Obsolete Date: 3/1/2021
(a) Motion to District Court. Any motion 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 must first be made to the district court before the motion may be made to the supreme court. If the district court refuses release pending appeal, or imposes conditions of release, or revokes release the court must state in writing the reasons for the action taken.
(b) Motion to Supreme Court. After having first been made to the district court, 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 one of its justices. After reasonable notice to the appellee, the motion must be determined promptly upon such documents, affidavits, and portions of the record as the parties present. The court or one of its justices may order the release of the appellant pending disposition of the motion.
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).