Obsolete Date: 3/1/2003
(a) [Reserved for Future Use.]
(b) Release Pending Appeal From a Judgment of Conviction. Application for release, modification of the conditions of release, or revocation of release, after a notice of appeal from a judgment of conviction has been filed shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, or revokes release the court shall state in writing the reasons for the action taken. Thereafter, a motion for release, or for modification of the conditions of release, or for revocation of release, pending review may be made to the supreme court or to a justice thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties present and after reasonable notice. The supreme court or a justice thereof may order the release of the appellant pending disposition of the motion.
[Amended effective March 1, 1986.]
This rule incorporates a procedure for release pending appeal in a criminal case but omits the federal procedure in Fed.R.App.P. 9 for appeal of an order refusing pre-conviction release, because there is no authority or precedent for these appeals under North Dakota practice.
This rule and N. D. R. Crim. P. 46(c) are identical. This rule regulates the procedure for release of a defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction.
This rule was amended, effective March 1, 1986, to permit modification or revocation of the release of a defendant who was initially released pending appeal, and to clarify that a motion for release after a notice of appeal is filed must be made in the first instance in the trial court and thereafter in the supreme court.
Rule 9 was amended, effective March 1, 2003. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Rule 9 was amended, effective October 1, 2014, to replace "paper" with "document."
Rule 9 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
CONSIDERED: N.D.C.C. ch. 31-15.
CROSS REFERENCE: N.D.R.Crim.P. 46 (Release from Custody).