ARREST OF ARRESTING JUDGMENT (a) In General. The On the defendant's motion or on its own, the court on motion of a defendant shall must arrest judgment if:
(1) the indictment, information, or complaint does not charge an offense; or
if the court was without does not have jurisdiction of the charged offense charged.
(b) Time to File. The
motion in defendant must move to arrest of judgment shall be made within seven 10 days after verdict or finding of guilty, or after a plea of guilty, or within such a further time as the court may fix set during the seven 10-day period.
Rule 34 was amended, effective_________________________.
Rule 34 is an adaption of Fed.R.Crim.P. 34, and differs only to the extent that it includes the
"complaint " as a charging document. The Rule follows existing law (N.D.C.C. ch. 29-25 (Motion in Arrest of Judgment.)) with the exception that it rule recognizes only two grounds for a motion in arrest of judgment: (1) that the indictment, information, or complaint does not charge an offense; and (2) that the court is without jurisdiction of the offense charged. These grounds are among the nonwaivable defenses referred to in N.D.R.Crim.P. Rule 12(b)(2). The distinction is that under this Rule the motion is made after determination of guilt, while under N.D.R.Crim.P. 12(b)(2) the motion can be made at any time during the pendency of the proceeding.
An attack on the sufficiency of the evidence should be by motion for acquittal under
N.D.R.Crim.P. Rule 29; a claim of errors at the trial should be made by motion for a new trial under N.D.R.Crim.P. Rule 33; and defects of form in the indictment, information, or complaint must be raised before trial by motion under N.D.R.Crim.P. Rule 12. The words "on motion of a defendant" are added to make clear that the court may act only pursuant to a timely motion by the defendant. (See 8A Moore's Federal Practice, p. 34-1 (Cipes, 2d Ed. 1972) and 18 U.S.C.A., Federal Rules of Criminal Procedure; Rule 33, 1966 Committee Note.)
A motion for arrest of judgment should ordinarily be made in writing
(see N.D.R.Crim.P. 47 and Explanatory Note) and served upon the parties and filed (see N.D.R.Crim.P. 49 and Explanatory Note). The grounds for the motion may be are stated in the language of the Rule rule.
Rule 34 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.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages _____; April 24-26, 1973, page 13; December 11-15, 1972, pages 19-20; September 26-27, 1968, pages 17-18;
18 U.S.C.A., Fed.R.Crim.P. 34 , page 113; Wright, Federal Practice and Procedure: Criminal, §§ 571-574 (1969); 8A Moore's Federal Practice, Chapter 34 (Cipes, 2d Ed. 1971); Barron, Federal Practice and Procedure: Criminal, § § 2291-2293 (1951).
SUPERSEDED: N.D.C.C. §§ 29-25-01, 29-25-02, 29-25-03, 29-25-04.
CONSIDERED: N.D.C.C. §§ 29-25-05, 29-25-06.
CROSS REFERENCE: N.D.R.Crim.P. 12 (Pleadings and Motions Before Trial; Defenses and Objections); N.D.R.Crim.P. 29 (Motion for Judgment of Acquittal); N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 47 (Motions); N.D.R.Crim.P. 49 (Service and Filing of Papers).