40.
CONSIDERED: N.D.C.C. §§ 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.
CROSS REFERENCES: N.D.R.Crim.P. 32.--Sentence and Judgment; N.D.R.Crim.P. 33.--New Trial; N.D.R.Crim.P. 34.--Arrest of Judgment; N.D.R.App.P. 3.--
Appeals from the District Court Appeal as of Right--How Taken; N.D.R.App.P. 4.--Appeal--When Taken.
[Note: Rules 3 and 4 pertain to appeals to the Supreme Court.]