RULE 45. TIME
(a) Computation. In computing any period of time, the day of the act or event from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less than
seven 11 days, intermediate Saturdays, Sundays, and legal holidays must be excluded in the computation. Service by facsimile transmission must be completed by 5:00 p.m., receiver's time, on a weekday, which is not a legal holiday, or service is considered made on the following weekday which is not a legal holiday.
(b) Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if a request
therefor for enlargement is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under Rules 29, 33, 34, 35, and 37, except to the extent and under the conditions stated in them.
(c) Unaffected by Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any criminal action which
has been is pending before it.
(d) For Motions; Affidavits. A written motion, other than one which may be heard ex parte, and notice of the motion must be served at least
14 18 days before the motion may be heard, unless a different period is fixed by rule or court order of the court. For cause shown such an order may be made on ex parte application. A party may apply ex parte for the court to hear a motion sooner than 18 days after service of the motion. When a motion is supported by affidavit, the affidavit must be served with the motion; and opposing affidavits may be served not less than 1 day before the hearing unless the court permits them to be served at a later time.
(e) Additional Time After Service by Mail or Commercial Carrier. Whenever a party has the right or is required to do an act within a prescribed period after service of a notice or other paper and the notice or
other paper is served by mail or third-party commercial carrier, 3 days must be added to the prescribed period. Service by facsimile transmission is not service by mail or third-party commercial carrier for purposes of this rule.
Rule 45 was amended, effective March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2001.
Rule 45 is an adaptation of Fed.R.Crim.P. 45 with certain modifications. The rule is similar, as well, to N.D.R.Civ.P. 6 which deals with time.
Subdivision (a) was amended, effective March 1, 2001, to extend the period from 7 days to 11 days when intermediate Saturdays, Sundays, and legal holidays are excluded from time computations.
Subdivision (c) is an adaptation of N.D.R.Civ.P. 6(c).
Subdivisions (d) and (e) are adaptations of N.D.R.Civ.P. 6(d) and (e). Subdivision (d) must be construed with Rule 47 relating to motions generally, Rule 49 relating to the service and filing of papers, and N.D.R.Ct. 3.2 relating to submission of motions.
Subdivision (d) was amended, effective January 1, 1995, to require service of a written motion, and notice, at least 14 days before the hearing
instead of five. The March 1, 2001 amendment extended the 14 days to 18 days.
Subdivision (e), which provides additional time for the exercise of a right or the doing of an act when service of notice is by mail, is similar to N.D.R.Civ.P. 6(e).
Subdivision (e) was amended, effective March 1, 1999, to make the three-day extension for service by mail applicable when service is via commercial carrier. The proof of service must contain the date of mailing or deposit with the commercial carrier. See N.D.R.Crim.P. 49(e), and N.D.R.Civ.P. 4(k) and 5(f).
Subdivisions (a) and (e) were amended, effective January 1, 1995, to clarify time computations when making service by facsimile transmission.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2000, pages 16-17; January 29-30, 1998, page 20; April 28-29, 1994, pages 15-16; January 27-28, 1994, pages 24-25; September 23-24, 1993, pages 14-16 and 20; April 29-30, 1993, pages 20-22; April 20, 1989, page 4; December 3, 1987, page 15; June 22, 1984, page 31; December 11-15, 1972, pages 48-50; September 17-19, 1970, page 10; March 12-14, 1970, pages 16-18; Fed.R.Crim.P. 45.
SUPERSEDED INSOFAR AS CRIMINAL PROCESS: N.D.C.C. § 1-02-15.
CONSIDERED: N.D.C.C. §§ 1-01-33, 1-03-01(2-14).
CROSS REFERENCES: N.D.R.Civ.P. 6.--Time; N.D.R.App.P. 26.--Computation and Extension of Time.