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Effective Date: 3/1/2006

(a) Imprisonment. If the defendant is released pending appeal under N.D.R.App.P. 9, the court must stay a sentence of imprisonment.

(b) Fine. If the defendant appeals, the court may stay a sentence to pay a fine, fee or costs. The court may stay the sentence on any terms considered appropriate and may require the defendant to:

(1) deposit all or part of the fine, fee or costs with the clerk;

(2) post a bond to pay the fine, fee or costs; or

(3) submit to an examination concerning the defendant's assets and, if appropriate, order the defendant to refrain from dissipating assets.

(c) Probation. If the defendant appeals, the court may stay a sentence of probation. The court must set the terms of any stay.

(d) Restitution and Notice to Victims.

(1) In General. If the defendant appeals, the court may stay, on any terms considered appropriate, any sentence providing for restitution or notice to victims.

(2) Ensuring Compliance. The court may issue any order reasonably necessary to ensure compliance with a restitution order or a notice order after disposition of an appeal, including:

(A) a restraining order;

(B) an injunction;

(C) an order requiring the defendant to deposit all or part of any monetary restitution into the district court's registry; or

(D) an order requiring the defendant to post a bond.

Rule 38 was amended, effective March 1, 1990; March 1, 2006.

Rule 38 is an adaptation of Fed.R.Crim.P. 38. The rule provides the court with the power to stay execution of sentence and permits the defendant to avoid imposition of sentence pending determination of the defendant's appeal. The rule does not impinge on the authority of executive reprieve as provided in Article V, Section 7 of the State Constitution.

Subdivisions(a), (b), and (c) are substantially the same as in the federal rule. Provisions for change of place of confinement as set out in the federal rule was not included in this rule since the geographical problems are not the same.

Rule 38 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 (b) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.

Subdivision (d) was added, effective March 1, 2006, to provide for stay of a restitution or notice order. It was derived from Fed.R.Crim.P. 38(e).

SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, page 33; April 20, 1989, page 4; December 3, 1987, page 15; March 16-17, 1978, pages 16-17; December 11-15, 1972, pages 25-29; July 10-11, 1969, page 7; May 15-16, 1969, pages 15-20; Fed.R.Crim.P. 38.


SUPERSEDED: N.D.C.C. §§ 29-28-09, 29-28-13, 29-28-14, 29-28-15, 29-28-16, 29-28-17.

CONSIDERED: N.D.C.C. §§ 12-50-06, 29-28-12.

CROSS REFERENCE: N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 46 (Release from Custody); N.D.R.App.P. 8 (Stay or Injunction Pending Appeal); N.D.R.App.P. 9 (Release in Criminal Cases).

Effective Date Obsolete Date
03/01/2006 View
03/01/1990 03/01/2006 View