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RULE 37. APPEAL AS OF RIGHT TO DISTRICT COURT; HOW TAKEN

Effective Date: 3/1/2011

(a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a municipal court to the district court may be taken only by filing a notice of appeal with the municipal court clerk within the time allowed by Rule 37(b).

(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is grounds only for the district court to act as it considers appropriate, including dismissing the appeal.

(b) Time for Filing a Notice of Appeal.

(1) A defendant's notice of appeal must be filed with the municipal court clerk within 30 days after the entry of the judgment or order being appealed.

(2) If an appeal by the prosecution is authorized by statute, the notice of appeal must be filed with the municipal court clerk within 30 days after entry of judgment or order being appealed.

(c) Filing Before Entry of Judgment. A notice of appeal filed after the municipal court announces a decision, sentence, or order, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.

(d) Effect of a Motion on a Notice of Appeal.

(1) If a defendant timely makes any of the following motions under the North Dakota Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 30 days after the entry of the order disposing of the last such remaining motion, or within 30 days after the entry of the judgment of conviction, whichever period ends later:

(A) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 30 days after the entry of the judgment; or

(B) for arrest of judgment under Rule 34.

(e) Extension of Time. Upon a finding of excusable neglect or good cause, the municipal court may, before or after the time has expired, with or without motion and notice, extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

(f) Content of the Notice of Appeal. The notice of appeal must:

(1) specify the party or parties taking the appeal;

(2) designate the verdict, judgment, order, or part thereof being appealed; and

(3) name the district court to which the appeal is taken.

(g) Serving the notice of appeal.

(1) The municipal court clerk must promptly serve notice of the filing of the notice of appeal by mailing or sending by third-party commercial carrier a copy of the notice of appeal to the clerk of district court and each party's counsel of record—excluding the appellant's—or, if a party is proceeding pro se, to the party's last-known address. The municipal court clerk must note on each copy the date the notice of appeal was filed.

(2) The municipal court clerk's failure to serve a copy of the notice of appeal does not affect the validity of the appeal. The municipal court clerk must note on the docket the names of the parties to whom the clerk sends copies and the date they were sent. Service is sufficient despite the death of a party or the party's counsel.

(h) Transmittal to District Court. Within seven days after the notice of appeal is filed, the municipal court clerk, or the judge if there is no clerk, must transmit to the clerk of district court all documents filed in the action, which must be docketed by the clerk of district court without charge to the appellant.

(i) Designation of Parties on Appeal. A party appealing is the appellant and an opposing party is the appellee, but the title of the action is not changed as a consequence of the appeal.

(j) Effect and Scope of Appeal. A perfected appeal to the district court transfers the action for trial anew. An appeal from a judgment of conviction constitutes an appeal from any verdict of guilty upon which the judgment is rendered.

(k) Supervision in District Court. The supervision and control of the proceedings on appeal will be in the district court from the time an appeal is taken except as otherwise provided in these rules. The district court, at any time after an appeal is taken, may hear a motion to dismiss the appeal or direct the municipal court to modify or vacate any order made by the municipal court or by any judge relating to the prosecution of the appeal, including any order fixing or denying bail.

(l) Summary Affirmance. If the appellant fails to appear at the trial anew, the district court must summarily affirm the judgment and enter it as a judgment of the district court unless the appellant on motion within seven days after the date set for the trial anew shows good cause for failure to appear.

Rule 37 was amended, effective September 1, 1983; March 1, 1986; January 1, 1995; March 1, 1999; March 1, 2003; March 1, 2006; March 1, 2008; March 1, 2011.

Rule 37 has no counterpart in the Federal Rules of Criminal Procedure. The requirement for a rule of procedure for criminal appeals is necessary because the North Dakota Rules of Appellate Procedure are limited in scope to appeals to the supreme court while the scope of criminal rules includes the municipal courts. The rule is intended to parallel as closely as possible the procedure of the appellate rules.

Rule 37 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.

Subdivision (a) parallels N.D.R.App.P. 3(a).

Subdivision (b) parallels N.D.R.App.P. 4(b)(1).

The requirement for filing the notice of appeal with the municipal court clerk within 30 days of the entry of judgment or order being appealed is mandatory and jurisdictional. The mandatory and jurisdictional requirement is eased by subdivision (e) which permits the municipal court to extend the time for appeal upon a showing of excusable neglect or good cause. The provision in Rule 32 that requires the defendant to be advised of the right to appeal and the right of a person who is unable to pay the cost of appeal to have it provided at public expense is a necessary part of a valid sentence and until it is given, the 30-day period for taking an appeal cannot begin to run because there is no valid sentence in existence.

Subdivision (d) is adapted from N.D.R.App.P. 4(b)(3) and addresses the effect of a motion for a new trial or arrest of judgment on a notice of appeal.

Subdivision (e) is adapted from N.D.R.App.P. 4(b)(4) and authorizes an extension of time to file a notice of appeal upon a finding of excusable neglect or good cause.

Subdivision (f) is adapted from the language of N.D.R.App.P. 3(c). A notice of appeal must (1) specify the parties taking the appeal, (2) designate the verdict, judgment or order or part thereof appealed from, and (3) name the court to which the appeal is taken. Under the first requirement, it is important that the notice specify by name the appellant or appellants. Failure of the notice to correctly designate the court to which the appeal is taken does not vitiate it. Misnomer is immaterial, at least if it is obvious to which district court the appeal must go. The requirement that the notice of appeal designate the judgment or part thereof being appealed was designed to simplify the taking of an appeal by requiring nothing more for its perfection than an identification of the judgment by the date of its entry.

Subdivision (g) is adapted from N.D.R.App.P. 3(d), and provides for service of the notice of appeal. Under this subdivision, the appellant is not obligated to serve the notice of appeal on other parties to the action. It is the duty of the municipal court clerk (or magistrate where there is no clerk) to serve notice of the filing of notice of appeal on the clerk of district court and each party's counsel of record, and note on each copy served the date on which the notice of appeal was filed.

Subdivision (g) allows the clerk to send the notice of the filing of the notice of appeal via a commercial carrier as an alternative to mail.

Subdivision (h) establishes a seven-day maximum time limit for the municipal court clerk, or judge where there is no clerk, to forward to the clerk of district court the file with all documents filed in the action. Subdivision (h) was amended, effective March 1, 2011, to increase the time from five to seven days.

Subdivision (i) provides the designation of parties on appeal. It makes explicit that the title of the action shall not be changed as a consequence of the appeal. The designation of the party who contends against the appeal as an appellee rather than respondent is intended to avoid confusion, especially in special proceedings.

Subdivision (j) defines the effect of appeal. This subdivision follows N.D.C.C. § 40-18-19 in providing for trial anew when an appeal is taken to the district court from the municipal court.

Subdivision (k) provides the appellee may obtain relief from the appeal by one of the methods stated. The provision contemplates the parties shall first apply to the municipal court for any relief regarding the appeal; however, once the appeal passes to the district court, the municipal court has no power to modify its judgment or dismiss the appeal.

Subdivision (l) was added, effective March 1, 2008, to require the court to summarily affirm the judgment when an appellant fails to appear at a requested trial anew unless the appellant can show good cause for the failure to appear. Subdivision (l) was amended, effective March 1, 2011, to increase the time for an appellant to show good cause for failure to appear from five to seven days.

It should be noted although the rule does not always explicitly say so, it is the intent of this rule that the judge will perform the duties of the clerk where no clerk is appointed.

SOURCES: Joint Procedure Committee Minutes of April 29-30, 2010, page 20; September 28-29, 2006, pages 8-10; January 27-28, 2005, pages 32-33; April 26-27, 2001, pages 4-6; January 29-30, 1998, page 20; April 28-29, 1994, pages 6-7; January 27-28, 1994, page 10; September 23-24, 1993, page 10; November 29, 1984, page 20; February 17-18, 1983, pages 14-20; February 20-23, 1973, pages 5-8; December 11-15, 1972, pages 5-16; July 10-11, 1969, pages 4-6; May 15-16, 1969, pages 2-11; February 20-21, 1969, pages 15-17.

SEE ALSO: N.D. Const. art. VI, § 8.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 29-28-04, 29-28-08, 29-28-09, 29-28-11, 33-12-35, 33-12-40.

CONSIDERED: N.D.C.C. §§ 27-07-02, 27-07.1-18, 27-08-21, 28-27-06, 29-23-11, 29-28-02, 29-28-06, 29-28-07, 29-28-20, 29-28-21, 33-12-34, 33-12-41, 40-18-19.

CROSS REFERENCE: N.D.R.Crim.P. 32 (Sentencing and Judgment); N.D.R.Crim.P. 33 (New Trial); N.D.R.Crim.P. 34 (Arresting Judgment); N.D.R.Crim.P. 43 (Defendant's Presence); N.D.R.App.P. 3 (Appeal as of Right—How Taken); N.D.R.App.P. 4 (Appeal—When Taken).

Effective Date Obsolete Date
03/01/2011 View
03/01/2008 03/01/2011 View
03/01/2006 03/01/2008 View
03/01/2003 03/01/2006 View
03/01/1999 03/01/2003 View
04/28/1994 03/01/1999 View