TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 37, N.D.R.Crim.P., Appeal as of Right to District Court; How Taken; Rule 43, N.D.R.Crim.P., Defendant's Presence
The North Dakota Supreme Court recently decided the case of City of Fargo v. Komad, 2006 ND 177. Komad involved a defendant who appealed a municipal court judgment but then failed to show up at his district court trial anew. The district court proceeded with the trial in the defendant's absence and affirmed the municipal court conviction. In a split decision, the Supreme Court reversed and remanded for a new trial.
While Justice Maring supported the decision reversing and remanding, she stated in a special concurrence that Rule 37 and 43 needed to be amended to allow a district court to affirm a municipal court judgment when the defendant fails to appear for the trial anew. Komad, at ¶ 19.
In a dissent joined by Justice Crothers, Justice Sandstrom explained that the drafters of Rule 37 and 43 had relied on N.D.C.C. § 33-12-41 to provide a remedy when a defendant failed to appear for a trial anew. Komad, at ¶¶ 38-41. A copy of the statute is attached. Unfortunately, this statute was removed from the code when all of ch. 33-12 was repealed effective January 1, 1983.
Staff has prepared proposed amendments to Rule 37 that allow a district court to summarily affirm a judgment when a defendant fails to attend a requested trial anew. The proposed amendment is based on section 33-12-41's language and gives the court discretion to affirm. Allowing discretion is a departure from the old statutory language that required summary affirmance when the defendant did not appear at a trial anew.
Staff has also prepared a proposed amendment to the explanatory note of Rule 43 referencing the change to Rule 37. The amended rule proposals are both attached.