RULE 21. TRANSFER FROM THE COUNTY OR MUNICIPALITY FOR TRIAL
Effective Date: 3/1/2001
Obsolete Date: 3/1/2006
(a) For Prejudice in the County or Municipality. The court upon motion of the defendant shall transfer the proceeding to another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied there exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.
(b) For Convenience and Justice. For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding to another county or municipality.
(c) Upon Motion of the Court. On its own motion, the court may transfer the trial to another county. If any party files an objection to the change of trial no later than ten days after the date of notification of the place of trial, the trial must be held where originally venued unless grounds exist for a change of venue as provided in subdivision (a), (b) or (f).
(d) Proceedings on Transfer. When a transfer is ordered, the court shall transmit to the court to which the action or proceeding is transferred all papers in the action or proceeding, or duplicates thereof, and any bail taken, and the prosecution must continue in that county or municipality. Whenever the place of trial is changed as provided in this Rule, the prosecuting attorney of the county or municipality where the action or proceeding was commenced, or any other person appointed to prosecute, shall prosecute the case, and the judge ordering the transfer shall preside at the trial. The action or proceeding, except for the payment and collection of costs, must be conducted in all respects as if it had been commenced in the court to which it is transferred.
(e) Transfer of Records. After acquittal or conviction in the action or proceeding, the court to which the action or proceeding was transferred shall retransmit all papers in the action or proceeding to the court in which the action was commenced.
(f) Transfer by Prosecution. The prosecution may apply for a transfer of the action or proceeding as a defendant may apply, and the court being satisfied that it will promote the ends of justice, may order such removal upon the terms and to the extent and in the manner provided in this Rule.
(g) Transfer of Defendant. The transferring court shall order the officer having the defendant in custody to transfer the defendant to the custody of the proper officer of the county or municipality to which the action or proceeding is transferred. The transfer must be made according to the terms of the order.
Rule 21 was amended, effective March 1, 1990; March 1, 2001 in Supreme Court Docket No. 20000212 & 20000276; March 1, 2006; March 1, 2016.
Rule 21 was amended, effective March 1, 2001. A new subdivision (c) allows a court to transfer a trial to another county when there is no objection. In deciding to move a trial or proceeding, a trial court must consider N.D. Sup. Ct. Admin. R. 6(B) and 7(B).
Rule 21 was amended, effective March 1, 2006, 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. In addition, reference to transfers between municipalities was removed from the rule.
Rule 21 contemplates that all transfers shall be made from one court to a corresponding court of the same grade and classification.
Subdivisions (a), (b) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 21 is not designed for cases in which it is claimed that the judge is biased, as there are statutory remedies enabling a party to disqualify a judge. See N.D.C.C. § 29-15-21.
Paragraph (d)(1) on file transfers and former subdivision (e) on transfer of records were deleted, effective March 1, 2016.
Subdivision (f) was added to incorporate the provisions of N.D.C.C. § 29-15-05 (Disposition of defendant upon removal).
SOURCES: Joint Procedure Committee Minutes of January 29-30, 2015, pages 22-23; April 28-29, 2005, page 3; January 23-24, 2005, page 17; September 23-24, 1999, pages 13-15; September 24-25, 1998, pages 16-17; April 20, 1989, page 4; December 3, 1987, page 15; September 18-19, 1980, pages 15-18; April 24-26, 1973, page 11; October 17-20, 1972, pages 5- 11; September 17-18, 1970, pages 7-9; September 25-27, 1968, pages 9-11; Fed.R.Crim.P. 21.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 29-01-33, 29-15-01, 29-15-02, 29-15-03, 29-15-04, 29-15-05, 29-15-06, 29-15-07, 29-15-08, 29-15-09, 29-15-10, 29-15-11, 29-15-12, 29-15-20, 33-12-14, 40-18-21.
CONSIDERED: N.D.C.C. §§ 27-05-22, 29-15-21, 33-03-11.
CROSS REFERENCE: N.D. Sup. Ct. Admin. R. 6 (Judicial Districts); N.D. Sup. Ct. Admin. R. 7 (Designation of Judgeships and Chambers with Assignments).