RULE 38. STAY OF EXECUTION AND RELIEF PENDING REVIEW
Effective Date: 3/1/1990
Obsolete Date: 3/1/2006
(a) Stay of Execution.
(1) Death. A sentence of death shall be stayed pending the determination of any appeal or other review by an appropriate court of this State.
(2) Imprisonment. A sentence of imprisonment is stayed if an appeal is taken and the defendant is released pending disposition of the appeal pursuant to Rule 9(b), North Dakota Rules of Appellate Procedure.
(3) Fine. A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court upon such terms as the court considers proper. The trial court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating assets.
(4) Probation. An order placing the defendant on probation may be stayed if an appeal is taken. If the order is stayed the court shall fix the terms of the stay.
(b) [Reserved for Future Use.}
(c) [Reserved for Future Use.}
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.
STATUTES AFFECTED:
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).