RULE 21. TRANSFER FROM THE COUNTY
OR MUNICIPALITY FOR TRIAL
(a) For Prejudice in the County
or Municipality. The court upon Upon the defendant's motion, of the court must defendant shall transfer the proceeding against the defendant to another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied there that so great a prejudice against the defendant exists in the transferring county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial there.
(b) For Convenience and Justice.
For the convenience of parties and witnesses, and in the interest of justice Upon the defendant's motion, the court upon motion of the defendant may transfer the proceeding against the defendant to another county or municipality for the convenience of the parties and witnesses and in the interest of justice.
(c) Upon Motion of the Court.
On Upon its own motion, the court may transfer the trial to another county. If any party files an objection to the change of trial transfer no later than ten days after the date of notification of the place of trial, the trial must be held where originally venued at the original location unless grounds exist for a change of venue as provided in subdivision transfer under Rule 21(a), (b) or (f).
(d) Proceedings on Transfer.
(1) Transfer of File. When the court orders a transfer
is ordered, the court clerk shall transmit send to the transferee court to which the action or proceeding is transferred all papers in the action or proceeding, or duplicates thereof the file, or a certified copy, and any bail taken , and the. The prosecution shall will then continue in that the transferee county or municipality.
(2) Conduct of Case.
Whenever the place of trial is changed as provided in this rule Upon a transfer under Rule 21, the prosecuting attorney of the county or municipality where the action or proceeding was commenced, or any other person appointed to prosecute, shall prosecute the case, and the judge ordering the transfer shall preside at the trial. The action or proceeding, except for the payment and collection of costs, must be conducted in all respects as if it had been commenced in the transferee court to which it is transferred.
(e) Transfer of Records. After acquittal or conviction in the action or proceeding, the transferee court
to which the action or proceeding was transferred shall must retransmit all papers documents in the action or proceeding to the court in which where the action was commenced.
(f) Transfer by Prosecution.
The prosecution may apply for a transfer of the action or proceeding as a defendant may apply Upon the prosecution's motion, and the court being satisfied that it will promote the ends of justice, may order such removal upon the terms and to the extent and in the manner provided in this rule transfer the proceeding for the reasons listed in Rule 21 (a) and (b).
(g) Transfer of Defendant. The transferring court
shall must order the officer having who has the defendant in custody to transfer the defendant to the custody of the proper officer of the transferee county or municipality to which the action or proceeding is transferred. The transfer must be made according to under the terms of the order.
Rule 21 was amended, effective March 1, 1990; March 1, 2001;______________.
Rule 21 was amended, effective March 1, 2001. A new subdivision (c) allows a court to transfer a trial to another county
in the absence of an when there is no objection. In deciding to move a trial or proceeding, a trial court must consider N.D. Sup. Ct. Admin. R. 6(B) and 7(B). The subdivisions were redesignated accordingly.
Rule 21 was amended, effective ______________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. In addition, reference to transfers between municipalities was removed from the rule.
Rule 21 contemplates that all transfers shall be made from one court to a corresponding court of the same grade and classification.
Subdivisions (a), (b) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 21 is not designed for cases in which it is claimed that the judge is biased, as there are statutory remedies enabling a party to disqualify a judge. See N.D.C.C. § 29-15-21.
Subdivision (g) was added to incorporate the provisions of N.D.C.C. § 29-15-05. (Disposition of defendant upon removal.).
SOURCES: Joint Procedure Committee Minutes of January 23-24, 2005, pages ___; September 23-24, 1999, pages 13-15; September 24-25, 1998, pages 16-17; April 20, 1989, page 4; December 3, 1987, page 15; September 18-19, 1980, pages 15-18; April 24-26, 1973, page 11; October 17-20, 1972, pages 5-11; September 17-18, 1970, pages 7-9; September 25-27, 1968, pages 9-11; Fed.R.Crim.P. 21
; Wright, Federal Practice and Procedure: Criminal, § § 341-347 (1969); 8 Moore's Federal Practice, Chapter 21 (Cipes, 2d Ed. 1970).
SUPERSEDED: N.D.C.C. §§ 29-01-33, 29-15-01, 29-15-02, 29-15-03, 29-15-04, 29-15-05, 29-15-06, 29-15-07, 29-15-08, 29-15-09, 29-15-10, 29-15-11, 29-15-12, 29-15-20, 33-12-14, 40-18-21.
CONSIDERED: N.D.C.C. §§ 27-05-22, 29-15-21, 33-03-11.
CROSS REFERENCE: N.D.Sup.Ct.Admin.R. 6 (Judicial Districts); N.D.Sup.Ct.Admin.R. 7 (Designation of Judgeships and Chambers with Assignments).