CHAPTER 29-01 General Provisions

29-01-01. How crimes prosecuted — Exceptions.

Every public offense must be prosecuted by information or indictment unless it is one in which:

  1. A proceeding is had for the removal of a civil officer of the state or an officer of some political subdivision thereof;
  2. There is a breach of military discipline arising in the militia, when in actual service, and in the land and naval forces in time of war or public danger, or which this state may keep, with the consent of Congress, in time of peace;
  3. The offense is a misdemeanor or an infraction; or
  4. Trial may be had in municipal court.

Source:

C. Crim. P. 1877, § 7; R.C. 1895, § 7745; R.C. 1899, § 7745; R.C. 1905, § 9553; C.L. 1913, § 10389; R.C. 1943, § 29-0101; S.L. 1981, ch. 320, § 66; 1991, ch. 326, § 105; 1995, ch. 316, § 1.

Cross-References.

Military courts, see chapter 37-09.

Notes to Decisions

Construction.

Provisions of this title apply primarily to appeals by an accused and should be liberally construed to the end that an accused receives justice; provisions of this title should be strictly construed against the state. State v. Mees, 196 N.W.2d 399, 1972 N.D. LEXIS 172 (N.D. 1972).

Collateral References.

Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney, 90 A.L.R.6th 385.

29-01-02. Criminal action medium of trial and punishment.

The proceeding by which a party charged with a public offense is accused and brought to trial and punishment is known as a criminal action.

Source:

C.Crim.P. 1877, § 8; R.C. 1895, § 7746; R.C. 1899, § 7746; R.C. 1905, § 9554; C.L. 1913, § 10390; R.C. 1943, § 29-0102.

29-01-03. How prosecution entitled.

A criminal action is prosecuted in the name of the state of North Dakota as a party against the party charged with the offense.

Source:

C. Crim. P. 1877, § 9; R.C. 1895, § 7747; R.C. 1899, § 7747; R.C. 1905, § 9555; C.L. 1913, § 10391; R.C. 1943, § 29-0103.

29-01-04. Affidavits need not be entitled.

It is not necessary to entitle an affidavit or deposition in an action whether taken before or after information or indictment or upon an appeal, but if made without a title or with an erroneous title, it is as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refers to the proceeding, information, indictment, or appeal in which it is made.

Source:

C. Crim. P. 1877, § 536; R.C. 1895, § 8422; R.C. 1899, § 8422; R.C. 1905, § 10231; C.L. 1913, § 11087; R.C. 1943, § 29-0104.

29-01-05. Party defendant is party prosecuted.

The party prosecuted in a criminal action is designated in this code as the accused or as the defendant.

Source:

C. Crim. P. 1877, § 10; R.C. 1895, § 7748; R.C. 1899, § 7748; R.C. 1905, § 9556; C.L. 1913, § 10392; R.C. 1943, § 29-0105.

29-01-06. Rights of defendant.

In all criminal prosecutions the party accused has the right:

  1. To appear and defend in person and with counsel;
  2. To demand and be informed of the nature and cause of the accusation;
  3. To meet the witnesses against the party face to face;
  4. To have the process of the court to compel the attendance of witnesses in the party’s behalf; and
  5. To a speedy and public trial, and by an impartial jury in the county in which the offense is alleged to have been committed or is triable, but subject to the right of the state to have a change of the place of trial for any of the causes for which the party accused may obtain the same.

Source:

C. Crim. P. 1877, § 11; R.C. 1895, § 7749; R.C. 1899, § 7749; R.C. 1905, § 9557; C.L. 1913, § 10393; R.C. 1943, § 29-0106; 2009, ch. 264, § 2.

Effective Date.

The 2009 amendment of this section by section 2 of chapter 264, S.L. 2009 became effective August 1, 2009.

Cross-References.

Attorney’s fees, see § 28-26-01.

Declaration of rights, see N.D. Const., Art. I.

North Dakota legal counsel for indigents, see Administrative Rule 18, North Dakota Court Rules Annotated.

Right to and assignment of counsel, see N.D.R.Crim.P., Rule 44.

Notes to Decisions

Assistance of Counsel.

Generally, ineffective assistance of counsel claims are most effectively presented in proceedings for post-conviction relief pursuant to chapter 29-32.1. However, when defective assistance of counsel is urged on direct appeal, supreme court will review the entire record, and if it cannot readily determine that assistance of counsel was plainly defective and there exist no other grounds for reversal, then defendant can later pursue his claim at a post-conviction proceeding where an adequate record can be developed. State v. Sayler, 443 N.W.2d 915, 1989 N.D. LEXIS 148 (N.D. 1989).

Attendance of Witnesses.

If witness is necessary to proper presentation of defendant’s case, defendant should see that witness is called; failure of state to call witness whose name was endorsed on amended information was not error since defense could have subpoenaed that witness. State v. Henderson, 156 N.W.2d 700, 1968 N.D. LEXIS 112 (N.D. 1968).

Confrontation of Witnesses.

A hearing on a motion to suppress evidence is a critical stage of the prosecution and the Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees an accused the right to confront witnesses against him at such hearing. State v. Mondo, 325 N.W.2d 201, 1982 N.D. LEXIS 343 (N.D. 1982), overruled in part, State v. Woinarowicz, 2006 ND 179, 720 N.W.2d 635, 2006 N.D. LEXIS 181 (N.D. 2006).

Although responses given by nine-year-old victim of sexual offense did not specifically answer the questions asked by the defendant, those responses did not constitute a denial of the defendant’s right to confront the witness; rather, those responses raised a credibility issue to be resolved by the trier of fact. State v. Jenkins, 326 N.W.2d 67, 1982 N.D. LEXIS 331 (N.D. 1982).

Exclusion of the forensic analyst’s testimony based on defendant’s acquiescence to admission of the chemical test results was contrary to N.D.C.C. § 39-20-07 and the refusal to allow the analyst to testify was unreasonable and warranted a new trial. While defendant admitted to drinking and smelled of alcohol, there was little evidence indicating that he was under the influence of intoxicating liquor and thus, exclusion of the testimony was not harmless. State v. Schwab, 2008 ND 94, 748 N.W.2d 696, 2008 N.D. LEXIS 91 (N.D. 2008).

Jury Trial.

Defendant was denied his right to a jury trial where he was tried by court and record did not reveal that defendant expressly and intelligently consented to waiver of his right to a jury trial; when a written waiver is not submitted, a trial court could eliminate doubt and safeguard rights of a defendant by obtaining an express statement of defendant specifically indicating on record that a jury trial is or is not waived. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

Place of Trial.

The right of criminal defendant to a trial in the county of the alleged offense, as stated in subsection 5, is subject to the mandatory change of venue on the filing of an affidavit of prejudice against a county justice. State ex rel. Herreid v. Walter, 130 N.W.2d 313, 1964 N.D. LEXIS 133 (N.D. 1964).

Right to Counsel.

Where defendant appeared in district court and stated that he knew he was entitled to counsel, that he did not want to be represented, that he desired to plead guilty, and there was no showing that he was influenced by any threats or promises, he was not deprived of his right to counsel. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

The defendant’s written request that the court either move his trial date forward to accommodate his attorney’s absence, appoint another attorney, or allow him to represent himself was actually a request for hybrid representation, or the ability to participate as co-counsel with his attorney. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

The defendant’s written request that the court either move his trial date forward to accommodate his attorney’s absence, appoint another attorney, or allow him to represent himself was not an unequivocal waiver of his right to counsel and the trial court did not commit error in denying his right to self-representation as any ambiguity had to be resolved against waiver. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

Speedy Trial.

Where state filed warrant of arrest as detainer against accused imprisoned in neighboring state prison and made reasonable efforts in good faith to extradite him for trial, accused’s petition to withdraw the detainer because he had not been granted speedy trial was dismissed, since delay was caused by inaction of neighboring state officials and not bad faith or lack of diligence by North Dakota officials. Morris v. McGee, 180 N.W.2d 659, 1970 N.D. LEXIS 125 (N.D. 1970).

A plea of guilty constitutes a waiver of the right to a speedy trial. State v. Wunderlich, 338 N.W.2d 658, 1983 N.D. LEXIS 351 (N.D. 1983).

Conclusory allegations of an impaired defense from a delayed trial do not prove prejudice. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Actual prejudice to defendant from delay was not apparent where he was in jail for separate convictions much of the time before his trial; almost seven months of his incarceration was unrelated to the case at bar, and “oppressive pretrial incarceration” did not occur. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Defendant was not denied his right to a speedy trial where his attempts to invoke Interstate Agreement on Detainers did not constitute a proper request for a speedy trial, much of the delay was attributable to motions filed by the defendant, and the defendant did not demonstrate that his ability to defend against charges was impaired by the delay. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Defendant’s right to a speedy trial was not violated where he failed to inform the district court of his change of address when he was transported from another county, failed to object when hearings were rescheduled, failed to request immediate disposition of the charges during his preliminary hearings, and failed to follow the procedural requirements of the Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33. State v. Johnson, 1999 ND 33, 590 N.W.2d 192, 1999 N.D. LEXIS 35 (N.D. 1999).

Defendant was not denied his right to speedy trial where, although eight months passed between the date of defendant’s arrest and the commencement of his trial, considering the appointments of counsel and various intervening motions that were filed, defendant’s actions reasonably attributed to the delay and there was no actual prejudice to him by the delay. State v. Ochoa, 2004 ND 43, 675 N.W.2d 161, 2004 N.D. LEXIS 57 (N.D. 2004).

Although the defendant’s trial was delayed for about two years, there was no evidence that the State purposefully delayed the trial, and defendant moved to suppress evidence from the searches about 400 days after pre-trial motions were due; defendant did not satisfy the appellate court that his speedy trial rights were violated by the delay in bringing his case to trial. State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83, 676 N.W.2d 98, 2004 N.D. LEXIS 61 (N.D. 2004).

Fifteen-month delay between defendant’s arrest and his trial did not violate his right to a speedy trial under the Sixth Amendment and N.D.C.C. § 29-01-06(5) because the primary reason for the delay was defendant’s dissatisfaction with his attorneys, which resulted in multiple changes of court-appointed counsel and delays. Defendant also sought multiple continuances. State v. Fischer, 2008 ND 32, 744 N.W.2d 760, 2008 N.D. LEXIS 21 (N.D. 2008).

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Defendant was not deprived of his speedy trial rights under the United States or North Dakota Constitutions because the reason for the delay was precipitated by defendant's act of effectively firing his first counsel; the extent of the delay involved reasonable scheduling considerations for an anticipated five-day jury trial and the designation of a second court-appointed counsel. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

Defendant’s right to a speedy trial was not violated because the eight month delay did not trigger the presumption of prejudice, the reason for delay was the unavailability of a witness, and the district court found there to be no evidence of bad faith on the part of the State in the underlying motion to dismiss without prejudice. State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

Taking Testimony Outside Courtroom.

No substantial right of defendant was affected where the testimony of a witness was taken at a hospital in the county seat where the trial was being conducted, before the court and jury and in the presence of defendant and his counsel. State v. Tracy, 34 N.D. 498, 158 N.W. 1069, 1916 N.D. LEXIS 47 (N.D. 1916).

Collateral References.

Duty to advise accused of right to assistance of counsel, 3 A.L.R.2d 1003.

Absence of accused during making of tests or experiments as affecting admissibility of testimony concerning them, 17 A.L.R.2d 1078.

Fingerprint, palm print, or bare footprint evidence as violating privilege of accused of confront witnesses, 28 A.L.R.2d 1115, 1136.

Revocation, without notice and hearing, of probation or suspension of sentence, parole, or conditional pardon as a deprivation of right to counsel, 29 A.L.R.2d 1074.

Right of defendant to counsel upon examination under statute providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434, 444.

Claim of privilege by a witness as justifying the use in criminal case of his testimony given on former trial or preliminary examination, 45 A.L.R.2d 1354.

Right to presence of counsel at polling of jury, 49 A.L.R.2d 619.

Waiver or loss of accused’s right to speedy trial, 57 A.L.R.2d 302, 339.

Criminal trial of deaf, mute, or blind person, 80 A.L.R.2d 1084.

Effect of, and remedy for, infringement of right of accused to communicate with his attorney, 5 A.L.R.3d 1360.

Suppression of evidence by prosecution in criminal case as vitiating conviction, 34 A.L.R.3d 16.

Right of accused to have evidence or court proceedings interpreted, 36 A.L.R.3d 276.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955.

Validity of jury selection as affected by accused’s absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429.

Application of speedy trial statute to dismissal or other termination of prior indictment or information and bringing of new indictment or information, 39 A.L.R.4th 899.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Exclusion of public from state criminal trial in order to prevent disturbance by spectators or defendant, 55 A.L.R.4th 1170.

Relief available for violation of right to counsel at sentencing in state criminal trial, 65 A.L.R.4th 183.

Negligence, inattention, or professional incompetence of attorney in handling client’s affairs in criminal matters as ground for disciplinary action — modern cases, 69 A.L.R.4th 410.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time, 70 A.L.R.4th 632.

Right of party to have attorney or physician present during physical or mental examination at instance of opposing party, 84 A.L.R.4th 558.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality,80 A.L.R.5th 469.

Determination of Request for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer — Issues of Proof, Consideration of Alternatives, and Scope of Closure, 32 A.L.R.6th 171.

Basis for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer, 33 A.L.R.6th 1.

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

29-01-06.1. Rights of defendant — Exception.

When the defendant is charged with a crime under a multiple count indictment or information as allowed by the North Dakota Rules of Criminal Procedure, the defendant may be tried on all counts in any one of the counties in which one of the offenses was committed.

Source:

S.L. 1967, ch. 256, § 1; 1979, ch. 187, § 57.

29-01-06.2. Summoned person to report to sheriff.

Whenever a person charged with a felony is not arrested but is summoned to appear in court, that person shall submit to the sheriff for identification procedures at the time of the first court appearance.

Source:

S.L. 1983, ch. 366, § 1.

29-01-07. Only once prosecuted.

No person can be twice put in jeopardy for the same offense, nor can any person be subjected to a second prosecution for a public offense for which that person has once been prosecuted and convicted, or acquitted, or put in jeopardy, except as is provided by law for new trials.

Source:

C. Crim. P. 1877, § 12; R.C. 1895, § 7750; R.C. 1899, § 7750; R.C. 1905, § 9558; C.L. 1913, § 10394; R.C. 1943, § 29-0107.

Cross-References.

Declaration of rights, see N.D. Const., Art. I.

Notes to Decisions

Appeal by Defendant.

Double jeopardy protection did not prohibit retrial of a defendant where he appealed and his conviction was reversed on appeal because he had been denied his right to a jury trial. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

Discharge of Jury

Double jeopardy barred further prosecution of defendant on a gross sexual imposition charge because jeopardy had attached when the jury was empaneled and sworn and then was discharged from the case by the trial court on its own motion. Discharging the jury was not manifestly necessary even though it was done for the benefit of defendant, who had requested that an attorney be appointed to represent him. State v. Voigt, 2007 ND 100, 734 N.W.2d 787, 2007 N.D. LEXIS 96 (N.D. 2007).

Double Jeopardy Not Found.
—In General.

A non-criminal charge of exhibition driving and a later criminal charge of driving under the influence does not place a defendant in double jeopardy. City of Fargo v. Hector, 534 N.W.2d 821, 1995 N.D. LEXIS 125 (N.D. 1995).

Juvenile’s double jeopardy rights, U.S. Const. amend. V, N.D. Const. art. I, § 12, N.D.C.C. § 29-01-07, were not violated by the juvenile court’s adjudication of delinquency premised on evidence of same conduct which formed the basis of the sanction imposed by the juvenile drug court. Ubben v. O.F. (In re O.F.), 2009 ND 177, 773 N.W.2d 206, 2009 N.D. LEXIS 190 (N.D. 2009).

Because the district court did not err in finding double jeopardy to be inapplicable, the district court did not err by denying defendant’s requested jury instruction and special verdict form seeking a jury finding on double jeopardy. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

—Civil Forfeiture Dismissed.

Where a civil forfeiture proceeding against defendant’s automobile was dismissed because it had not been instituted promptly, and there was no final administrative or judicial action against the property, even if the civil forfeiture proceeding was characterized as punitive rather than remedial, jeopardy did not attach to this civil forfeiture proceeding because it was dismissed before final action was taken against the property. State v. O'Rourke, 544 N.W.2d 384, 1996 N.D. LEXIS 49 (N.D. 1996).

—Mistrial

Double jeopardy did not bar defendant’s second jury trial where first jury failed to reach a unanimous decision and a mistrial was declared after two and a half hours of deliberation; fact that prosecution learned of a particular item of evidence that had confused the jury at the first trial and sought to address the deficiency in the evidence at the second trial did not mandate double jeopardy bar as this was not the type of benefit to the State that would implicate the double jeopardy clause and, although the time of the deliberations was short, given the depth of the jury’s division and the resultant threat it posed to an impartial verdict, the trial judge acted within the confines of his discretion, manifest necessity, and the ends of public justice in declaring a mistrial. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Defendant’s retrial was not barred by double jeopardy because her motion for mistrial precluded double jeopardy from applying; defendant had not established the city’s conduct in asking a general question of a police officer goaded or provoked her into moving for the mistrial because the police officer was the city’s first witness early in the trial, and it had no reason to provoke a mistrial at that early stage. City of W. Fargo v. Le Ekstrom, 2020 ND 37, 938 N.W.2d 915, 2020 N.D. LEXIS 35 (N.D. 2020); 2020 N.D. LEXIS 3 (February 12, 2020).

Double jeopardy did not bar retrial following defendant’s first and second trials because the jury’s guilty verdict in the first trial was set aside at defendant’s insistence after the discovery of juror misconduct, and thus, the State was entitled to retry the case; double jeopardy did not prohibit a retrial of defendant following the second trial because the district court granted his motion for mistrial after the jury communicated it could not reach a unanimous verdict. State v. Borland, 2021 ND 52, 956 N.W.2d 412, 2021 N.D. LEXIS 47 (N.D. 2021).

—Suspension of Driver’s License.

Under the United States Constitution and under the North Dakota Constitution, a criminal prosecution for DUI does not constitute double jeopardy even though the defendant’s driver’s license previously had been suspended in an administrative hearing for the same DUI offense. State v. Jacobson, 545 N.W.2d 152, 1996 N.D. LEXIS 63 (N.D. 1996).

Fifth Amendment Compared.

Framers of North Dakota constitution who created section dealing with double jeopardy and members of legislature who drafted this section and its predecessor did not intend a result different than that mandated by the fifth amendment to the United States Constitution.State v. Allesi, 216 N.W.2d 805, 1974 N.D. LEXIS 235 (N.D. 1974).

Mistrial Declared.

Where judge discovered after prosecution’s evidence was presented that four defendants had not been arraigned, and defendants refused to waive arraignment or enter plea, judge did not abuse his discretion in declaring mistrial and subsequently arraigning and trying defendants, and second trial did not constitute double jeopardy. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Plea of Guilty and Judgment of Conviction.

Defendant was put in jeopardy by his plea of guilty and the judgment of conviction rendered upon such plea and the fact that the proceedings were erroneous and that the judgment rendered was voidable did not destroy its effectiveness as a bar to further prosecution. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Preliminary Appearances.

Fact that defendant made a preliminary appearance before one judge in one county and a second preliminary appearance before another judge in another county did not violate his right against twice being placed in jeopardy because jeopardy does not attach in criminal proceedings until the defendant’s trial commences, which in a jury trial occurs when the jury is empaneled and sworn, and in a nonjury trial when the court begins to hear the evidence. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Waiver.

Where accused moved for advised verdict of acquittal to which he was not entitled and trial court, instead, erroneously entered order of dismissal to which no objection was made by defendant, his right to assert the defense of double jeopardy was waived. State v. Allesi, 216 N.W.2d 805, 1974 N.D. LEXIS 235 (N.D. 1974).

Collateral References.

Conviction or acquittal in criminal prosecution as bar to action for seizure, condemnation, or forfeiture of property, 27 A.L.R.2d 1137.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.

Discharge of accused for holding him excessive time without trial as bar to subsequent prosecution for same offense, 50 A.L.R.2d 943.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

What constitutes accused’s consent to court’s withdrawal of case from jury so as to constitute waiver of plea of former jeopardy, 63 A.L.R.2d 782.

Conviction or acquittal in court having no jurisdiction to try offense as putting accused in jeopardy, 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy, 6 A.L.R.3d 905.

Increased punishment on new trial for same offense, 12 A.L.R.3d 978.

Single or separate larceny predicated upon stealing property from different owners at same time, 37 A.L.R.3d 1407.

Nonjury trial, when jeopardy attaches in, 49 A.L.R.3d 1039.

Separation of jury in criminal case before introduction of evidence—modern cases, 72 A.L.R.3d 100.

Separation of jury in criminal case during trial—modern cases, 72 A.L.R.3d 131.

Separation of jury in criminal case after submission of cause—modern cases, 72 A.L.R.3d 248.

Acquittal as bar to a prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.

Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial — state cases, 40 A.L.R.4th 741.

Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Law Reviews.

Statutory Bars to Dual Sovereign Prosecutions: The Minnesota and North Dakota Approaches Compared, 72 N.D. L. Rev. 583 (1996).

29-01-08. Extent of restraint permissible.

No person charged with a public offense can be subjected before conviction to any more restraint than is necessary for the person’s detention to answer the charge.

Source:

C. Crim. P. 1877, § 13; R.C. 1895, § 7751; R.C. 1899, § 7751; R.C. 1905, § 9559; C.L. 1913, § 10395; R.C. 1943, § 29-0108.

29-01-09. How conviction can be had.

No person can be convicted of a crime or public offense except:

  1. By the verdict of a jury accepted and recorded by the court;
  2. Upon a plea of guilty;
  3. Upon a judgment against that person, that person’s motion to quash having been denied;
  4. Upon a judgment of a municipal court, or such other court as is or may be created by law for cities in a case in which such judgment may be lawfully given without the intervention of a jury; or
  5. By the judgment of a court, a jury having been waived.

Source:

C. Crim. P. 1877, § 14; R.C. 1895, § 7752; R.C. 1899, § 7752; R.C. 1905, § 9560; C.L. 1913, § 10396; R.C. 1943, § 29-0109; S.L. 1981, ch. 320, § 67; 1991, ch. 326, § 106.

29-01-10. Where district courts held.

Each district court may be held, for the trial of a criminal action, in an organized county.

Source:

C. Crim. P. 1877, § 16; R.C. 1895, § 7754; R.C. 1899, § 7754; R.C. 1905, § 9562; C.L. 1913, § 10398; R.C. 1943, § 29-0110.

29-01-11. District court always open — Exception — Question of fact — Terms. [Repealed]

Superseded by N.D.R.Crim.P., Rule 56.

29-01-12. Decision of district court reviewable.

The final decision of the district court in a criminal action is reviewable and determinable by the supreme court according to law on an appeal bringing up for review the record and proceedings therein.

Source:

C. Crim. P. 1877, § 18; R.C. 1895, § 7757; R.C. 1899, § 7757; R.C. 1905, § 9565; C.L. 1913, § 10401; R.C. 1943, § 29-0112.

29-01-13. Definitions.

As used in this title, unless the context or subject matter otherwise clearly requires:

  1. Superseded by N.D.R.Crim.P., Rule 3.
  2. An “indictment” is an accusation in writing presented by a grand jury to a competent court charging a person with a crime or public offense.
  3. A “presentment” is an informal statement in writing by a grand jury representing to the court that a public offense has been committed which is triable in the county or subdivision, and that there is reasonable ground to believe that a particular individual named or described has committed it.
  4. An “information” is an accusation in writing, in form and substance like an indictment for the same offense, charging a person with a crime or public offense, signed and verified by some person and presented to the district court and filed in the office of the clerk of said court.
  5. A “magistrate” is an officer authorized by law to issue a warrant for the arrest of a person charged with a crime or public offense.
  6. The term “writing” includes printing and typewriting.
  7. The term “oath” includes an affirmation.
  8. The term “signature” includes a mark, when the person cannot write, the person’s name being written near it and the mark being witnessed by a person who writes the witness’s own name as a witness, except that if the paper is an affidavit or deposition, or a paper issued before a judicial officer, the attestation of the officer is sufficient.
  9. The term “county” includes an organized county, or an organized county and such unorganized counties or other territory or parts of this state as may be attached by law to such organized county for judicial purposes.

Source:

C. Crim. P. 1877, §§ 93, 185, 186, 605 to 607; R.C. 1895, §§ 7881 to 7884, 8011, 8506 to 8508, 8511; R.C. 1899, §§ 7881 to 7884, 8011, 8506 to 8508, 8511; R.C. 1905, §§ 9689 to 9692, 9820, 10316 to 10318, 10321; C.L. 1913, §§ 10525 to 10528, 10657, 11175 to 11177, 11180; R.C. 1943, § 29-0113.

Cross-References.

“Verdict” defined, see § 1-01-41.

Notes to Decisions

Information.

A criminal complaint issued by the county court of increased jurisdiction, meeting the requirements of N.D.C.C. § 29-05-01, and charging the defendant with drunken driving, was sufficient as an information to give the court jurisdiction. State v. Buehler, 125 N.W.2d 155, 1963 N.D. LEXIS 130 (N.D. 1963).

Information used to charge defendant with an ordinance violation was in sufficient form and advised defendant of the ordinance violated, and, thus, met the requirements of N.D.R.Crim.P. 7(c)(1) for making a defendant aware of the nature of the offense that defendant committed. Since that criminal procedural rule applied to determine the sufficiency of the charging instrument filed against the defendant, criminal procedural statutes such as N.D.C.C. § 11-09.1-13 and N.D.C.C. § 29-01-13 that conflicted with the criminal procedural rule did not apply. State v. Brown, 2009 ND 150, 771 N.W.2d 267, 2009 N.D. LEXIS 159 (N.D. 2009).

29-01-14. Who are magistrates.

The following officers are magistrates:

  1. The judges of the supreme court, with authority to act as such throughout the state.
  2. The judges of the district courts, with authority to act as such throughout the judicial districts for which they respectively are elected.
  3. As limited by law directing the place of exercising their jurisdiction and authority, magistrates appointed by the presiding judge of a judicial district, municipal judges, and small claims court referees who are licensed to practice law and authorized by the presiding judge of the judicial district in case of an emergency, each with authority to act as magistrate throughout the county or the city for which the magistrate is elected or appointed.

Source:

C. Crim. P. 1877, § 94; R.C. 1895, § 7885; R.C. 1899, § 7885; R.C. 1905, § 9693; C.L. 1913, § 10529; R.C. 1943, § 29-0114; S.L. 1959, ch. 268, § 6; 1973, ch. 251, § 1; 1973, ch. 301, § 14; 1981, ch. 320, § 68; 1991, ch. 326, § 107.

Cross-References.

The complaint, N.D.R.Crim.P., Rule 3.

29-01-15. Jurisdiction of municipal judges and small claims court referees.

Any municipal judge may:

  1. Act as committing magistrate; provided, that this subsection does not apply to municipal judges who are not attorneys currently licensed under chapter 27-11.
  2. Hear, try, and determine misdemeanors and infractions when jurisdiction has been conferred by the Constitution of North Dakota and this and other laws.
  3. Adjudge and impose the punishment prescribed by law, upon conviction, in all cases within the municipal judge’s jurisdiction to hear, try, and determine.
  4. Grant temporary protection orders under the particular circumstances and for the limited duration set forth in section 14-07.1-08.

A small claims court referee authorized pursuant to subsection 3 of section 29-01-14 may act as a committing magistrate. A magistrate appointed by the presiding judge of the judicial district has the authority to act to the extent allowed by rules promulgated by the supreme court.

Source:

C. Crim. P. 1877, § 19; R.C. 1895, § 7758; R.C. 1899, § 7758; R.C. 1905, § 9566; C.L. 1913, § 10402; R.C. 1943, § 29-0115; S.L. 1973, ch. 251, § 2; 1975, ch. 106, § 321; 1979, ch. 193, § 9; 1981, ch. 320, § 69; 1991, ch. 326, § 108.

Notes to Decisions

Protection Orders.

Municipal court judge was immune from civil liability with regard to issuance of a protection order where order was issued in accordance with jurisdictional requirements of N.D.C.C. § 14-07.1-08. Patten v. Beauchamp, 599 F. Supp. 288, 1984 U.S. Dist. LEXIS 21262 (D.N.D. 1984).

Small Claims Court Referee Designated As Magistrate.

Small claims court referee designated magistrate lacks jurisdiction to adjudicate class B misdemeanors; jurisdiction under this section is limited to acting as a committing magistrate. State v. Sadowski, 331 N.W.2d 274, 1983 N.D. LEXIS 254 (N.D. 1983).

Collateral References.

Criminal jurisdiction of municipal or other local court, 102 A.L.R.5th 525.

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

29-01-16. When misdemeanor or infraction may be compromised.

When a defendant is held to answer on a charge constituting a misdemeanor or infraction, for which a person injured by the act constituting the offense has a remedy by a civil action, the offense may be compromised as provided in section 29-01-17, except:

  1. If the offense was committed by or upon a judge of any court in this state, or in any city in this state, or a peace officer, while in the execution of the duties of the person’s office;
  2. If the offense was committed with an intent to commit a felony; or
  3. If the offense involves a crime of domestic violence as defined in section 14-07.1-01 or is a violation of section 12.1-20-05, 12.1-20-07, 12.1-20-12.1, or 12.1-20-12.2.

Source:

C. Crim. P. 1877, § 524; R.C. 1895, § 8409; R.C. 1899, § 8409; R.C. 1905, § 10218; C.L. 1913, § 11074; R.C. 1943, § 29-0116; S.L. 1975, ch. 106, § 322; 2003, ch. 273, § 1.

Notes to Decisions

Proposed Compromise Permissible.

Attorney’s proposed compromise was permissible, under N.D.C.C. §§ 29-01-16 and 29-01-17, to the extent that it proposed payment for the other party’s medical expenses and agreed not to file a defamation action for the statements to police and the news media, if the other party agreed to dismiss the vicious animal at large complaint. State v. Mertz (In re Mertz), 2006 ND 85, 712 N.W.2d 849, 2006 N.D. LEXIS 89 (N.D. 2006).

29-01-17. Stay of proceedings upon compromise.

If a party injured appears before the court in which a trial for the commission of a public offense is to be had, at any time before the trial, and acknowledges that the party injured has received satisfaction for the injury, the court, on payment of the costs incurred, may order all proceedings to be stayed upon the prosecution and the defendant to be discharged therefrom, but in such a case the reasons for the order must be set forth therein and entered on the minutes.

Source:

C. Crim. P. 1877, § 525; R.C. 1895, § 8410; R.C. 1899, § 8410; R.C. 1905, § 10219; C.L. 1913, § 11075; R.C. 1943, § 29-0117.

Notes to Decisions

Proposed Compromise Permissible.

Attorney’s proposed compromise was permissible, under N.D.C.C. §§ 29-01-16 and 29-01-17, to the extent that it proposed payment for the other party’s medical expenses and agreed not to file a defamation action for the statements to police and the news media, if the other party agreed to dismiss the vicious animal at large complaint. State v. Mertz (In re Mertz), 2006 ND 85, 712 N.W.2d 849, 2006 N.D. LEXIS 89 (N.D. 2006).

29-01-18. Order to stay is a bar.

The order authorized by section 29-01-17 is a bar to another prosecution for the same offense.

Source:

C. Crim. P. 1877, § 526; R.C. 1895, § 8411; R.C. 1899, § 8411; R.C. 1905, § 10220; C.L.1913, § 11076; R.C. 1943, § 29-0118.

29-01-19. Compromise limited.

A public offense may not be compromised, nor may any proceeding for the prosecution or punishment of a public offense, upon a compromise, be stayed except as is provided in sections 29-01-16 and 29-01-17.

Source:

C. Crim. P. 1877, § 527; R.C. 1895, § 8412; R.C. 1899, § 8412; R.C. 1905, § 10221; C.L. 1913, § 11077; R.C. 1943, § 29-0119; 2003, ch. 273, § 2; 2021, ch. 251, § 1, effective August 1, 2021.

Notes to Decisions

No Compromise.

State did not consent to a compromise or feel compromising was the appropriate method to resolve the matter because defendant's placement of the rock on a section line violated state law, and his actions led to an accident which damaged a state vehicle; because pursuing a criminal prosecution of a violation of the statute is within the bounds of the law, it was within the prosecutor's broad discretion to enforce the statute and criminally prosecute defendant. State v. Bear, 2015 ND 36, 859 N.W.2d 595, 2015 N.D. LEXIS 30 (N.D. 2015).

29-01-20. Stolen property to be held by peace officer.

  1. Except as provided in subsection 2, whenever property alleged to have been stolen or embezzled comes into the custody of a peace officer, the peace officer shall hold it subject to the order of the magistrate authorized by section 29-01-21 to direct the disposal thereof.
  2. Subsection 1 does not apply to:
    1. Consumer goods, as defined in section 41-09-02; and
    2. Goods covered by a certificate of title if proof of certificate of title is presented to the peace officer.

Source:

C. Crim. P. 1877, § 538; R.C. 1895, § 8424; R.C. 1899, § 8424; R.C. 1905, § 10233; C.L. 1913, § 11089; R.C. 1943, § 29-0120; 2015, ch. 114, § 4, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 4 of chapter 114, S.L. 2015 became effective August 1, 2015.

29-01-21. Magistrate to give order for delivery.

On satisfactory proof of the title of the owner of the property, the magistrate before whom the complaint is laid, or who examines the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the owner on the owner’s paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property.

Source:

C. Crim. P. 1877, § 539; R.C. 1895, § 8425; R.C. 1899, § 8425; R.C. 1905, § 10234; C.L. 1913, § 11090; R.C. 1943, § 29-0121.

29-01-22. Delivery of stolen property by magistrate.

If property stolen or embezzled comes into the custody of a magistrate, it must be delivered to the owner on satisfactory proof of the owner’s title and on the owner’s paying the necessary expenses incurred in its preservation, to be certified by the magistrate.

Source:

C. Crim. P. 1877, § 540; R.C. 1895, § 8426; R.C. 1899, § 8426; R.C. 1905, § 10235; C.L. 1913, § 11091; R.C. 1943, § 29-0122.

29-01-23. Court may order delivery of stolen property.

If property stolen or embezzled has not been delivered to the owner, the court before which a trial is had for stealing or embezzling it, on proof of the owner’s title, may order it to be restored to the owner.

Source:

C. Crim. P. 1877, § 541; R.C. 1895, § 8427; R.C. 1899, § 8427; R.C. 1905, § 10236; C.L. 1913, § 11092; R.C. 1943, § 29-0123.

29-01-24. Unclaimed stolen property — Delivery to county treasurer.

If the property stolen or embezzled is not claimed by the owner within six months from the conviction of a person for stealing or embezzling it, the magistrate or officer having it in custody, on the payment of the necessary expenses incurred in its preservation, shall deliver it to the county treasurer by whom, if it is money, it must be paid into the county treasury, or if it is not money, it must be sold and the proceeds paid into such treasury.

Source:

C. Crim. P. 1877, § 542; R.C. 1895, § 8428; R.C. 1899, § 8428; R.C. 1905, § 10237; C.L. 1913, § 11093; R.C. 1943, § 29-0124.

29-01-25. Receipt to accused and clerk or magistrate.

When money or other property is taken from a defendant arrested upon a charge of a public offense, the officer taking it at the time shall give duplicate receipts therefor, specifying particularly the amount of the money, or the kind of property taken, one of which receipts the officer shall deliver to the defendant, and the other of which the officer shall file at once with the clerk of the court to which the complaint and other papers in the case by law are required to be sent. When such property is taken by a police officer of any incorporated city, the officer shall deliver one of the receipts to the defendant and one, with the property, at once to the clerk or other person in charge of the police office in such city, or, if there is no such clerk or other person, then to the magistrate before whom such defendant may be taken for examination or trial.

Source:

C. Crim. P. 1877, § 543; R.C. 1895, § 8429; R.C. 1899, § 8429; R.C. 1905, § 10238; C.L. 1913, § 11094; R.C. 1943, § 29-0125.

29-01-26. Duty of clerk or magistrate.

The clerk, magistrate, or other person to whom property is delivered, as provided in section 29-01-25, shall record every amount of money and a description of every article of property taken from each person arrested, attach a number to every amount of money and every article of property, and make a corresponding entry thereof. Sufficient compliance with this section is met if the entries are made in the docket of the magistrate after the receipt and property are delivered to a magistrate, as provided in section 29-01-25.

Source:

S.L. 1895, § 8430; R.C. 1899, § 8430; R.C. 1905, § 10239; C.L. 1913, § 11095; R.C. 1943, § 29-0126; S.L. 1985, ch. 337, § 17.

29-01-27. Indigent defendant — Attorney appointed — Compensation — Limitation. [Repealed]

Repealed by S.L. 1967, ch. 259, § 3.

29-01-28. Spectators excluded from trial of minors. [Repealed]

Repealed by S.L. 1995, ch. 124, § 21.

29-01-29. Rule of construction of title.

The rule of the common law that penal statutes are to be strictly construed has no application to this title. This title establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to promoting its objects and in furtherance of justice.

Source:

C. Crim. P. 1877, § 602; R.C. 1895, § 8503; R.C. 1899, § 8503; R.C. 1905, § 10313; C.L. 1913, § 11172; R.C. 1943, § 29-0129.

Notes to Decisions

Construction.

This section and this title apply primarily to appeals by an accused and should be liberally construed to the end that an accused receives justice; provisions of this title should be strictly construed against the state. State v. Mees, 196 N.W.2d 399, 1972 N.D. LEXIS 172 (N.D. 1972).

Liberal Interpretation.

Penal statutes are to be given a liberal interpretation with a view of promoting the object of the statute, and in furtherance of justice. Timm v. State, 110 N.W.2d 359, 1961 N.D. LEXIS 86 (N.D. 1961).

29-01-30. To what this title applies. [Repealed]

Superseded by N.D.R.Crim.P., Rule 1.

29-01-31. Common law prevails when title silent. [Repealed]

Superseded by N.D.R.Crim.P., Rule 1.

29-01-32. Defendant required to disclose information to prosecuting attorney. [Repealed]

Repealed by S.L. 1997, ch. 51, § 40.

29-01-33. Change of place of criminal proceedings — Jury. [Repealed]

Superseded by N.D.R.Crim.P., Rules 18, 21.

CHAPTER 29-02 Prevention of Public Offenses

29-02-01. Lawful resistance to commission of offense, by whom made.

Lawful resistance to the commission of a public offense may be made:

  1. By the party about to be injured; or
  2. By other parties.

Source:

C. Crim. P. 1877, § 20; R.C. 1895, § 7759; R.C. 1899, § 7759; R.C. 1905, § 9567; C.L. 1913, § 10403; R.C. 1943, § 29-0201.

Collateral References.

Extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.

Duty to retreat from business premises as condition of self-defense, 41 A.L.R.3d 584.

Burden of proof for self-defense in homicide case, 43 A.L.R.3d 221.

Use of set gun, trap, or similar device on defendant’s own property, 47 A.L.R.3d 646.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.

29-02-02. Resistance by party about to be injured.

Resistance sufficient to prevent a public offense may be made by a party about to be injured:

  1. To prevent an offense against the party’s person or the party’s family or some member thereof; or
  2. To prevent an illegal attempt by force to take or injure property in the party’s lawful possession.

Source:

C. Crim. P. 1877, § 21; R.C. 1895, § 7760; R.C. 1899, § 7760; R.C. 1905, § 9568; C.L. 1913, § 10404; R.C. 1943, § 29-0202.

29-02-03. Third person may resist offense.

Any person, in aid or defense of a person about to be injured by a public offense, may make resistance sufficient to prevent the offense.

Source:

C. Crim. P. 1877, § 22; R.C. 1895, § 7761; R.C. 1899, § 7761; R.C. 1905, § 9569; C.L. 1913, § 10405; R.C. 1943, § 29-0203.

Collateral References.

Authority of private person, in making felony arrest, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

29-02-04. Public offense may be prevented by officers.

Public offenses may be prevented by the intervention of officers of justice:

  1. By requiring security to keep the peace;
  2. By providing police in cities and by requiring their attendance in exposed places; and
  3. By suppressing riots.

Source:

C. Crim. P. 1877, § 23; R.C. 1895, § 7762; R.C. 1899, § 7762; R.C. 1905, § 9570; C.L. 1913, § 10406; R.C. 1943, § 29-0204.

29-02-05. Persons aiding officers justified.

Whenever officers of justice are authorized to act in the prevention of public offenses, other persons who by their command act in their aid are justified in so doing.

Source:

C. Crim. P. 1877, § 24; R.C. 1895, § 7763; R.C. 1899, § 7763; R.C. 1905, § 9571; C.L. 1913, § 10407; R.C. 1943, § 29-0205.

29-02-06. Complaint for threatening, before whom laid.

A complaint may be laid before any magistrate mentioned in section 29-01-14, authorized by law to act within the county, that a person has threatened to commit an offense against the person or property of another.

Source:

C. Crim. P. 1877, § 25; R.C. 1895, § 7764; R.C. 1899, § 7764; R.C. 1905, § 9572; C.L. 1913, § 10408; R.C. 1943, § 29-0206.

29-02-07. Complaint as to threatened offense.

A complaint within the meaning of section 29-02-06 is a statement in writing, made to a magistrate, that a person has threatened to commit an offense against the person or property of another, and subscribed and sworn to by the complainant.

Source:

R.C. 1895, § 7765; R.C. 1899, § 7765; R.C. 1905, § 9573; C.L. 1913, § 10409; R.C. 1943, § 29-0207.

29-02-08. Magistrate must issue warrant.

If it appears from a complaint to a magistrate that there is just reason to fear the commission of an offense threatened by the person complained of, the magistrate shall issue a warrant directed generally to the sheriff of the county, marshal, or policeman of the city, reciting the substance of the complaint and commanding the officer forthwith to arrest the person complained of and to bring that person before the magistrate.

Source:

C. Crim. P. 1877, § 26; R.C. 1895, § 7766; R.C. 1899, § 7766; R.C. 1905, § 9574; C.L. 1913, § 10410; R.C. 1943, § 29-0208; S.L. 1985, ch. 151, § 23.

29-02-09. Procedure when charge controverted.

If a person complained of is brought before a magistrate upon the charge that that person threatened to commit an offense against another, the magistrate, if the charge is controverted, shall take testimony in relation thereto. The evidence on demand of the defendant must be reduced to writing and subscribed by the witnesses.

Source:

C. Crim. P. 1877, 27; R.C. 1895, § 7767; R.C. 1899, § 7767; R.C. 1905, § 9575; C.L. 1913, § 10411; R.C. 1943, § 29-0209.

29-02-10. When accused must be discharged.

If it appears that there is no just reason to fear the commission of an offense alleged to have been threatened, the person complained of must be discharged.

Source:

C. Crim. P. 1877, § 28; R.C. 1895, § 7768; R.C. 1899, § 7768; R.C. 1905, § 9576; C.L. 1913, § 10412; R.C. 1943, § 29-0210.

29-02-11. When accused must give undertaking.

If there is just reason to fear the commission of an offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding one thousand dollars, as the magistrate may direct, with one or more sufficient sureties to abide the order of the next district court of the county, and in the meantime to keep the peace toward the people of this state, and particularly toward the complainant.

Source:

C. Crim. P. 1877, § 29; R.C. 1895, § 7769; R.C. 1899, § 7769; R.C. 1905, § 9577; C.L. 1913, § 10413; R.C. 1943, § 29-0211.

Cross-References.

Application of Rules of Criminal Procedure to peace bond proceedings, see N.D.R.Crim.P., Rule 54.

Notes to Decisions

Appeal.

No appeal lies from the order of a magistrate requiring a person who has threatened to commit an offense to enter into an undertaking to keep the peace. Bradley v. Malen, 37 N.D. 295, 164 N.W. 24, 1917 N.D. LEXIS 112 (N.D. 1917).

29-02-12. When undertaking is or is not given.

If an undertaking to keep the peace as required by section 29-02-11 is given, the party complained of must be discharged. If the party does not give it, the magistrate shall commit the person to prison specifying in the warrant the requirement to give security, the amount thereof, and the omission to give the same.

Source:

C. Crim. P. 1877, § 31; R.C. 1895, § 7770; R.C. 1899, § 7770; R.C. 1905, § 9578; C.L. 1913, § 10414; R.C. 1943, § 29-0212.

29-02-13. Accused committed — How discharged — Undertaking transmitted to district court.

If a person complained of for threatening to commit an offense against the person or property of another is committed for not giving security, that person, upon giving the same, may be discharged by any municipal judge who is authorized to act as a committing magistrate, or by the judge of the district court of the county. Any undertaking so accepted must be transmitted by the acting magistrate to the district court of the county for disposition at the next term.

Source:

C. Crim. P. 1877, §§ 31, 32; R.C. 1895, §§ 7771, 7772; R.C. 1899, §§ 7771, 7772; R.C. 1905, §§ 9579, 9580; C.L. 1913, §§ 10415, 10416; R.C. 1943, § 29-0213; S.L. 1981, ch. 320, § 70; 1991, ch. 326, § 109.

29-02-14. Assault in presence of court — Security required — Committed on default.

A person who in the presence of a court or magistrate assaults or threatens to assault another, or to commit an offense against another’s person or property, or who contends with another with angry words, may be ordered by the court or magistrate to give security, as is provided in section 29-02-11, or if that person refuses to do so that person may be committed as is provided in section 29-02-12.

Source:

C. Crim. P. 1877, § 33; R.C. 1895, § 7773; R.C. 1899, § 7773; R.C. 1905, § 9581; C.L. 1913, § 10417; R.C. 1943, § 29-0214.

29-02-15. Accused must appear at district court.

A person who has entered into an undertaking to keep the peace shall appear on the first day of the next term of the district court of the county. If that person does not, the court may forfeit that person’s undertaking and order it to be prosecuted unless that person’s default is excused.

Source:

C. Crim. P. 1877, § 34; R.C. 1895, § 7774; R.C. 1899, § 7774; R.C. 1905, § 9582; C.L. 1913, § 10418; R.C. 1943, § 29-0215.

29-02-16. Complainant not appearing — Accused discharged.

If the one who complained of a person who has entered into an undertaking to keep the peace does not appear on the first day of the next term of the district court of the county, the person complained of may be discharged unless good cause to the contrary is shown.

Source:

C. Crim. P. 1877, § 35; R.C. 1895, § 7775; R.C. 1899, § 7775; R.C. 1905, § 9583; C.L. 1913, § 10419; R.C. 1943, § 29-0216.

29-02-17. Procedure when parties appear.

If the complainant and accused both appear, as is required by sections 29-02-15 and 29-02-16, the court may hear their proofs and allegations, and may discharge the undertaking or require a new one for a time not exceeding one year.

Source:

C. Crim. P. 1877, § 36; R.C. 1895, § 7776; R.C. 1899, § 7776; R.C. 1905, § 9584; C.L. 1913, § 10420; R.C. 1943, § 29-0217.

29-02-18. When undertaking broken.

An undertaking to keep the peace is broken on the failure of a person complained of to appear at the district court as provided in section 29-02-15 or upon that person’s being convicted of a breach of the peace.

Source:

C. Crim. P. 1877, § 37; R.C. 1895, § 7777; R.C. 1899, § 7777; R.C. 1905, § 9585; C.L. 1913, § 10421; R.C. 1943, § 29-0218.

29-02-19. Action upon the undertaking to keep peace.

If the state’s attorney produces to the district court to which an undertaking to keep the peace is returned, evidence that the principal has been convicted of a breach of the peace, that court shall order the undertaking to be prosecuted and the state’s attorney thereupon shall commence an action upon it in the name of this state.

Source:

C. Crim. P. 1877, § 38; R.C. 1895, § 7778; R.C. 1899, § 7778; R.C. 1905, § 9586; C.L. 1913, § 10422; R.C. 1943, § 29-0219.

29-02-20. What alleged in action.

In an action prosecuted for breach of an undertaking to keep the peace, the offense stated in the record of conviction must be alleged as the breach of the undertaking, and such record is conclusive evidence thereof.

Source:

C. Crim. P. 1877, § 39; R.C. 1895, § 7779; R.C. 1899, § 7779; R.C. 105, § 9587; C.L. 1913, § 10423; R.C. 1943, § 29-0220.

29-02-21. Limitation.

Security to keep the peace or to be of good behavior cannot be required except as is prescribed in this chapter.

Source:

C. Crim. P. 1877, § 40; R.C. 1895, § 7780; R.C. 1899, § 7780; R.C. 1905, § 9588; C.L. 1913, § 10424; R.C. 1943, § 29-0221.

29-02-22. Costs to be taxed.

In all cases in which security is furnished under the provisions of this chapter to keep the peace, the court, in addition to the orders mentioned in this chapter, shall tax the costs against the complainant or defendant, or both, as justice may require, and shall enter judgment therefor. Such judgment may be enforced as a judgment for costs in a criminal case, and execution may issue therefor.

Source:

S.L. 1881, ch. 38, § 1; R.C. 1895, § 7781; R.C. 1899, § 7781; R.C. 1905, § 9589; C.L. 1913, § 10425; R.C. 1943, § 29-0222.

29-02-23. Police to attend public meetings — Direction.

The mayor or other officer having the direction of the police in a city shall order a force sufficient to preserve the peace to attend any public meeting when that person is satisfied that a breach of the peace is reasonably apprehended.

Source:

C. Crim. P. 1877, § 42; R.C. 1895, § 7783; R.C. 1899, § 7783; R.C. 1905, § 9591; C.L. 1913, § 10427; R.C. 1943, § 29-0223; S.L. 1967, ch. 323, § 94.

29-02-24. When officers may disperse assembly.

If the persons assembled and commanded to disperse do not immediately disperse, any magistrate or law enforcement officer may command the aid of a sufficient number of persons and may proceed in such manner as in that person’s judgment is necessary to disperse the assembly and arrest the offenders.

Source:

C. Crim. P. 1877, § 52; R.C. 1895, § 7793; R.C. 1899, § 7793; R.C. 1905, § 9601; C.L. 1913, § 10437; R.C. 1943, § 29-0224; S.L. 1981, ch. 91, § 16.

CHAPTER 29-03 Local Jurisdiction of Public Offenses

29-03-01. Crime commenced without this state and consummated within state.

When the commission of a public offense, commenced without this state, is consummated within its boundaries, and the defendant is liable to prosecution as provided in section 29-03-01.1, the venue is in the county in which the offense is consummated, or in which the offenders are apprehended.

Source:

C. Crim. P. 1877, § 72; R.C. 1895, § 7858; R.C. 1899, § 7858; R.C. 1905, § 9666; C.L. 1913, § 10502; R.C. 1943, § 29-0301; S.L. 1973, ch. 116, § 40.

Cross-References.

Place of trial, N.D.R.Crim.P., Rule 18.

Collateral References.

Jurisdiction of criminal charge for child desertion or nonsupport as affected by nonresidence of parent or child, 44 A.L.R.2d 886.

Libel in newspaper, venue of criminal prosecution for, 15 A.L.R.3d 1249.

29-03-01.1. When persons liable to prosecution in this state.

Any person who commits one or more of the following acts is liable to prosecution under the laws of this state:

  1. Commission of a robbery or theft outside this state and bringing the stolen property into this state.
  2. Soliciting, while outside this state, criminal action within this state.
  3. Soliciting, while outside this state, sexual contact with a person believed to be a minor who at the time of the solicitation is located in this state.
  4. Commission of kidnapping or felonious restraint when the victim is brought into this state.

Source:

S.L. 1973, ch. 116, § 34; 2007, ch. 125, § 2.

Notes to Decisions

Use of Computer Outside the State.

Defendant’s conviction for luring a minor by computer under N.D.C.C. § 12.1-20-05.1 was proper where the police observed him at a convenience store and he was arrested in North Dakota; thus, this section applied, although the defendant’s computer was in Minnesota, and he was subjected to prosecution in North Dakota. State v. Backlund, 2003 ND 184, 672 N.W.2d 431, 2003 N.D. LEXIS 198 (N.D. 2003).

Collateral References.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications, 33 A.L.R.6th 373.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

29-03-02. Duel without this state, causing death within — Jurisdiction where death occurs.

When an inhabitant or resident of this state, by previous appointment or engagement, fights a duel or is concerned as a second or surgeon therein, out of the jurisdiction of this state, and in the duel a wound is inflicted upon a person from which the person dies in this state, the jurisdiction of the offense is in the county where the death occurs.

Source:

C. Crim. P. 1877, § 73; R.C. 1895, § 7859; R.C. 1899, § 7859; R.C. 1905, § 9667; C.L. 1913, § 10503; R.C. 1943, § 29-0302.

29-03-03. Inhabitant leaving to evade law — Jurisdiction in county of residence.

When an inhabitant or resident of this state leaves the same for the purpose of evading the operation of the provisions of the statutes relating to dueling, and challenges to fight, with the intent or for the purpose of doing any of the acts prohibited therein, the jurisdiction is in the county of which the offender was an inhabitant or resident when the offense was committed.

Source:

C. Crim. P. 1877, § 74; R.C. 1895, § 7860; R.C. 1899, § 7860; R.C. 1905, § 9668; C.L. 1913, § 10504; R.C. 1943, § 29-0303.

29-03-04. Part committed in different counties — Jurisdiction in either.

When a crime or public offense is committed in part in one county and in part in another, or when the acts or effects thereof constituting, or requisite to the consummation of, the offense occur in two or more counties, the jurisdiction is in either or any of said counties.

Source:

C. Crim. P. 1877, § 75; R.C. 1895, § 7861; R.C. 1899, § 7861; R.C. 1905, § 9669; C.L. 1913, § 10505; R.C. 1943, § 29-0304.

Notes to Decisions

Attempted Theft Based on Filing False Insurance Claim.

Where defendant was charged with attempted theft by filing a false insurance claim for a stolen automobile, which was in fact found burned in Renville County, venue was proper in Ward County where the alleged crime, or at least a part of the alleged crime was committed, if committed at all, in that defendant contacted his father from Ward County to file the alleged false insurance claim. State v. York, 326 N.W.2d 208, 1982 N.D. LEXIS 381 (N.D. 1982).

Defrauding a Secured Creditor.

Where defendant was charged with defrauding a secured creditor in violation of N.D.C.C. § 12.1-23-08 on basis that he sold collateral securing debt and failed to apply proceeds to debt, venue was proper in Burleigh County where, although sales took place outside Burleigh County, collateral was kept in Burleigh County, was loaded in Burleigh County for shipment for sale, discussions between creditor and defendant about applying proceeds to debt occurred in Burleigh County, and defendant cashed sale check in Burleigh County. State v. Patten, 353 N.W.2d 26, 1984 N.D. LEXIS 336 (N.D. 1984).

Evidence Sufficient.

Evidence held sufficient to support the jury’s finding that the murder occurred in the county in which the defendant was prosecuted. State v. Kunkel, 548 N.W.2d 773, 1996 N.D. LEXIS 153 (N.D. 1996).

Formation of Intent.

Where there was evidence that defendant formed intent in Burleigh County to remove his children from North Dakota, beginning journey to Oregon and Montana by taking the children out of Burleigh County, intent being “requisite to the consummation of” the offense of removing his children “outside North Dakota with the intent to deny another person’s rights under an existing custody decree,” defendant could properly be convicted in Burleigh County of violating former section 14-14-22.1. State v. Rathjen, 455 N.W.2d 845, 1990 N.D. LEXIS 110 (N.D. 1990).

Furtherance of a Crime.

An act in furtherance of the crime that occurs in a county confers jurisdiction for trial of that crime in that county. State v. Martinsons, 462 N.W.2d 458, 1990 N.D. LEXIS 232 (N.D. 1990).

Gambling Transactions.

In a prosecution for gambling, where the defendant’s statement indicated that, while he was working in Beulah (which is in Mercer County), he placed and accepted bets and passed the proceeds on to a man known as “Chief,” and a witness who personally engaged in gambling transactions with the defendant testified that he obtained line sheets from the defendant which he then used to solicit wagers from coworkers in Oliver County, and he later turned the bets over to the defendant, who paid him for his services, the defendant’s written statement that he met “Chief” while working in Beulah and that he placed wagers for others which he then turned over to “Chief” supported a reasonable inference that part of the gambling transactions took place in Beulah. Therefore, venue in Mercer County was proper. State v. Rasmussen, 365 N.W.2d 481, 1985 N.D. LEXIS 280 (N.D. 1985).

Obtaining Money by False Pretenses.

Where a signature to a check was obtained by false pretenses in one county and the check cashed in another, the crime of obtaining money by false pretenses was committed, in part, in the county where the check was cashed. State v. Hastings, 77 N.D. 146, 41 N.W.2d 305, 1950 N.D. LEXIS 114 (N.D. 1950).

When Crime Committed.

Generally a crime is committed in a county when the criminal act, its object and purpose, is completed within that county. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Collateral References.

Libel in newspaper, venue of criminal prosecution for, 15 A.L.R.3d 1249.

Venue in homicide cases where crime is committed partly in one county and partly in another, 73 A.L.R.3d 907.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Venue in bribery cases where crime is committed partly in one county and partly in another, 11 A.L.R.4th 704.

29-03-05. Committed near boundary — Jurisdiction in either.

When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the jurisdiction is in either county.

Source:

C. Crim. P. 1877, § 76; R.C. 1895, § 7862; R.C. 1899, § 7862; R.C. 1905, § 9670; C.L. 1913, § 10506; R.C. 1943, § 29-0305.

Notes to Decisions

Offenses in River.

District court did not err in denying defendant’s motion to dismiss, because under N.D.C.C. § 29-03-05, Burleigh County had authority to prosecute alleged offenses that the parties admitted occurred on the Burleigh County side of the center of the main channel of the Missouri River, or within five hundred yards of the boundary. State v. Wetzel, 2008 ND 186, 756 N.W.2d 775, 2008 N.D. LEXIS 182 (N.D. 2008).

29-03-06. On board vessel — Jurisdiction in any county traversed.

When an offense is committed in this state on board a boat or vessel navigating or lying in a river, lake, or canal, in the prosecution of the voyage, the jurisdiction is in any county through which the vessel is navigated in the course of the voyage, or in the county where the voyage terminates.

Source:

C. Crim. P. 1877, § 77; R.C. 1895, § 7863; R.C. 1899, § 7863; R.C. 1905, § 9671; C.L. 1913, § 10507; R.C. 1943, § 29-0306.

29-03-07. Venue of offense in or against aircraft.

Subject to section 29-01-33, any person who commits an offense in or against any aircraft while it is in flight over this state may be tried in any county in this state.

Source:

S.L. 1935, ch. 126, § 1; R.C. 1943, § 29-0307; S.L. 1997, ch. 274, § 8.

Cross-References.

Jurisdiction over crimes and torts committed in or against aircraft, see § 2-03-08.

29-03-08. Venue of offenses committed on railroad train or other vehicle.

Subject to section 29-01-33, when an offense is committed on a railroad train or other vehicle while in the course of a trip, the trial may be in any county through which the train or other public vehicle passed during the trip.

Source:

S.L. 1935, ch. 126, § 2; R.C. 1943, § 29-0308; S.L. 1997, ch. 274, § 9.

29-03-09. Venue of kidnapping, forcible restraint, unlawful imprisonment, electronic luring, or prostitution cases.

The venue of a criminal action for any of the following offenses is in any county in which the offense is committed, or into or out of which the individual upon whom the offense was committed may have been brought, in the course of the commission of the offense, or in which an act was done by the accused in instigating, procuring, promoting, soliciting, or facilitating the commission of the offense:

  1. Kidnapping, forcible restraint, or unlawful imprisonment, in violation of chapter 12.1-18;
  2. A violation of section 12.1-29-01, 12.1-29-02, or 12.1-29-03 relating to prostitution; or
  3. Luring a minor by computer or other electronic means in violation of section 12.1-20-05.1.

Source:

C. Crim. P. 1877, § 78; R.C. 1895, § 7864; R.C. 1899, § 7864; R.C. 1905, § 9672; C.L. 1913, § 10508; R.C. 1943, § 29-0309; S.L. 1975, ch. 106, § 323; 2007, ch. 125, § 3.

29-03-10. Venue of burglary, robbery, or theft cases — Property taken from one county to another.

When property taken in one county by burglary, robbery, or theft has been brought into another county, the venue of the offense is in either county.

Source:

C. Crim. P. 1877, § 80; R.C. 1895, § 7865; R.C. 1899, § 7865; R.C. 1905, § 9673; C.L. 1913, § 10509; R.C. 1943, § 29-0310; S.L. 1975, ch. 106, § 324.

Notes to Decisions

Larceny Prosecution.

Where property is stolen in one county, and as one continuous act in stealing and asportation, is carried into another county, a larceny prosecution may be brought in either county. State v. Ehr, 64 N.D. 309, 252 N.W. 60, 1934 N.D. LEXIS 202 (N.D. 1934).

29-03-11. Treason — Overt act without state.

The jurisdiction of a criminal action for treason, when the overt act is committed out of this state, is in any county of the state.

Source:

R.C. 1895, § 7866; R.C. 1899, § 7866; R.C. 1905, § 9674; C.L. 1913, § 10510; R.C. 1943, § 29-0311.

29-03-12. Jurisdiction of accessory in county where committed.

In the case of an accessory in the commission of a public offense, the jurisdiction is in the county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county.

Source:

C. Crim. P. 1877, § 81; R.C. 1895, § 7867; R.C. 1899, § 7867; R.C. 1905, § 9675; C.L. 1913, § 10511; R.C. 1943, § 29-0312.

29-03-13. Conviction or acquittal in another state bar to prosecution.

When an act charged as a public offense is within the jurisdiction of another state, country, or territory as well as in this state, a conviction or acquittal thereof in the former is a bar to a prosecution or indictment therefor in this state.

Source:

C. Crim. P. 1877, § 82; R.C. 1895, § 7868; R.C. 1899, § 7868; R.C. 1905, § 9676; C.L. 1913, § 10512; R.C. 1943, § 29-0313.

Notes to Decisions

Conspiracy.

Where defendant had been convicted in Florida for conspiracy to deliver, possess, and sell controlled substances, this section did not bar prosecution of defendant in this state for delivery and possession of controlled substances with intent to deliver in violation of section 19-03.1-23. State v. Mayer, 356 N.W.2d 149, 1984 N.D. LEXIS 403 (N.D. 1984).

Law Reviews.

Statutory Bars to Dual Sovereign Prosecutions: The Minnesota and North Dakota Approaches Compared, 72 N.D. L. Rev. 583 (1996).

29-03-14. Conviction or acquittal in another county a bar in another.

When an offense is in the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment thereof in another.

Source:

C. Crim. P. 1877, § 83; R.C. 1895, § 7869; R.C. 1899, § 7869; R.C. 1905, § 9677; C.L. 1913, § 10513; R.C. 1943, § 29-0314.

29-03-15. Escaping from penitentiary — Jurisdiction in Burleigh County. [Repealed]

Repealed by S.L. 2001, ch. 131, § 3.

29-03-16. Escaping from jail — Jurisdiction where jail located. [Repealed]

Repealed by S.L. 2001, ch. 131, § 3.

29-03-17. Bringing stolen property into state.

The jurisdiction of a criminal action for stealing in any state, country, or territory, the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into which such stolen property has been brought.

Source:

C. Crim. P. 1877, § 85; R.C. 1895, § 7872; R.C. 1899, § 7872; R.C. 1905, § 9680; C.L. 1913, § 10516; R.C. 1943, § 29-0317.

Notes to Decisions

Jurisdiction.

A court has no jurisdiction in the first instance to try a charge of larceny under the statute pertaining to the stealing of property in another state or country and bringing such property into the state unless the property is brought into or through the county in which the prosecution is had. State v. Tennyson, 73 N.D. 262, 14 N.W.2d 168, 1944 N.D. LEXIS 59 (N.D. 1944).

29-03-18. Murder or manslaughter.

The jurisdiction of a criminal action for murder or manslaughter, when the injury which caused the death was inflicted in one county and the party injured dies in another or out of the state, is in the county where the injury was inflicted.

Source:

C. Crim. P. 1877, § 86; R.C. 1895, § 7873; R.C. 1899, § 7873; R.C. 1905, § 9681; C.L. 1913, § 10517; R.C. 1943, § 29-0318.

29-03-19. Action against a principal not present.

The jurisdiction of a criminal action against a principal in the commission of a public offense, when such principal is not present at the commission thereof, is in the county in which it would be under this title, if the principal were present and aiding and abetting therein.

Source:

C. Crim. P. 1877, § 87; R.C. 1895, § 7874; R.C. 1899, § 7874; R.C. 1905, § 9682; C.L. 1913, § 10518; R.C. 1943, § 29-0319.

29-03-20. Prizefighting violations — Jurisdiction.

The jurisdiction of a criminal action for the violation of section 53-01-19 is in any county:

  1. In which any act is done toward the commission of the offense;
  2. Into, out of, or through which the offender passed to commit the offense; or
  3. Where the offender is arrested.

Source:

R.C. 1895, § 7875; R.C. 1899, § 7875; R.C. 1905, § 9683; C.L. 1913, § 10519; R.C. 1943, § 29-0320; S.L. 1979, ch. 187, § 58.

29-03-21. When mailing of letter is criminal — Venue.

In those cases in which the sending of a letter is made an offense, the offense is deemed completed when the letter is deposited in any post office or postal receptacle, or delivered to any person with intent that it be forwarded. The person sending the letter may be tried in any county in which the letter is so deposited or delivered, or in the county in which it is received by the addressee.

Source:

S.L. 1973, ch. 116, § 35.

29-03-22. Venue of multiple theft offenses involving credit cards.

If any of a series of thefts can be charged as one offense for purposes of grading under subsection 7 of section 12.1-23-05, if each of those thefts involved the use of a credit card, and if the total value of the property or services stolen is at least fifty dollars, venue for the criminal action, in which the series of thefts is charged as one offense, is in any county where any of the thefts was committed.

Source:

S.L. 1985, ch. 358, § 1; 2013, ch. 104, § 14.

CHAPTER 29-04 Limitations

29-04-01. Prosecution for murder not limited.

There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.

Source:

C. Crim. P. 1877, § 88; R.C. 1895, § 7876; R.C. 1899, § 7876; R.C. 1905, § 9684; C.L. 1913, § 10520; R.C. 1943, § 29-0401.

Collateral References.

Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.

29-04-02. Prosecution for felony other than murder within three years.

Except as otherwise provided by law, a prosecution for any felony other than murder must be commenced within three years after its commission. Prosecution of felony offenses under chapter 12.1-23 or 50-24.8 must be commenced within the later of three years of commission of the last act that is an element of the offense, three years of discovery of the stolen property, or three years of discovery of the loss of the property or services. Nothing in this section prevents a person prosecuted for murder from being found guilty of any included offense and punished accordingly.

Source:

C. Crim. P. 1877, § 89; R.C. 1895, § 7877; R.C. 1899, § 7877; R.C. 1905, § 9685; C.L. 1913, § 10521; R.C. 1943, § 29-0402; S.L. 1987, ch. 390, § 1; 2011, ch. 236, § 1; 2021, ch. 175, § 5, effective August 1, 2021.

Notes to Decisions

In General.

Expiration of the limitation period bars prosecution of a criminal charge. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

Amendment Applicable.

Defendant contended that the three-year statute of limitations barred his conviction on seven of the nine counts alleged in the information, because the transactions involved in those counts were alleged to have occurred more than three years before the informations were filed. Relying on an amendment to this section, the State responded that the prosecutions for those seven counts were within the three-year statute of limitations. The 1987 amendment to this section was applicable to the case, since statutes enacted by the legislature are to be applied prospectively, the conduct in the case occurred before the 1987 amendment to this section, and the legislature did not clearly express retroactive application of that amendment. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Application of Prior Law.

The pre-1987 statute of limitation period of this section would apply to a theft which occurred in October, 1986. State v. Dimmler, 456 N.W.2d 297, 1990 N.D. LEXIS 122 (N.D. 1990).

Under this section as it read prior to 1987 amendment, an information or indictment must be filed within three years after the commission of the alleged offense. State v. Dimmler, 456 N.W.2d 297, 1990 N.D. LEXIS 122 (N.D. 1990).

Demurrer to Information.

The expiration of the period of limitation for the prosecution of an offense is a legal bar to the prosecution and, where it appears from the information that the bar exists, that fact is a ground for demurrer. State v. Thomas, 72 N.D. 537, 9 N.W.2d 442, 1943 N.D. LEXIS 89 (N.D. 1943).

Failure to Pay Child Support.

Prosecution for willful failure to pay child support in violation of N.D.C.C. § 12.1-37-01 was not time-barred because the plain language of N.D.C.C. § 12.1-37-01 authorized a prosecution for willful failure to pay not only orders for current support, but also child support arrearages. State v. Nastrom, 2008 ND 110, 750 N.W.2d 432, 2008 N.D. LEXIS 106 (N.D. 2008).

Instruction on Theft by Deception.

Where jury was not instructed that the State must prove by a preponderance of evidence that the theft by deception occurred within the applicable statute of limitations, and where evidence, viewed in the light most favorable to defendant, was that he both knowingly obtained and intentionally deprived others of property by deception before the date the statute of limitations commenced, failure to instruct the jury on that issue was obvious error and defendant was entitled to a new trial with appropriate instructions. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Jurisdictional Fact.

Where defendant argued that the three-year statute of limitations barred his prosecution, and where defendant did not raise the issue at the trial court level, defendant did not waive the issue, and it was noticed for the first time on appeal; statute of limitations in a criminal case was a jurisdictional fact which created a bar to prosecution. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Retroactive Application of Amendments.

A review of the legislative history of the 1985, 1987, and 1993 amendments allowed the supreme court to rationally infer that the legislature intended retroactive application of each extension of the statute of limitations; the court discerned a legislative intent to apply the amendments to existing offenses, not merely future ones. State v. Davenport, 536 N.W.2d 686, 1995 N.D. LEXIS 151 (N.D. 1995).

Collateral References.

Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.

Application of statute of limitations to criminal false pretense action based on false statement as to existing encumbrance on chattel made to obtain loan or credit, 53 A.L.R.2d 1215.

Conspiracy, when does statute of limitations begin to run against criminal prosecution for, 62 A.L.R.2d 1369.

Finding or return of indictment, or filing of information, as tolling limitation period, 18 A.L.R.4th 1202.

Waivability of bar of limitations against criminal prosecution, 78 A.L.R.4th 693.

29-04-02.1. Prosecution for gross sexual imposition or human trafficking.

Except as otherwise provided by law, a prosecution for a violation of subdivision a of subsection 1 of section 12.1-20-03 or for the crime of human trafficking must be commenced in the proper court within seven years after the commission of the offense.

Source:

S.L. 2001, ch. 134, § 10; 2015, ch. 236, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 236, S.L. 2015 became effective August 1, 2015.

29-04-03. Prosecution for misdemeanor or infraction within two years.

A prosecution of a misdemeanor or infraction, except as otherwise provided by law, must be commenced within two years after its commission. Prosecution of misdemeanor offenses under chapter 12.1-23 must be commenced within the later of two years of commission of the last act that is an element of the offense, two years of discovery of the stolen property, or two years of discovery of the loss of the property or services.

Source:

R.C. 1895, § 7878; R.C. 1899, § 7878; R.C. 1905, § 9686; C.L. 1913, § 10522; R.C. 1943, § 29-0403; S.L. 1975, ch. 106, § 325; 1987, ch. 390, § 2; 2011, ch. 236, § 2.

Notes to Decisions

Creates Bar to Prosecution.

This section is not a statute of repose, but creates a bar to the prosecution, and the time within which an offense is committed becomes a jurisdictional fact. State v. Tennyson, 73 N.D. 259, 14 N.W.2d 171, 1944 N.D. LEXIS 58 (N.D. 1944).

Instruction As to Time of Offense.

It is not error to instruct a jury, in a prosecution for a continuing offense, that proofs would be sufficient if they showed to the jury’s satisfaction that the offense was committed at any date between the dates set out in the information, and within two years prior to the filing of the information. State v. McCauley, 68 N.D. 198, 277 N.W. 605, 1938 N.D. LEXIS 97 (N.D. 1938).

State Has Burden of Proof.

The state has the burden of proving affirmatively the commission of an offense charged within the period limited for its prosecution. State v. Tennyson, 73 N.D. 259, 14 N.W.2d 171, 1944 N.D. LEXIS 58 (N.D. 1944).

Collateral References.

Waivability of bar of limitations against criminal prosecution, 78 A.L.R.4th 693.

29-04-03.1. Prosecution for sexual abuse of minors.

  1. Except as provided in subsection 2, a prosecution for a violation of sections 12.1-20-03 through 12.1-20-08 or of section 12.1-20-11 if the victim was under eighteen years of age at the time the offense was committed must be commenced in the proper court within twenty-one years after the commission of the offense or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities.
  2. If, based upon evidence containing deoxyribonucleic acid or a fingerprint obtained at the time of offense, a suspect is conclusively identified by deoxyribonucleic acid testing after the time period prescribed in subsection 1 has expired, a prosecution may be commenced within three years after the suspect is conclusively identified by the deoxyribonucleic acid testing or fingerprint authentication.

Source:

S.L. 1985, ch. 359, § 1; 1987, ch. 390, § 3; 1993, ch. 331, § 1; 2015, ch. 234, § 2, effective August 1, 2015; 2017, ch. 228, § 1, effective August 1, 2017; 2019, ch. 268, § 2, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 234, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

In General.

The 1985 enactment created a specific, separate time limit for prosecuting a charge of sexual abuse of a child. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

Applicability.

Defendant’s conviction for gross sexual imposition was upheld because the court did not err in applying the 1993 version of N.D.C.C. § 29-04-03.1 to the claims against defendant; because there was no time when the statute of limitations against defendant had expired, defendant had no ex post facto claim regarding the application of the 1993 version of § 29-04-03.1 to acts occurring in 1990 or 1991. State v. Buchholz, 2004 ND 77, 678 N.W.2d 144, 2004 N.D. LEXIS 179 (N.D. 2004).

Charges based on the sexual abuse of defendant’s young nephew were not barred by the statute of limitations; because the nephew was under 15 at the time of the offense, the statute of limitations did not begin to run until his 15th birthday in 1997, he did not report the offense to law enforcement until January 31, 2005, therefore, the prosecution had to be commenced within three years after that date, and the State filed a criminal complaint against defendant in June 2005, well within the three-year limitation period. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Charges based on the sexual abuse of defendant’s young niece were not barred by the statute of limitations; the district court correctly applied the current version of N.D.C.C. § 29-04-03.1, and, because the victim was under 15 at the time of the sexual abuse, the statute of limitations did not begin to run until her 15th birthday in 2002. The offense was reported to law enforcement authorities in December 2002, within the initial seven-year limitation period, and the prosecution was commenced within seven years. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Defendant was properly convicted of gross sexual imposition against a her son and stepson because the district court did not err in sentencing her in excess of the recommendations where defendant waived her factual argument by pleading guilty, the jury was properly instructed on the statute of limitations, the district court could consider the testimony at the earlier hearings regarding the date the offense was reported, defendant did not move withdraw her guilty plea, and the parties were aware the recommendation of sentence was nonbinding. State v. Berg, 2015 ND 61, 860 N.W.2d 829, 2015 N.D. LEXIS 57 (N.D. 2015).

Legislative Intent.

The legislative history of this section makes it clear that the legislature’s intention was to extend the time for prosecutions of sexual abuse of children. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

The three-years-after-reporting language was intended to extend the limitation period beyond the seven years, especially in cases of repressed memory of childhood sexual abuse. State v. Davenport, 536 N.W.2d 686, 1995 N.D. LEXIS 151 (N.D. 1995).

Retroactive Application of Amendments.

A review of the legislative history of the 1985, 1987, and 1993 amendments allowed the supreme court to rationally infer that the legislature intended retroactive application of each extension of the statute of limitations; the court discerned a legislative intent to apply the amendments to existing offenses, not merely future ones. State v. Davenport, 536 N.W.2d 686, 1995 N.D. LEXIS 151 (N.D. 1995).

29-04-03.2. Statute of limitations as to child victim.

If the victim of a violation of chapter 12.1-20 or of the crime of human trafficking is under the age of fifteen, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of fifteen.

Source:

S.L. 1987, ch. 391, § 1; 2015, ch. 236, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 236, S.L. 2015 became effective August 1, 2015.

Notes to Decisions

Applicability.

Charges based on the sexual abuse of defendant’s young niece were not barred by the statute of limitations; the district court correctly applied the current version of N.D.C.C. § 29-04-03.1, and, because the victim was under 15 at the time of the sexual abuse, the statute of limitations did not begin to run until her 15th birthday in 2002. The offense was reported to law enforcement authorities in December 2002, within the initial seven-year limitation period, and the prosecution was commenced within seven years. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Charges based on the sexual abuse of defendant’s young nephew were not barred by the statute of limitations; because the nephew was under 15 at the time of the offense, the statute of limitations did not begin to run until his 15th birthday in 1997, he did not report the offense to law enforcement until January 31, 2005, therefore, the prosecution had to be commenced within three years after that date, and the State filed a criminal complaint against defendant in June 2005, well within the three-year limitation period. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

29-04-04. Time of defendant’s absence not part of limitation.

If, when a crime or public offense is committed, the defendant is out of the state, or if the defendant is within the state and subsequently leaves the state, the information may be filed, or the indictment found, within the time herein limited, after the defendant’s return to the state. No time during which the defendant is not an inhabitant of, or usually resident within, this state is part of the limitation.

Source:

C. Crim. P. 1877, § 90; R.C. 1895, § 7879; R.C. 1899, § 7879; R.C. 1905, § 9687; C.L. 1913, § 10523; S.L. 1925, ch. 124, § 1; 1925 Supp., § 10523; R.C. 1943, § 29-0404.

Notes to Decisions

Amendment Not Ex Post Facto Law.

The amendment of this section by S.L. 1925, ch. 124, § 1, relating to the tolling of the statute limiting a prosecution was applicable to a crime committed prior to the amendment, where the limitation period had not been completed. State v. Pleason, 56 N.D. 499, 218 N.W. 154, 1928 N.D. LEXIS 163 (N.D. 1928).

29-04-05. When prosecution is commenced.

A prosecution is commenced when a uniform complaint and summons, a complaint, or an information is filed or when a grand jury indictment is returned.

Source:

C. Crim. P. 1877, § 91; R.C. 1895, § 7880; R.C. 1889, § 7880; R.C. 1905, § 9688; C.L. 1913, § 10524; R.C. 1943, § 29-0405; 2011, ch. 237, § 1.

Decisions under Prior Law

Information Sufficient.

Requirements Not Followed.

Theft.

Information Sufficient.

Where defendant entered a not guilty plea without objecting to the information, the information was not invalid under N.D.C.C. § 29-09-02(3) and the appellate court rejected defendant’s claim that an information could not be filed under N.D.R.Crim.P., Rule 7(a) until after a preliminary examination was held, the information received was sufficient to commence the action against defendant under N.D.C.C. § 29-04-05, within the five-year statute of limitations in N.D.C.C. § 10-04-18(4). State v. Noorlun, 2005 ND 189, 705 N.W.2d 819, 2005 N.D. LEXIS 225 (N.D. 2005), cert. denied, 547 U.S. 1196, 126 S. Ct. 2869, 165 L. Ed. 2d 902, 2006 U.S. LEXIS 4590 (U.S. 2006).

Requirements Not Followed.

Although criminal complaints charging defendant with nine class C felonies were filed in county court in June, 1987, those complaints were not filed by a magistrate having jurisdiction to hear, try, and determine the action as required by the plain language of this section. Therefore, the prosecutions against defendant were commenced by the filing of the informations in district court on December 21, 1987. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Theft.

For purposes of the statute of limitations under N.D.C.C. § 29-04-02 as it read prior to 1987 amendment, prosecution for the felony of theft against defendant was commenced by the filing of the information in district court, and not by the filing of the complaint with the county court acting as a committing magistrate. State v. Dimmler, 456 N.W.2d 297, 1990 N.D. LEXIS 122 (N.D. 1990).

CHAPTER 29-05 The Complaint and Warrant of Arrest

29-05-01. What complaint must state.

A complaint must state:

  1. The name of the person accused, if known, or if not known and it is so stated, that person may be designated by any other name;
  2. The county in which the offense was committed;
  3. The general name of the crime or public offense committed;
  4. The acts or omissions complained of as constituting the crime or public offense named;
  5. The person against whom, or against whose property, the offense was committed, if known; and
  6. If the offense is against the property of any person, a general description of such property.

The complaint must be subscribed and sworn to by the complainant.

Source:

R.C. 1895, § 7886; R.C. 1899, § 7886; R.C. 1905, § 9694; C.L. 1913, § 10530; R.C. 1943, § 29-0501.

Cross-References.

The complaint, see N.D.R.Crim.P., Rule 3.

Notes to Decisions

Description of Property.

A complaint in justice court charging a person with keeping and maintaining a nuisance “in a certain one-story frame building” in a certain village and county, without specifying the lot and block where kept, is a sufficient description upon which to base a preliminary examination. State v. Wisnewski, 13 N.D. 649, 102 N.W. 883, 1905 N.D. LEXIS 10 (N.D. 1905).

Statement of Facts Constituting Offense.

A criminal complaint, on preliminary hearing before the magistrate, need not state the facts constituting the offense with the same technical accuracy as an information. State v. Cook, 53 N.D. 429, 206 N.W. 786, 1925 N.D. LEXIS 105 (N.D. 1925).

29-05-02. Who must make complaint. [Repealed]

Superseded by N.D.R.Crim.P., Rule 3.

29-05-03. Magistrate may examine complainant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 3.

29-05-04. Accused arrested without warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-05-05. Witnesses other than complainant.

Every person making complaint charging the commission of a crime or public offense shall inform the magistrate of all persons whom the person believes to have any knowledge of its commission, and the magistrate, at the time of issuing the warrant, may issue subpoenas for such persons, requiring them to attend at a specified time and place as witnesses.

Source:

R.C. 1895, § 7890; R.C. 1899, § 7890; R.C. 1905, § 9698; C.L. 1913, § 10534; R.C. 1943, § 29-0505.

29-05-06. When a warrant of arrest to be issued. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

29-05-07. Warrant defined — Form. [Repealed]

Superseded by N.D.R.Crim.P., Rules 4, 58.

29-05-08. Requisites of warrant — Contents. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

29-05-09. Direction and execution of warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

29-05-10. Peace officer defined.

A peace officer is a sheriff of a county or the sheriff’s deputy, or a coroner, marshal, or policeman of a township or city, or any state or federal law enforcement officer.

Source:

C. Crim. P. 1877, § 99; R.C. 1895, § 7895; R.C. 1899, § 7895; R.C. 1905, § 9703; C.L. 1913, § 10539; R.C. 1943, § 29-0510; 1983, ch. 367, § 1; S.L. 1989, ch. 161, § 3.

Notes to Decisions

City Policeman as Peace Officer.

A police officer of a city has no power to make a binding contract for or create a contractual liability against the city. Trinty Hosp. Ass'n v. Minot, 76 N.W.2d 916, 1956 N.D. LEXIS 125 (N.D. 1956).

29-05-11. Duty of officer if offense charged is felony. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-05-11.1. Duty of peace officer to enter warrant.

A peace officer who receives a warrant for the arrest of a fugitive and does not execute the warrant shall enter the warrant in the central warrant information system. A warrant of arrest for the failure to pay a fine or fee may be entered at the discretion of the peace officer. A criminal justice agency may specify whether the agency will extradite from outside the county or state and the county or state from which the agency will extradite.

Source:

S.L. 2009, ch. 121, § 3.

29-05-12. Bail if offense charged is a misdemeanor or infraction.

If the offense charged in a warrant of arrest is a misdemeanor or infraction not within the jurisdiction of the magistrate who issued it to punish, and the accused is arrested in another county, the officer, upon request of the accused, shall take the accused before a magistrate in the county in which the arrest is made, who shall admit the accused to bail and take bail from the accused accordingly. If there is no magistrate residing within the county wherein the accused is arrested, and the accused requires it, the officer shall take the accused before a magistrate of any other county nearer or more accessible than the magistrate issuing the warrant, and said magistrate shall admit the accused to bail and take bail from the accused accordingly.

Source:

C. Crim. P. 1877, § 104; R.C. 1895, § 7900; R.C. 1899, § 7900; R.C. 1905, § 9708; C.L. 1913, § 10544; R.C. 1943, § 29-0512; S.L. 1975, ch. 106, § 326.

29-05-13. Procedure when bail taken.

On taking bail, as is provided in section 29-05-12, the magistrate shall certify that fact on the warrant and deliver the warrant and undertaking of bail to the officer having charge of the accused. The officer then shall discharge the accused from arrest and without delay shall deliver the warrant and undertaking to the clerk of the court at which the accused is required to appear.

Source:

C. Crim. P. 1877, § 105; R.C. 1895, § 7901; R.C. 1899, § 7901; R.C. 1905, § 9709; C.L. 1913, § 10545; R.C. 1943, § 29-0513.

29-05-14. When bail is not given.

If, on the admission of an accused to bail, the bail is not given forthwith, the officer shall take the accused before the magistrate who issued the warrant, or, in case of that magistrate’s absence or inability to act, before the nearest or most accessible magistrate in the same county, and at the same time shall deliver to the magistrate the warrant with the officer’s return endorsed thereon and subscribed by the officer.

Source:

C. Crim. P. 1877, § 106; R.C. 1895, § 7902; R.C. 1899, § 7902; R.C. 1905, § 9710; C.L. 1913, § 10546; R.C. 1943, § 29-0514.

29-05-15. Misdemeanor within magistrate’s jurisdiction — Procedure.

If the offense charged in a warrant of arrest is within the jurisdiction of the magistrate to try and punish upon conviction, the accused, if arrested in another county, must be taken before the magistrate who issued the warrant, or, if that magistrate is absent, then before some other magistrate, as is provided in section 29-05-14.

Source:

R.C. 1895, § 7903; R.C. 1899, § 7903; R.C. 1905, § 9711; C.L. 1913, § 10547; R.C. 1943, § 29-0515.

29-05-16. When complaint sent to magistrate not issuing warrant.

If, after an arrest, the accused is taken before a magistrate other than the one who issued the warrant, the complaint on which the warrant was granted must be sent to that magistrate, or if it cannot be procured, the prosecutor and the prosecutor’s witnesses must be summoned to give their testimony anew.

Source:

C. Crim. P. 1877, § 109; R.C. 1895, § 7905; R.C. 1899, § 7905; R.C. 1905, § 9713; C.L. 1913, § 10549; R.C. 1943, § 29-0516.

29-05-17. Requirements of warrant for accused from other county — Complaint to accompany. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-05-18. Accused taken to proper county — Delivery of complaint with the accused — Depositions.

The officer who executes a warrant for an offense triable in another county shall take the accused before the nearest or most accessible magistrate of the county in which the offense is triable and shall deliver to the magistrate the complaint and the depositions, if any, and the warrant, with the officer’s return endorsed thereon, and the magistrate then shall proceed in the same manner as upon a warrant issued by that magistrate.

Source:

C. Crim. P. 1877, § 111; R.C. 1895, § 7907; R.C. 1899, § 7907; R.C. 1905, § 9715; C.L. 1913, § 10551; R.C. 1943, § 29-0518.

29-05-19. Procedure if offense is misdemeanor. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-05-20. Unnecessary delay after arrest prohibited — Attorney visitation.

The accused in all cases must be taken before a magistrate without unnecessary delay, and any attorney at law entitled to practice in the courts of record of this state, at the request of the attorney or the accused, may visit the accused after the accused’s arrest.

Source:

C. Crim. P. 1877, § 108; R.C. 1895, § 7904; R.C. 1899, § 7904; R.C. 1905, § 9712; C.L. 1913, § 10548; R.C. 1943, § 29-0520; 2021, ch. 252, § 1, effective August 1, 2021.

Cross-References.

North Dakota legal counsel for indigents rules, see Administrative Rule 18, North Dakota Court Rules Annotated.

Notes to Decisions

In General.

The right to consult with an attorney before taking a chemical test is not derived from the state or federal constitutions, but from this section. State v. Sadek, 552 N.W.2d 71, 1996 N.D. LEXIS 183 (N.D. 1996).

Where defendant asserted the right to counsel prior to submitting to an on-site screening test (a test conducted prior to arrest, the results of which are not admissible as evidence for the ultimate determination of a violation of N.D.C.C. § 39-20-14), a statutory right to counsel did not exist given that defendant was not under arrest and the purpose of the test was only to determine whether there was probable cause to warrant an arrest. City of Mandan v. Leno, 2000 ND 184, 618 N.W.2d 161, 2000 N.D. LEXIS 201 (N.D. 2000).

Administrative License.
—Suspension Proceeding.

Constitutional protections afforded in criminal proceedings are not applicable in administrative license-suspension proceedings. Fasching v. Backes, 452 N.W.2d 324, 1990 N.D. LEXIS 54 (N.D. 1990).

Where there was no evidence to suggest that defendant’s intoxilyzer test was improperly administered, the results of her intoxilyzer test were properly admitted into evidence at a civil administrative hearing, despite fact that evidence was allegedly obtained in violation of provisions of this section relating to defendant’s right to an attorney. Fasching v. Backes, 452 N.W.2d 324, 1990 N.D. LEXIS 54 (N.D. 1990).

Finding by the state transportation agency’s hearing officer, that the motorist was offered a reasonable opportunity to contact an attorney, as required by N.D.C.C. § 29-05-20, after the motorist had been stopped for suspected DUI and refused to take a requested chemical test, was supported by the record, as required by N.D.C.C. § 28-32-46. Since the record showed that the motorist had remarked that it was too late at night to contact an attorney, the revocation of the motorist’s driving privileges had to be upheld. Kasowski v. Dir., N.D. DOT, 2011 ND 92, 797 N.W.2d 40, 2011 N.D. LEXIS 92 (N.D. 2011).

Contact an Attorney.

Revocation of the petitioner’s driving privileges was proper, because the petitioner had a reasonable opportunity to contact an attorney, when the petitioner waited over ten minutes before making a call, and rather than calling an attorney the petitioner called a friend; based on the testimony regarding the petitioner’s continued attempts to change the focus of the investigation, his refusal to follow instructions and his complaints about being uncomfortable in the officer’s patrol vehicle, a reasonable mind could have determined the petitioner was trying to delay the investigation. Bell v. N.D. DOT, 2012 ND 102, 816 N.W.2d 786, 2012 N.D. LEXIS 97 (N.D. 2012).

Revocation of a driving under the influence of alcohol arrestee's driving privileges was proper because a preponderance of the evidence supported the hearing officer's factual finding that the arrestee did not request to speak with an attorney before submitting to a chemical test; the arrestee's reference to “lawyer up,” which was mixed in with a barrage of profanity launched at the deputy was beyond the bright line standard against which a purported request for an attorney were judged. Cudmore v. Dir. of the N.D. DOT, 2016 ND 64, 877 N.W.2d 52, 2016 N.D. LEXIS 67 (N.D. 2016).

Because a driver made no attempt to call a lawyer, the supreme court did not have to decide whether the right to counsel would be violated by placing a person in a recorded and monitored room while the person speaks with a lawyer. Koehly v. Levi, 2016 ND 202, 886 N.W.2d 689, 2016 N.D. LEXIS 207 (N.D. 2016).

Denial of defendant's motion to suppress evidence was appropriate because defendant was afforded a meaningful opportunity to consult with an attorney. Defendant was placed in the only room in a police station known by an officer to have a working telephone, defendant was provided with a phone book, the officer kept defendant in view from the time defendant was arrested until the chemical test was conducted, the officer refused to close the door to ensure defendant placed nothing in defendant's mouth prior to administration of the test. City of Dickinson v. Schank, 2017 ND 81, 892 N.W.2d 593, 2017 N.D. LEXIS 82 (N.D. 2017).

Police officer did not violate defendant's limited statutory right to counsel by denying his request to speak with an attorney in between the first and second “blows” of the second breath test sequence. Allowing defendant to stop the test would have invalidated the entire test sequence and materially interfered with the test administration. State v. Ruden, 2017 ND 185, 900 N.W.2d 58, 2017 N.D. LEXIS 197 (N.D. 2017).

District court properly entered a judgment against defendant following his conditional guilty plea to the charge of driving under the influence because he was provided with an opportunity to consult with an attorney before he decided whether to submit to chemical testing and was not required to be provided with a second chance to consult with an attorney subsequent to making a decision to take the chemical test. City of Jamestown v. Schultz, 2020 ND 154, 946 N.W.2d 740, 2020 N.D. LEXIS 171 (N.D. 2020).

Detention.
—Illegal.

Where defendant was not given access to a telephone to attempt to seek advice and assistance, and defendant’s relatively unimpaired condition permitted an inference that contact with others would have resulted in evidence helpful to his defense, the trial court’s finding that defendant was actually prejudiced by his detention was supported by sufficient competent evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 1994 N.D. LEXIS 190 (N.D. 1994).

Privacy.
—Not Guaranteed.

The police are not required to guarantee an accused’s conversations with counsel are not overheard. City of Mandan v. Jewett, 517 N.W.2d 640, 1994 N.D. LEXIS 131 (N.D. 1994).

Driver was afforded a reasonable opportunity to exercise her limited statutory right under N.D.C.C. § 29-05-20 to consult with an attorney before deciding whether to submit to a chemical test even though arrangements to consult with her attorney in private and not in the presence of police officers were not afforded. Eriksmoen v. Dir. of DOT, 2005 ND 206, 706 N.W.2d 610, 2005 N.D. LEXIS 246 (N.D. 2005).

—Telephone Conversation.

When an accused talks with counsel by telephone, the accused’s right to meaningfully consult with counsel before testing can be ensured by a lesser degree of privacy than in situations involving face-to-face meetings between an accused and counsel. City of Mandan v. Jewett, 517 N.W.2d 640, 1994 N.D. LEXIS 131 (N.D. 1994).

Telephone Calls.

In an arrest for drunk driving, where a call to the family would be a local call without any charge for long distance, there is no reason why the police should prevent a call to the driver’s family for information to locate the family’s lawyer, so long as the time for phone calls, the testing, and the booking process is not unduly extended; the jail has no duty to underwrite long-distance calls by arrested drivers before a chemical test decision is made, even though it should not interfere with a driver’s efforts to locate a lawyer so long as the arrest procedure is not unduly delayed. Mayo v. Moore, 527 N.W.2d 257, 1995 N.D. LEXIS 14 (N.D. 1995).

Collateral References.

Admissibility of confession or other statement made by defendant as affected by delay in arraignment—modern state cases, 28 A.L.R.4th 1121.

Law Reviews.

North Dakota Supreme Court Review (Eriksmoen v. N.D. Dep?t of Transp.), 82 N.D. L. Rev. 1033 (2006).

29-05-21. Officer not liable to arrest while in charge of a person arrested.

While having in charge any person arrested in a criminal action or proceeding, neither the officer, nor any of the officer’s assistants, is liable to arrest on civil process, and such officer is authorized to require any citizen to aid in securing the accused and to retake the accused, if the accused escapes, in any part of the state, as if the officer were within the officer’s own county. A refusal or neglect to render such aid is an offense in the same manner as if the arresting officer were an officer of the county where such aid is required.

Source:

R.C. 1895, § 7910; R.C. 1899, § 7910; R.C. 1905, § 9718; C.L. 1913, § 10554; R.C. 1943, § 29-0521.

29-05-22. Giving bail deemed waiver of examination. [Repealed]

Repealed by S.L. 1973, ch. 252, § 1.

29-05-23. Warrant transmitted by telegraph.

Whenever a warrant for the arrest of a person accused of a crime or public offense is issued by a magistrate, the delivery of the warrant by telegraph may be authorized by a judge of the supreme or district court by an endorsement authorizing telegraphic delivery, at any place within this state, upon the warrant of arrest under the hand of the judge, directed generally to any peace officer in the state. After endorsement, a copy of the warrant may be sent by telegraph to any peace officer within the state, and the copy is as effectual in the hands of any peace officer, who shall serve the same and in all regards proceed thereunder, as though the peace officer held an original warrant issued by the magistrate making the endorsement thereon.

Source:

R.C. 1895, § 7936; R.C. 1899, § 7936; R.C. 1905, § 9744; C.L. 1913, § 10580; R.C. 1943, § 29-0523; S.L. 1985, ch. 151, § 24.

29-05-24. Duty of officer transmitting warrant.

Every officer causing telegraphic copies of a warrant to be sent shall certify as correct, and file in the telegraph office from which such copies are sent, a copy of the warrant and the endorsement thereon, and shall return the original with a statement of the officer’s action thereunder signed by the officer.

Source:

R.C. 1895, § 7937; R.C. 1899, § 7937; R.C. 1905, § 9745; C.L. 1913, § 10581; R.C. 1943, § 29-0524.

29-05-25. Warrant returnable in county where issued — Telegraphic copy deemed original — Misdemeanor or infraction.

Every person arrested by warrant for any offense, when no other provision is made for that person’s examination, must be taken before some magistrate of the county in which the warrant was issued, and the warrant with the proper return thereon, signed by the person who made the arrest, must be delivered to such magistrate. Any telegraphic copy of a warrant under which an officer has acted in making an arrest must be deemed the original warrant. If the offense charged in the warrant is a misdemeanor or infraction within the jurisdiction of a magistrate to try and upon conviction to punish, a trial must be had as is provided by law.

Source:

R.C. 1895, § 7938; R.C. 1899, § 7938; R.C. 1905, § 9746; C.L. 1913, § 10582; R.C. 1943, § 29-0525; S.L. 1975, ch. 106, § 327.

29-05-26. Arrest directed by telegraph.

In all cases in which by law a peace officer of this state may arrest a person without a warrant, or having a warrant for the arrest of a person accused of a crime or public offense when the person otherwise may escape from this state, the peace officer may direct any other peace officer in this state, by telegraph, to arrest the person, who must be designated by name or description or both.

Source:

R.C. 1895, § 7939; R.C. 1899, § 7939; R.C. 1905, § 9747; C.L. 1913, § 10583; R.C. 1943, § 29-0526; S.L. 1985, ch. 151, § 25.

29-05-27. How an order by wire executed — Procedure.

An order by a police officer directing other peace officers in the state to make an arrest may be directed generally to any of such officers and executed by the officer receiving it. The officer executing any such order shall take into the officer’s custody the person designated therein and shall detain that person upon such order for such length of time as is necessary for the officer directing the arrest to reach the place of detention by the ordinary course and means of travel, or until sooner demanded by an officer having a warrant for the arrest of such person.

Source:

R.C. 1895, § 7940; R.C. 1899, § 7940; R.C. 1905, § 9748; C.L. 1913, § 10584; R.C. 1943, § 29-0527.

29-05-28. Summons against corporation. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

29-05-29. Form of summons. [Repealed]

Superseded by N.D.R.Crim.P., Rules 4, 58.

29-05-30. Service of summons against corporation. [Repealed]

Superseded by N.D.R.Crim.P., Rule 4.

29-05-31. Uniform traffic complaint and summons.

There is established a uniform complaint and summons that may be used in cases involving violations of statutes or ordinances. The use of a uniform complaint and summons must comply with the North Dakota Rules of Criminal Procedure and be in substantially the following form:

State of North Dakota County of In Court, ss. Before Hon. ; The undersigned, being sworn, says that, on ________, , First Name Middle Name Last Name Street City State did unlawfully operate a motor vehicle upon a public highway, namely , N E S W of and did then and there commit the following offense: Location City MPH in MPH Zone All in violation of N.D. Century Code Sec. and against the peace and dignity of the state of N.D. Officer LET A WARRANT ISSUE HEREIN Sworn to and subscribed before me on , . Judge State’s Attorney DESCRIPTION OF DEFENDANT AND VEHICLE Mo. Day Yr. Race Sex Wt. Ht. Birth date Hair Dr. Lic: State No. Motor Vehicle: PSC Make Reg. No. State Year ICC No. CLAIMED CONDITIONS OF THE VIOLATION SLIPPERY SURFACE Rain Snow Ice DARKNESS Night Fog Snow OTHER TRAFFIC PRESENT Cross Oncoming Pedestrian Same direction IN ACCIDENT Ped. Vehicle Intersection Right angle Head on Rear end Ran off road Other Area: School Rural Business Industrial Residential Highway: 2 Lane 4 Lane 4 Lane Divided Type: : Gravel Dirt OFFENSE CONTRIBUTED MATERIALLY TO ACCIDENT Yes No THE STATE OF NORTH DAKOTA TO THE ABOVE-NAMED DEFENDANT (CITY ORDINANCE OR STATE CRIMINAL TRAFFIC VIOLATION)

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You are summoned to appear at the time and place designated below to answer to the charge made against you.

_________

_________

Appearance

Before: Municipal Judge District Ct. _________

_________ A.M./P.M.

Location Month Day Year Time

Dated , Officer

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PROMISE TO APPEAR

I consent and promise to appear at the time and place specified in the above summons, the receipt of a copy of which is acknowledged, and I expressly waive earlier hearing.

Dated , Defendant

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(STATE NONCRIMINAL TRAFFIC VIOLATION)

You are notified of your right to request, within fourteen days of the date of this citation, a hearing concerning the alleged traffic violation. If you do not request a hearing, the bond is deemed forfeited and the violation admitted. If you are requesting a hearing, date and sign the following portion of this citation AND INCLUDE THE BOND NOTED ON THIS CITATION for the alleged violation. Failure to do so may result in the suspension of your operator’s license. You will be notified of the hearing date by the court for the county in which this citation was issued.

REQUEST FOR HEARING

I submit the designated bond and request a hearing on the alleged traffic violation and promise to appear at the time and date specified in the summons issued by the court for the county in which the citation was issued.

Dated , Defendant

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Source:

S.L. 1959, ch. 249, § 1; 1973, ch. 301, § 15; 1979, ch. 187, § 59; 1981, ch. 320, § 71; 1995, ch. 318, § 1; 1999, ch. 51, § 16; 2009, ch. 279, § 3.

Cross-References.

Appendix of forms, see N.D.R.Crim.P., Rule 58.

Notes to Decisions

Sufficiency of Complaint.

Complaint authorized by this section was sufficient notwithstanding fact that it did not carry signature of an officer entitled to administer the oath to the complainant and failed to identify the county where the alleged drunken driving occurred, since the docket entry indicated that the county judge swore the complainant but failed to sign the complaint and judicial notice was taken of fact that town mentioned in complaint was in county where case was heard. State v. Medearis, 165 N.W.2d 688, 1969 N.D. LEXIS 117 (N.D. 1969).

Sufficient Clarity to Apprise of the Offense Charged.

If the defendant feels the complaint provided for under this section does not set forth facts with sufficient clarity to inform him of the offense with which he is charged, he may move to quash. But where defendant fails to move to quash before entering his plea, he waives all objections he might have made to the complaint except those which are also grounds for a motion in arrest of judgment by operation of former N.D.C.C. § 29-14-12 (see now N.D.R.Crim.P., Rule 12). State v. Kreiger, 138 N.W.2d 597, 1965 N.D. LEXIS 109 (N.D. 1965).

29-05-32. Release of information contained in complaint or warrant.

The magistrate who issues a warrant for arrest shall order the information in the complaint and warrant confidential, if the law enforcement officer articulates a reason for the confidentiality that convinces the issuing magistrate that limited confidentiality is necessary for the safety of the law enforcement officer or to enable the warrant to be properly served. The magistrate shall limit the duration of the order to the time of the arrest of the accused and shall exempt law enforcement officers in the performance of official duties.

Source:

S.L. 1995, ch. 319, § 1.

CHAPTER 29-06 Arrest

29-06-01. Arrest defined.

An arrest is the taking of a person into custody in the manner authorized by law to answer for the commission of an offense.

Source:

C. Crim. P. 1877, § 113; R.C. 1895, § 7912; R.C. 1899, § 7912; R.C. 1905, § 9720; C.L. 1913, § 10556; R.C. 1943, § 29-0601.

29-06-02. Who may make an arrest.

An arrest may be made:

  1. By a peace officer, under a warrant;
  2. By a peace officer, without a warrant; or
  3. By a private person.

Source:

C. Crim. P. 1877, § 144; R.C. 1895, § 7913; R.C. 1899; § 7913; R.C. 1905, § 9721; C.L. 1913, § 10557; R.C. 1943, § 29-0602.

Cross-References.

Arrest warrant or summons upon complaint, N.D.R.Crim.P., Rule 4.

Notes to Decisions

Arrest Under Warrant.

Officers were acting lawfully under N.D.C.C. § 29-06-02 when executing a federal arrest warrant, and defendant made no contrary showing. Therefore, the contraband yielded was admissible against defendant because it was found in a search incident to a valid arrest. State v. Proell, 2007 ND 17, 726 N.W.2d 591, 2007 N.D. LEXIS 11 (N.D. 2007).

Submission to Request of Police.

Where defendant made an illegal turn in his automobile in North Dakota and was unable to be stopped by North Dakota police, who had witnessed the turn, until after the defendant had crossed the state boundary into Minnesota, there was no arrest of defendant in Minnesota where the police, upon stopping defendant, made a request, without any threat of coercion, that defendant return with them to North Dakota and defendant submitted to such request. City of Wahpeton v. Johnson, 303 N.W.2d 565, 1981 N.D. LEXIS 221 (N.D. 1981).

Collateral References.

Misdemeanor, right of peace officer to enter private house or inclosure for purpose of making an arrest without a warrant for a suspected misdemeanor, 76 A.L.R.2d 1432.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.

29-06-03. Officer may summon aid to make arrest.

Any officer making an arrest may summon as many persons orally as the officer deems necessary to aid the officer therein.

Source:

C. Crim. P. 1877, § 115; R.C. 1895, § 7914; R.C. 1899, § 7914; R.C. 1905, § 9722; C.L. 1913, § 10558; R.C. 1943, § 29-0603.

Notes to Decisions

Posse.

No authority exists under North Dakota law permitting a private person to organize a posse. United States v. Hart, 545 F. Supp. 470, 1982 U.S. Dist. LEXIS 14203 (D.N.D. 1982), aff'd, 701 F.2d 749, 1983 U.S. App. LEXIS 29795 (8th Cir. N.D. 1983).

29-06-04. Persons must aid in making arrest.

Every person, when required, shall aid an officer in the making of an arrest.

Source:

R.C. 1895, § 7915; R.C. 1899, § 7915; R.C. 1905, § 9723; C.L. 1913, § 10559; R.C. 1943, § 29-0604.

29-06-05. Foreign peace officer in fresh pursuit may arrest in state.

Any member of a duly organized state, county, or municipal law enforcement unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit of a person in order to arrest the person on the ground that the person is believed to have committed a felony, misdemeanor, or traffic violation in such other state, shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county, or municipal law enforcement unit of this state to arrest and hold in custody a person on the ground that the person is believed to have committed a felony, misdemeanor, or traffic violation in this state.

Source:

S.L. 1939, ch. 133, § 1; R.C. 1943, § 29-0605; S.L. 1991, ch. 345, § 1.

Notes to Decisions

Delay in Arraignment.

Delay in arraignment is regarded as a factor to be considered under the totality of the circumstances in determining whether a statement is involuntary and therefore inadmissible under the due process clause; delay, by itself, did not make the defendant’s statements inadmissible where the statements made during the delay were only additional to clarify the main confession made shortly after his arrest. State v. Newnam, 409 N.W.2d 79, 1987 N.D. LEXIS 342 (N.D. 1987).

29-06-05.1. Foreign officer providing transportation for law enforcement purposes.

Any member of a duly organized state, county, or municipal law enforcement unit of another state of the United States who enters this state to perform an assigned duty of transporting persons in legal custody for law enforcement purposes has the same authority to transport persons in legal custody as any member of any duly organized state, county, or municipal law enforcement unit of this state if a reciprocal right to transport persons in legal custody is extended to North Dakota peace officers in the peace officer’s state or local jurisdiction.

Source:

S.L. 1991, ch. 345, § 2.

29-06-05.2. Federal law enforcement officer — Authority to make arrests.

  1. “Federal agent” means an employee of the federal bureau of investigation; the federal drug enforcement administration; the bureau of alcohol, tobacco, firearms and explosives; the homeland security investigations unit of the department of homeland security; the bureau of Indian affairs police; the United States marshals service; or the United States customs and border protection who is authorized to arrest, with or without a warrant, any individual for a violation of the United States Code and carry a firearm in the performance of the employee’s duties as a federal law enforcement officer.
  2. A federal agent has the same authority and immunity as a peace officer in this state when making an arrest for a nonfederal crime if any of the following exist:
    1. The federal agent has reasonable grounds to believe that a felony offense was committed and the individual arrested committed the offense.
    2. The federal agent is rendering assistance to a peace officer in an emergency or at the request of the peace officer.
    3. The federal agent is working as a part of a task force composed of North Dakota peace officers and federal law enforcement officers.
  3. Any agreement entered under this section relating to reciprocal jurisdiction between a public agency and a tribal government must be made pursuant to chapter 54-40.2.

Source:

S.L. 1993, ch. 332, § 1; 2007, ch. 281, § 1; 2015, ch. 237, § 1, effective August 1, 2015; 2017, ch. 366, § 3, effective February 23, 2017; 2019, ch. 269, § 1, effective August 1, 2019; 2021, ch. 253, § 1, effective August 1, 2021.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 237, S.L. 2015 became effective August 1, 2015.

29-06-06. Hearing before local magistrate and order thereon.

  1. If an arrest is made in this state by an officer of another state in accordance with the provisions of section 29-06-05, the officer, without unnecessary delay, shall take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful, the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state, or shall admit the person to bail for such purpose. If the magistrate determines that the arrest was unlawful, the magistrate shall discharge the person arrested.
  2. Notwithstanding the provisions of chapter 29-30.3 and subsection 1, a person arrested for a misdemeanor or traffic violation pursuant to section 29-06-05 may voluntarily return to the foreign state without a hearing before a magistrate.

Source:

S.L. 1939, ch. 133, § 2; R.C. 1943, § 29-0606; S.L. 1991, ch. 345, § 3.

29-06-07. Definition of fresh pursuit.

As used in section 29-06-05, the term “fresh pursuit” shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed or who is reasonably suspected of having committed a felony, misdemeanor, or traffic violation. It also shall include the pursuit of a person suspected of having committed a supposed felony, misdemeanor, or traffic violation, though no felony, misdemeanor, or traffic violation has been actually committed, if there is reasonable ground for believing that a felony, misdemeanor, or traffic violation has been committed. Fresh pursuit, as the term is used in this chapter, shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.

Source:

S.L. 1939, ch. 133, § 5; R.C. 1943, § 29-0607; S.L. 1991, ch. 345, § 4.

29-06-08. When arrest made for felony, misdemeanor, or infraction.

An arrest for a felony, misdemeanor, or infraction may be made on any day and at any time of the day or night.

Source:

C. Crim. P. 1877, § 116; R.C. 1895, § 7916; R.C. 1899, § 7916; R.C. 1905, § 9724; C.L. 1913, § 10560; R.C. 1943, § 29-0608; S.L. 1971, ch. 314, § 1; 1975, ch. 106, § 328.

Notes to Decisions

Entry of Residence.

North Dakota Supreme Court agrees with other courts that a warrant supported by probable cause, regardless of whether it is a felony or misdemeanor warrant, provides a law officer authority to enter the residence of the person named in the warrant in order to execute the warrant. Therefore, a motion to suppress was improperly granted based on the entry into a residence to serve a misdemeanor warrant; consent was not required for entry. State v. Schmidt, 2015 ND 134, 864 N.W.2d 265, 2015 N.D. LEXIS 132 (N.D. 2015).

29-06-09. How arrest made.

An arrest is made by an actual restraint of the person of the defendant or by the defendant’s submission to the custody of the person making the arrest.

Source:

C. Crim. P. 1877, § 117; R.C. 1895, § 7917; R.C. 1899, § 7917; R.C. 1905, § 9725; C.L. 1913, § 10561; R.C. 1943; § 29-0609.

Cross-References.

Freedom of members of state guard from arrest while on duty, see § 37-01-11.

Notes to Decisions

Objective Test.

Reasonable person in defendant’s situation would have concluded he was under arrest when he was removed from the automobile by police; a reasonable person, found in an automobile smelling of anhydrous ammonia with an abundance of drug paraphernalia in plain sight, would not feel free to exit the car, much less leave the crime scene and this fact was reinforced by the presence of three officers on the scene, two of whom were exclusively focused on defendant as he was removed from the vehicle. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Courts objectively examine the totality of the circumstances to determine whether an arrest occurred; the proper, objective test asks whether circumstances existed that would have caused a reasonable person to conclude he was under arrest and not free to leave. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Although a police officer never told defendant that she was under arrest, when the officer handcuffed defendant after finding what was believed to be methamphetamine, a reasonable person would have assumed that defendant was under arrest; the search of defendant’s purse and her person was incident to that arrest. State v. Woinarowicz, 2006 ND 179, 720 N.W.2d 635, 2006 N.D. LEXIS 181 (N.D. 2006).

29-06-10. Restraint in an arrest is limited.

A person who is arrested may not be subjected to unnecessary or unreasonable force, nor to any greater restraint than is necessary for the person’s detention.

Source:

C. Crim. P. 1877, § 118; R.C. 1895, § 7918; R.C. 1899, § 7918; R.C. 1905, § 9726; C.L. 1913, § 10562; R.C. 1943, § 29-0610.

29-06-11. Warrant must be shown.

If the person making an arrest is acting under the authority of a warrant, the person shall inform the defendant to that effect and shall show the warrant, if required.

Source:

C. Crim. P. 1877, § 119; R.C. 1895, § 7919; R.C. 1899, § 7919; R.C. 1905, § 9727; C.L. 1913, § 10563; R.C. 1943, § 29-0611.

29-06-12. Officer must obey warrant in making arrest.

An officer making an arrest in obedience to a warrant shall proceed with the person arrested as commanded in the warrant, or as otherwise provided by law.

Source:

R.C. 1895; § 7920; R.C. 1899, § 7920; R.C. 1905, § 9728; C.L. 1913, § 10564; R.C. 1943, § 29-0612.

29-06-13. When defendant resists, force necessary may be used to make arrest.

If, after notice of intention to arrest the defendant, the defendant either flees or forcibly resists, the officer may use all necessary means to effect the arrest.

Source:

C. Crim. P. 1877, § 120; R.C. 1895; § 7921; R.C. 1899, § 7921; R.C. 1905; § 9729; C.L. 1913, § 10565; R.C. 1943, § 29-0613.

Notes to Decisions

Burden of Proof.

Plaintiff who alleged police officers were liable for assault and battery had the burden of proving that the force used by the officers to effect plaintiff’s arrest was unnecessary; the fact the officers’ force resulted in injury more serious than contemplated or intended by the officers was not controlling. Habiger v. City of Fargo, 905 F. Supp. 709, 1995 U.S. Dist. LEXIS 20073 (D.N.D. 1995).

Liability for Damages.

A law enforcement officer has the statutory authority to pursue a person who flees from an arrest; however, in conducting that pursuit, the officer and his employer will be held accountable and be subject to liability, for damages incurred as a result of the pursuit, if the officer’s conduct constitutes gross negligence. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

Necessity of Using Force.

A peace officer, lawfully attempting to take a violator into custody, is under no obligation to retreat or retire to avoid the necessity of using force. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Presumption in Favor of Officer.

The presumption is always in favor of the correct performance of his duty by an officer. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Standard of Liability.

To determine the appropriate standard of liability for police pursuits under this section, the court is guided by N.D.C.C. §§ 32-12.1-03 and 32-12.1-04, and N.D.C.C., ch. 39-09. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

In making an arrest, an officer is under no obligation to retreat, but has the legal right to press forward and accomplish the arrest; the duty of law enforcement officers to apprehend violators of the law must be balanced with a duty of care to the general public. Jones v. Ahlberg, 489 N.W.2d 576, 1992 N.D. LEXIS 158 (N.D. 1992).

29-06-13.1. Resisting peace officer. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

29-06-14. Officer may break door.

An officer may break open any door or window of a dwelling house to execute a warrant of arrest, or to make such arrest for a felony without a warrant, as is provided in section 29-06-15, if, after notice of the officer’s authority and purpose, the officer is refused admittance.

Source:

C. Crim. P. 1877, §§ 121, 124; R.C. 1895, §§ 7922, 7924; R.C. 1899, §§ 7922, 7924; R.C. 1905, §§ 9730, 9732; C.L. 1913, §§ 10566, 10568; R.C. 1943, § 29-0614.

Notes to Decisions

Constitutionality.

The supreme court of North Dakota declared this section to be unconstitutional because it violated the fourth amendment of the United States Constitution by permitting the warrantless, nonconsensual entry into a suspect’s home in the absence of exigent circumstances to make a routine felony arrest. State v. Nagel, 308 N.W.2d 539, 1981 N.D. LEXIS 318 (N.D. 1981).

Entry of Residence.

North Dakota Supreme Court agrees with other courts that a warrant supported by probable cause, regardless of whether it is a felony or misdemeanor warrant, provides a law officer authority to enter the residence of the person named in the warrant in order to execute the warrant. Therefore, a motion to suppress was improperly granted based on the entry into a residence to serve a misdemeanor warrant; consent was not required for entry. State v. Schmidt, 2015 ND 134, 864 N.W.2d 265, 2015 N.D. LEXIS 132 (N.D. 2015).

Failure to Knock and Announce.

Because officer did not have probable cause to follow defendant suspected of driving while intoxicated into defendant’s house, officer’s entry without knocking and announcing his authority and purpose violated this subsection. City of Bismarck v. Glass, 581 N.W.2d 474, 1998 ND App 1, 1998 N.D. App. LEXIS 1 (N.D. Ct. App. 1998).

Law Reviews.

For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see84 N.D. L. Rev. 419 (2008).

29-06-15. Arrest without warrant — Peace officer — Federal agent.

  1. A law enforcement officer, without a warrant, may arrest a person:
    1. For a public offense, committed or attempted in the officer’s presence and for the purpose of this subdivision, a crime must be deemed committed or attempted in the officer’s presence when what the officer observes through the officer’s senses reasonably indicates to the officer that a crime was in fact committed or attempted in the officer’s presence by the person arrested.
    2. When the person arrested has committed a felony, although not in the officer’s presence.
    3. When a felony in fact has been committed, and the officer has reasonable cause to believe the person arrested to have committed it.
    4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.
    5. For the public offenses, not classified as felonies and not committed in the officer’s presence as provided for under section 29-06-15.1.
    6. On a charge, made upon reasonable cause, of driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages.
    7. For the offense of violating a protection order under section 14-07.1-06, an order prohibiting contact under section 12.1-31.2-02, or for an assault involving domestic violence under section 14-07.1-11.
    8. On a charge, made upon reasonable cause, of being under the influence of volatile chemical vapors in violation of section 19-03.1-22.1.
  2. A federal agent, without a warrant, may arrest a person if all of the following circumstances exist:
    1. The officer is on duty.
    2. One or more of the following situations exist:
      1. The person commits an assault or other crime, defined and punishable under chapter 12.1-17, against the officer or against any other person in the presence of the officer.
      2. The officer has reasonable cause to believe that a crime, as defined in paragraph 1, has been committed and reasonable cause to believe that the person to be arrested has committed it.
      3. The officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person to be arrested has committed it.
      4. The officer has received positive information from an authoritative source that a peace officer holds a warrant for the person’s arrest.
  3. If a law enforcement officer has reasonable cause to believe an individual has violated a lawful order of a court of this state which requires the individual to participate in the twenty-four seven sobriety program authorized in sections 54-12-27 through 54-12-31, the law enforcement officer may immediately take the individual into custody without a warrant. An individual taken into custody under this subsection may not be released on bail or on the individual’s personal recognizance unless the individual has made a personal appearance before a magistrate.

Source:

C. Crim. P. 1877, § 123; R.C. 1895, § 7923; R.C. 1899, § 7923; R.C. 1905, § 9731; C.L. 1913, § 10567; R.C. 1943, § 29-0615; S.L. 1957, ch. 216, § 1; 1957 Supp., § 29-0615; S.L. 1967, ch. 258, § 1; 1969, ch. 91, § 4; 1981, ch. 345, § 1; 1983, ch. 82, § 62; 1983, ch. 177, § 2; 1985, ch. 360, § 1; 1987, ch. 179, § 2; 1989, ch. 177, § 20; 1997, ch. 148, § 4; 1999, ch. 68, § 3; 2003, ch. 48, § 27; 2009, ch. 134, § 2; 2011, ch. 238, § 1; 2013, ch. 301, § 3; 2015, ch. 237, § 2, effective August 1, 2015; 2019, ch. 269, § 2, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 237, S.L. 2015 became effective August 1, 2015.

Cross-References.

Driving under influence of intoxicants prohibited, see § 39-08-01.

Notes to Decisions

Probable Cause.

In a case in which defendant appealed from a district court's criminal judgment and order denying his motion to suppress, the Supreme Court concluded that there was sufficient evidence to reach probable cause to arrest for the offense of actual physical control occurring at the time defendant's vehicle crashed into an electrical box. Sufficient evidence of intoxication also existed. City of Bismarck v. Weisz, 2018 ND 49, 907 N.W.2d 409, 2018 N.D. LEXIS 43 (N.D. 2018).

“Charge” Includes Oral Accusation.

The term “charge”, within the statute authorizing an arrest without a warrant on a charge, made on reasonable cause, of the commission of a felony, does not mean a formal written charge presented to the proper authority, but includes an oral charge or accusation made to a peace officer. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

A “charge” within the terms of a statute authorizing arrest without warrant on a charge, made on reasonable cause, of the commission of a felony, does not mean “a formal written charge presented to proper authority” but includes an oral charge or accusation made to a peace officer. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

The arrest on an oral charge of an owner of a place of business which had accepted a check drawn on a bank in which the defendant had no account, was proper since such arrest was made on a charge, based upon reasonable cause, of the commission of a felony by the defendant. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

Driving Under Influence of Alcohol.

Subsection 6 of this section (now subdivision (1)(f)) was specific and was enacted later than former N.D.C.C. § 29-06-16 (now N.D.C.C. § 29-06-08), so that it controlled and allowed officer to make night arrest without warrant for driving under the influence, even though conditions of such former section were not met. City of Minot v. Knudson, 184 N.W.2d 58, 1971 N.D. LEXIS 159 (N.D. 1971).

Pursuant to subsection 6 of this section (now subdivision (1)(f)), reasonable cause for arrest was established where petitioner’s speech was slurred, he walked unsteadily, he had trouble responding to officer’s questions, his eyes were glazed and bloodshot, and he had a strong odor of alcohol about him. Smestad v. Ellingson, 191 N.W.2d 799, 1971 N.D. LEXIS 109 (N.D. 1971).

Where defendant’s vehicle changed lanes and speed several times without apparent reason, defendant had difficulty producing driver’s license and fell against arresting officer who smelled alcohol on defendant’s breath, officer had sufficient grounds to arrest defendant, without a warrant, for driving under the influence. Clairmont v. Hjelle, 234 N.W.2d 13, 1975 N.D. LEXIS 119 (N.D. 1975).

Subdivision (1)(f) of this section permits probable cause warrantless arrests for D.U.I., but does not expressly condone such arrests in the home. Patzner v. Burkett, 779 F.2d 1363, 1985 U.S. App. LEXIS 25801 (8th Cir. N.D. 1985).

Facts supported the police officer’s probable cause determination where an off-duty deputy sheriff reported a suspicious vehicle being driven in the dark without the use of headlights; the facts and circumstances within the arresting officer’s knowledge were sufficient to lead a person of reasonable caution to believe an offense had been committed where the arresting officer observed driver’s vehicle parked in the middle of the alley with the driver lying in the seat with a strong odor of alcohol pervading the vehicle. Obrigewitch v. Dir., N.D. DOT, 2002 ND 177, 653 N.W.2d 73, 2002 N.D. LEXIS 227 (N.D. 2002).

Entry in Anticipation of an Offense.

In the absence of reasonable knowledge that a crime is being committed, an officer may not enter a place without warrant to observe the occupants in the anticipation that an offense may be committed for which an arrest might be made. State v. Govan, 123 N.W.2d 110, 1963 N.D. LEXIS 106 (N.D. 1963).

Misdemeanor Not in Presence of Officer.

An officer is authorized to arrest for a misdemeanor not committed in his presence only with a warrant. State v. Ritter, 472 N.W.2d 444, 1991 N.D. LEXIS 121 (N.D. 1991).

Offense in Presence of Officer.

Where an arrest is based on commission of an offense in the presence of the arresting officer, subsequent acquittal invalidates the arrest and removes the basis for revocation of a vehicle operator’s license under N.D.C.C., ch. 39-20. Colling v. Hjelle, 125 N.W.2d 453 (N.D. 1963), decided prior to the amendment of N.D.C.C. § 29-06-15(1).

Police officer trained in detection of marijuana from its burning odor had reasonable cause to believe that person arrested had committed a public offense where he smelled burning marijuana from open window of automobile, and subsequent warrantless search and seizure of marijuana in automobile was justified. State v. Binns, 194 N.W.2d 756, 1972 N.D. LEXIS 117 (N.D. 1972).

Odor of marijuana emanating from vehicle stopped for traffic violation gave police officer who was trained in narcotics identification probable cause to make an arrest, and the search of the driver immediately preceding the arrest was a valid search incident to the arrest. State v. Overby, 1999 ND 47, 590 N.W.2d 703, 1999 N.D. LEXIS 51 (N.D. 1999), overruled in part, State v. K.V. (In the Interest of K.V.), 2021 ND 79, 959 N.W.2d 577, 2021 N.D. LEXIS 81 (N.D. 2021).

Defendants, who were 20 years old, were properly arrested for underage drinking where police were in the open doorway of an apartment, did not enter, but questioned the defendants who admitted to being under age and consuming alcohol. City of Fargo v. Steffan, 2002 ND 26, 639 N.W.2d 482, 2002 N.D. LEXIS 16 (N.D. 2002).

Police had probable cause to arrest defendant at the time of the pocket search and, when viewed objectively, had placed him under arrest by the time of the search; the search was therefore justified as a search performed incident to the arrest. Upon seeing the methamphetamine paraphernalia in plain view in the automobile, the officers had probable cause to believe that some drug-related crime was either committed or attempted; therefore, police had the authority to arrest the responsible parties without a warrant, and the trial court did not err in denying defendant’s motion to suppress the evidence. State v. Linghor, 2004 ND 224, 690 N.W.2d 201, 2004 N.D. LEXIS 364 (N.D. 2004).

Evidence was sufficient to convict defendant of preventing arrest or discharge of other duties where defendant created a substantial risk of bodily injury to the sheriff and “substantial force” was required to overcome defendant’s resistance to effecting the arrest and the sheriff was acting lawfully under N.D.C.C. § 29-06-15 when he arrested defendant, as the defendant was committing disorderly conduct in the sheriff’s presence. Defendant swung at the sheriff one or two times and when the sheriff told defendant he was placing him under arrest, defendant put up both fists and swung and grazed the side of the sheriff’s face, and, after defendant was wrestled to the ground, he was trying to kick the sheriff. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Preventing Arrest.

Where defendant provided no transcript on appeal, as required by N.D.R.App.P., Rule 10(b), from convictions for preventing arrest and related offenses, the appellate court had no basis to evaluate the sufficiency of the evidence and, in response to defendant’s argument that his arrest was not a lawful warrantless arrest under N.D.C.C. § 29-06-15, had to infer that defendant failed to provide evidence supporting the defense of unlawful police conduct under N.D.C.C. § 12.1-08-02. State v. Mathre, 2004 ND 149, 683 N.W.2d 918, 2004 N.D. LEXIS 277 (N.D. 2004).

Probable Cause.

An arrest without a warrant is valid when a law enforcement officer has probable cause to believe that the arrested person committed a felony. State v. Indvik, 382 N.W.2d 623, 1986 N.D. LEXIS 270 (N.D. 1986).

Probable cause to support a warrantless arrest exists when the facts and circumstances within a police officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed. State v. Indvik, 382 N.W.2d 623, 1986 N.D. LEXIS 270 (N.D. 1986).

To establish probable cause, it is not necessary that the officer possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred. State v. Hensel, 417 N.W.2d 849, 1988 N.D. LEXIS 6 (N.D. 1988).

Where police officer was told by a resident that someone was sleeping in a parked car with the engine running, and upon investigation the officer found defendant asleep in his car, smelling of alcohol, confused and with bloodshot eyes, surrounded by beer cans, one open, the officer had probable cause to arrest defendant, since the officer could reasonably conclude that defendant was in actual physical control of a vehicle while under the influence of alcohol under subdivision 1 f. State v. Hensel, 417 N.W.2d 849, 1988 N.D. LEXIS 6 (N.D. 1988).

Police officers could reasonably have believed there was probable cause to arrest plaintiff for trespassing and were immune from claim under 42 USCS § 1983, where they advised plaintiff he was not privileged to be in university student lounge and gave him notice he was trespassing. Wishnatsky v. Bergquist, 550 N.W.2d 394, 1996 N.D. LEXIS 156 (N.D.), cert. denied, 519 U.S. 895, 117 S. Ct. 240, 136 L. Ed. 2d 169, 1996 U.S. LEXIS 5876 (U.S. 1996).

Location of the ignition key was an issue that arose after the arrest of motorist for suspected driving while under the influence of alcohol, and probable cause for arrest must be based on what was known at the time of the arrest; because probable cause to arrest existed without establishing the location of the key, the motorist was properly arrested. Obrigewitch v. Dir., N.D. DOT, 2002 ND 177, 653 N.W.2d 73, 2002 N.D. LEXIS 227 (N.D. 2002).

The police officer was authorized under this section to make a warrantless arrest of the defendant, who had lost consciousness at a restaurant drive-up window behind the wheel of his running motor vehicle, walked unsteadily and failed field sobriety tests; the officer had probable cause to believe the defendant was in actual physical control of a motor vehicle while under the influence of alcohol or another substance. State v. Waltz, 2003 ND 197, 672 N.W.2d 457, 2003 N.D. LEXIS 214 (N.D. 2003).

Denial of suppression motion was affirmed because officers had probable cause to arrest an individual lying in the back seat of a vehicle for physical obstruction of government function, preventing arrest and burglary, where, during the investigation of a burglary the officers observed defendant and his companion in the vehicle and observed gloves, a hammer and a crowbar, and the occupants refused to open the vehicle and the officers had a locksmith open the vehicle. The officers’ use of a locksmith to open the vehicle to effectuate the arrest of the occupants was eminently reasonable under the Fourth Amendment, seizure of the evidence would have been justified under the plain view doctrine or as incident to a lawful arrest, and the officers’ use of caution in obtaining a search warrant before proceeding further and their subjective beliefs as to the existence or nonexistence of reasonable suspicion and probable cause were of no moment. State v. Washington, 2007 ND 138, 737 N.W.2d 382, 2007 N.D. LEXIS 138 (N.D. 2007).

Police officer had the required N.D.C.C. § 29-06-15 probable cause, also known as “reasonable suspicion,” to investigate a report of the motorist being in actual physical control of a vehicle while under the influence of intoxicating liquor and, thus, the officer did not violate the motorist’s rights under the Fourth Amendment, U.S. Const. amend. IV, made applicable to the states through the Fourteenth Amendment, U.S. Const. amend. XIV, when the officer made a warrantless arrest of the motorist. The officer observed that the motorist had bloodshot eyes, slow speech, mush mouth, and heard the motorist admit that the motorist had been drinking. Engstrom v. N.D. DOT, 2011 ND 235, 807 N.W.2d 602, 2011 N.D. LEXIS 227 (N.D. 2011).

Public Offense in Presence of Officer.

No warrant for arrest on charge of being intoxicated in public place was necessary where public offense was committed in arresting officer’s presence; in prosecution for resisting arrest arising out of officer’s attempts to arrest accused for public intoxication, it was unnecessary to determine legality of complaint charging him with public intoxication since that offense was public offense, officers had reasonable grounds to believe that offense was being committed by accused in their presence, and resistance to arrest was with force and violence. State v. Moe, 151 N.W.2d 310, 1967 N.D. LEXIS 126 (N.D. 1967).

Reasonable Cause.

Where a detective was informed by a citizen, who identified himself, that the defendant was carrying a concealed weapon, the detective had reasonable cause to believe the defendant had committed a felony under subsection 3 of this section (now subdivision 1c), and arrest of defendant without a warrant was lawful, and subsequent search and seizure of concealed gun was also valid. State v. Chaussee, 138 N.W.2d 788, 1965 N.D. LEXIS 96 (N.D. 1965).

Reasonable cause to believe that juvenile had committed felony existed where police, acting on informant’s tip, observed juvenile apparently selling marijuana cigarettes to informant who had been given marked five dollar bill and told to make purchase. Hardy v. Cunningham, 167 N.W.2d 508, 1969 N.D. LEXIS 99 (N.D. 1969).

Arrest without warrant was made upon reasonable cause in view of investigation which had established, inter alia, that large portion of money stolen consisted of one dollar bills, defendant had made a number of purchases with one dollar bills, and two of merchants from whom he had made purchases each had one bill with serial numbers matching number of stolen bill. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

Arrest without warrant cannot be made upon mere suspicion. State v. Gagnon, 207 N.W.2d 260, 1973 N.D. LEXIS 164 (N.D. 1973).

The term “reasonable cause” is synonymous with the term “probable cause”. State v. Salhus, 220 N.W.2d 852, 1974 N.D. LEXIS 215 (N.D. 1974); State v. Frye, 245 N.W.2d 878, 1976 N.D. LEXIS 135 (N.D. 1976).

Where defendant was arrested by a sheriff’s deputy after the deputy received a telephone call from a bank president who stated that defendant had presented for deposit a large check drawn on an Alaska account, then immediately made a large withdrawal from the North Dakota bank on the strength of such deposit, arousing the suspicions of bank personnel who checked and discovered that there were no funds in the Alaska account, the sheriff had reasonable cause to arrest defendant for theft without a warrant, pursuant to former subdivision 3 (see now subdivision 1c) of this section. State v. Frye, 245 N.W.2d 878, 1976 N.D. LEXIS 135 (N.D. 1976).

Where robbery was committed, police found defendant jogging north of the robbery location shortly afterwards, defendant was nervous and frightened, his answers to questions were irrational, and there were large bulges plainly visible in his pockets which he stated contained money, the totality of the circumstances gave the officers reasonable cause to believe defendant had committed the robbery. State v. Arntz, 286 N.W.2d 478, 1979 N.D. LEXIS 330 (N.D. 1979).

Police officer had reasonable cause to believe that a felony had been committed by the defendant, and had authority to make a warrantless arrest of defendant for a felony not committed in officer’s presence, where police officer had reasonable cause to believe that defendant was in possession of a stolen credit card in violation of section 12.1-23-02 and that the street value or thieves’ market value of the credit card was of an amount to classify the illegal possession as a class C felony. State v. McCabe, 315 N.W.2d 672, 1982 N.D. LEXIS 230 (N.D. 1982).

An arrest may be made without a warrant when a law enforcement officer has probable cause to believe that the arrested person committed a felony; probable cause to support a warrantless arrest exists when the facts and circumstances within a police officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Unreasonable Search.

Officers who discover a misdemeanor and make an arrest may not continue an unreasonable search after the arrest is made. State v. Govan, 123 N.W.2d 110, 1963 N.D. LEXIS 106 (N.D. 1963).

Warrantless Entry of Home.

A combination of probable cause and exigent circumstances is required to permit the warrantless, nonconsensual entry into a suspect’s home to make a felony arrest; the imminent destruction of evidence of a crime may be a sufficient exigent circumstance to permit the warrantless, nonconsensual entry into a home to make an arrest; however, when destruction of evidence is the exigent circumstance, there must be more than a mere belief that such destruction is probable, coupled with the fact that the suspects know or will soon become aware that the police are on their trail, and that the entry is the least intrusive which, under the circumstances, is possible. State v. Nagel, 308 N.W.2d 539, 1981 N.D. LEXIS 318 (N.D. 1981).

Officers’ testimony about the feared destruction of evidence, upon which they based their right to enter the home without a warrant, was nothing more than speculation and did not demonstrate exigent circumstances so as to overcome the presumption of unreasonableness that attaches to all warrantless home entries. State v. Ackerman, 499 N.W.2d 882, 1993 N.D. LEXIS 87 (N.D. 1993).

Collateral References.

Misdemeanor, right of peace officer to enter private house or inclosure for purpose of making an arrest without a warrant for a suspected misdemeanor, 76 A.L.R.2d 1432.

Horizontal gaze nystagmus test: use in impaired driving prosecution, 60 A.L.R.4th 1129.

Law Reviews.

For Article: Section 1983 Actions in North Dakota: An Empirical Study of Agency Policies and Law Enforcement and Correctional Officers, see84 N.D. L. Rev. 419 (2008).

29-06-15.1. Arrest of nonresident traffic violator.

A police officer at the scene of a traffic accident may arrest without a warrant any driver of a vehicle who is a nonresident of this state and who is involved in the accident when based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of title 39 in connection with the accident, and if the officer has reasonable and probable grounds to believe the person will disregard a written promise to appear in court.

Whenever any person is arrested under the provisions of this section, the person must be taken without unnecessary delay before the proper magistrate.

Source:

S.L. 1957, ch. 216, § 2; R.C. 1943, 1957 Supp., § 29-06151.

Law Reviews.

Viewpoint: Atwater in North Dakota: Soccer Moms Beware, Sometimes, 78 N.D. L. Rev. 467 (2002).

29-06-16. Arrest at night — Reasonable cause. [Repealed]

Repealed by S.L. 1971, ch. 314, § 2.

29-06-17. Officer shall state authority when arresting without warrant.

When making an arrest without a warrant, the officer shall inform the person to be arrested of the officer’s authority and the cause of the arrest, unless:

  1. The person to be arrested then is engaged in the commission of an offense;
  2. Such person is pursued immediately after the commission of an offense or after an escape;
  3. Such person flees or forcibly resists before the officer has opportunity so to inform the person; or
  4. The giving of such information will imperil the arrest.

Source:

C. Crim. P. 1877, § 126; R.C. 1895, § 7926; R.C. 1899, § 7926; R.C. 1905, § 9734; C.L. 1913, § 10570; R.C. 1943, § 29-0617.

Notes to Decisions

Disorderly Conduct in Presence of Officer.

Where officers apparently believed that the crime of disorderly conduct was committed in the officers’ presence and an officer told the defendant that he was under arrest, the cause of the arrest was obvious and the arrest accordingly was valid; thus, arrest was not a mere pretext upon which to base search which yielded controlled substances. State v. Harris, 286 N.W.2d 468, 1979 N.D. LEXIS 331 (N.D. 1979).

Failure to State Authority.

Warrantless arrest was unlawful where officers did not inform defendant of the cause of his arrest but said only that they were investigating his activities. State v. Gagnon, 207 N.W.2d 260, 1973 N.D. LEXIS 164 (N.D. 1973).

Judging Conduct of Officer.

The conduct of an officer in making an arrest must be weighed in the light of the circumstances under which he acted and not by the incidental results thereof. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Pursuit.

To be in pursuit, this section does not require that police in car have the lights flashing or the siren on; it is the time frame, rather than the mode of pursuit, which is of critical importance in determining whether or not the pursuit exception to officer’s duty to inform of his authority and the cause of the arrest is applicable. State v. Klevgaard, 306 N.W.2d 185, 1981 N.D. LEXIS 297 (N.D. 1981).

Robbery Suspect.

Robbery suspect was sufficiently informed of authority and cause of his arrest where he was pursued immediately after the commission of the offense by officer who was in uniform and who told defendant he was being questioned in connection with a particular robbery. State v. Arntz, 286 N.W.2d 478, 1979 N.D. LEXIS 330 (N.D. 1979).

29-06-18. Arrest by bystander.

An officer may take before a magistrate a person who, while engaged in a breach of the peace, is arrested by a bystander and delivered to the officer.

Source:

C. Crim. P. 1877, § 127; R.C. 1895, § 7927; R.C. 1899, § 7927; R.C. 1905, § 9735; C.L. 1913, § 10571; R.C. 1943, § 29-0618.

29-06-19. Offense committed in presence of magistrate.

When a public offense is committed in the presence of a magistrate, the magistrate, by a verbal or written order, may command any person immediately to arrest the offender, and thereupon may proceed as if the offender had been brought before the magistrate on a warrant of arrest.

Source:

C. Crim. P. 1877, § 128; R.C. 1895, § 7928; R.C. 1899, § 7928; R.C. 1905, § 9736; C.L. 1913, § 10572; R.C. 1943, § 29-0619.

29-06-20. When private person may arrest.

A private person may arrest another:

  1. For a public offense committed or attempted in the arresting person’s presence.
  2. When the person arrested has committed a felony, although not in the arresting person’s presence.
  3. When a felony has been in fact committed, and the arresting person has reasonable grounds to believe the person arrested to have committed it.

Source:

C. Crim. P. 1877, § 129; R.C. 1895, § 7929; R.C. 1899, § 7929; R.C. 1905, § 9737; C.L. 1913, § 10573; R.C. 1943, § 29-0620.

Notes to Decisions

Admitting Commission of Offense.

Where defendant stated that he was then engaged in the commission of a public offense before any arrest or search was made, he might lawfully be arrested by a private person. State v. Shank, 52 N.D. 94, 202 N.W. 128, 1924 N.D. LEXIS 119 (N.D. 1924).

Driving Under Influence of Alcohol.

The trial court did not err in denying defendant’s motion to suppress his DUI arrest when bureau of indian affairs officer observed and pursued defendant weaving, speeding and driving erratically while on the reservation but was unable to stop defendant until he had crossed reservation boundaries, since he had the authority to make a citizen’s arrest and there was no evidence of subterfuge, plot or scheme to purposely evade the law. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Misdemeanor.

A misdemeanor is a public offense. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Police Officer Outside His Jurisdiction.

A police officer acting outside of his jurisdiction is without official capacity and without official power to arrest; however, a police officer acting outside of his jurisdiction has the same power of arrest as does a private citizen. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Public Offense.

As used in this section, the term “public offense” includes misdemeanors. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

Public Offense Committed in Presence of Private Person.

Where private person saw defendant driving a car and was within minutes thereafter informed by a peace officer that defendant’s driver’s license was suspended, private person’s sensory perception alerted her to the fact defendant was driving with a suspended license, and such offense was committed in the presence of the private person. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

In order to have a valid citizen’s arrest for a public offense committed in the citizen’s presence, the public offense must have been committed or attempted in the presence of the private person; with the phrase “in his presence” being liberally construed and “presence” determined by whether or not the private person detected commission of the offense through use of his senses. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

Warrantless Arrest.

A private person’s authority to make a warrantless arrest for a misdemeanor is more limited than that of a police officer, since a police officer may arrest with probable cause, but a private person may arrest only when the misdemeanor is actually committed or attempted in his presence. State v. Littlewind, 417 N.W.2d 361, 1987 N.D. LEXIS 461 (N.D. 1987).

Collateral References.

Private person’s authority to shoot or kill alleged felon in making felony arrest, 32 A.L.R.3d 1078.

29-06-21. Must inform person of cause of arrest.

A private person making an arrest must inform the person to be arrested of the intention to arrest the person, and of the cause of the arrest, unless:

  1. The person to be arrested then is engaged in the commission of an offense;
  2. Such person is pursued immediately after its commission or after an escape;
  3. Such person flees or forcibly resists before the person making the arrest has opportunity to inform the person; or
  4. The giving of such information will imperil the arrest.

Source:

C. Crim. P. 1877, § 130; R.C. 1895, § 7930; R.C. 1899, § 7930; R.C. 1905, § 9738; C.L. 1913, § 10574; R.C. 1943, § 29-0621.

29-06-22. When a private person may break into a building.

A private person, in order to make an arrest when a felony was committed in the arresting person’s presence, as authorized in section 29-06-20, if the person is refused admittance after the person has announced the person’s purpose, may break open a door or window of any building in which the person to be arrested is, or is reasonably believed to be.

Source:

C. Crim. P. 1877, § 131; R.C. 1895, § 7931; R.C. 1899, § 7931; R.C. 1905, § 9739; C.L. 1913, § 10575; R.C. 1943, § 29-0622.

29-06-23. Arrested by private person — Duty — Taken before magistrate.

A private person who has arrested another for the commission of a public offense, without unnecessary delay, shall take the person before a magistrate or deliver the person to a peace officer.

Source:

C. Crim. P. 1877, § 132; R.C. 1895, § 7932; R.C. 1899, § 7932; R.C. 1905, § 9740; C.L. 1913, § 10576; R.C. 1943, § 29-0623.

29-06-24. Offensive weapons taken — Delivery to magistrate.

Any person making a lawful arrest shall take from the person arrested all offensive weapons which the person arrested may have and shall deliver them to the magistrate before whom the person arrested is taken.

Source:

C. Crim. P. 1877, § 133; R.C. 1895, § 7933; R.C. 1899, § 7933; R.C. 1905, § 9741; C.L. 1913, § 10577; R.C. 1943, § 29-0624.

29-06-25. Procedure against person arrested without warrant.

When an arrest is made by a peace officer or a private person without a warrant, the person arrested without unnecessary delay must be taken:

  1. Before the nearest or most accessible magistrate in the county where the arrest is made; or
  2. If there is no magistrate in said county qualified to act, then before the nearest or most accessible magistrate authorized to act for the county where the arrest is made.

A complaint stating the charge against the person arrested must be made before such magistrate, as is provided in rule 5 of the North Dakota Rules of Criminal Procedure.

Source:

R.C. 1895, § 7934; R.C. 1899, § 7934; R.C. 1905, § 9742; C.L. 1913, § 10578; R.C. 1943, § 29-0625; S.L. 1981, ch. 91, § 17.

Notes to Decisions

Delay in Presenting Prisoner.

What amounts to reasonable diligence in presenting a prisoner before a magistrate depends on the peculiar facts of each case. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

Mere delay in taking a defendant arrested without a warrant before a magistrate will not render a confession made in the meantime inadmissible. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

The right of a person arrested without a warrant to be taken before the nearest and most accessible magistrate of the county where he was arrested is not a constitutional right but purely statutory, and where the record establishes that the person was lawfully arrested and taken to the adjacent county, where the offense for which he was arrested was triable, and the following morning was taken before a magistrate who set bail, he is not, after conviction of the offense for which he was arrested, entitled to post-conviction relief on ground that statute was not complied with. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

Three-day delay in taking defendant before a magistrate, although a questionable practice, was not unreasonable since defendant was asked at preliminary hearing whether he had made any confessions or admissions or whether he had been threatened by anyone and he replied in the negative, and since there was no evidence of interrogation or the eliciting of damaging statements. State v. Barlow, 193 N.W.2d 455, 1971 N.D. LEXIS 108 (N.D. 1971).

Accused who was arrested while leaving the scene of crime late on a Sunday night and who appeared before a magistrate on the following day was taken before a magistrate without undue delay. State v. Ankney, 195 N.W.2d 547, 1972 N.D. LEXIS 118 (N.D. 1972).

Legislative Intent.

The intent of this section is to interpose the judgment of an independent magistrate between the judgment of the peace officer or a private person in arresting another person without a warrant and the decision to hold him for preliminary examination or to stand trial. State v. Iverson, 187 N.W.2d 1, 1971 N.D. LEXIS 183 (N.D.), cert. denied, 404 U.S. 956, 92 S. Ct. 322, 30 L. Ed. 2d 273, 1971 U.S. LEXIS 443 (U.S. 1971).

Magistrate in County of Arrest.

Where Indian was arrested on reservation without warrant by deputy sheriff of adjacent county for felony committed in that county and no contention was made that felony was not committed or that officer did not have reasonable grounds to believe that the Indian had committed it, arrest did not deprive Indian of rights under constitution or laws or treaties of United States, and thus he was not entitled to habeas corpus; failure to take Indian before nearest magistrate in county where arrest was made, instead of taking him before magistrate of county in which offense was triable, was not prejudicial and did not entitle Indian to habeas corpus. Fournier v. Roed, 161 N.W.2d 458, 1968 N.D. LEXIS 85 (N.D. 1968).

Magistrate in Nearest County.

Erroneously taking defendant to magistrate in other than nearest county was not prejudicial and did not deprive the court of jurisdiction; in any event, error was waived by guilty plea. State v. Barlow, 193 N.W.2d 455, 1971 N.D. LEXIS 108 (N.D. 1971).

Violation of Section.

A violation of the express terms of this section does not, in itself, entitle a defendant to post-conviction relief in the absence of a showing that he was deprived of a fair trial or was otherwise prejudiced as a result of the error. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

29-06-26. Who may break door to liberate self.

Any person who has lawfully entered a house for the purpose of making an arrest, or who while therein makes an arrest, may break open the door or window thereof, if detained therein, when necessary to exit the house, and an officer may do the same when necessary for the purpose of liberating a person who, acting in the officer’s aid, lawfully enters for the purpose of making an arrest and is detained therein.

Source:

C. Crim. P. 1877, § 122; R.C. 1895, § 7935; R.C. 1899, § 7935; R.C. 1905, § 9743; C.L. 1913, § 10579; R.C. 1943, § 29-0626.

29-06-27. Shoplifting — Arresting person exempt from liability. [Repealed]

Repealed by S.L. 1975, ch. 454, § 6.

CHAPTER 29-06.1 Tribal Arrest Warrants

29-06.1-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Tribal arrest warrant” means any document issued by a court of a tribe in this state which authorizes a peace officer to take custody of a person.
  2. “Tribe” means any of the federally recognized Indian nations, tribes, or bands in this state.

Source:

S.L. 1997, ch. 280, § 1.

29-06.1-02. Arrest with or without warrant.

  1. A peace officer may arrest a person subject to a tribal arrest warrant if presented with the warrant and may arrest a person without a tribal arrest warrant upon probable cause to believe that the person is the subject of such a warrant. An arrest is authorized under this subsection only if the arrest warrant is issued for commission of a crime punishable as a misdemeanor under the applicable tribal ordinance or resolution.
  2. The arrested person must be brought without unnecessary delay before the nearest available district judge.
  3. The district judge shall issue an order continuing custody upon presentation of the tribal arrest warrant or, if the arrest is made without a warrant, upon testimony or affidavit showing probable cause to believe the person is the subject of such a warrant.

Source:

S.L. 1997, ch. 280, § 2.

29-06.1-03. Court appearance.

  1. The district judge shall inform the person appearing under section 29-06.1-02 of the name of the tribe that has subjected the person to an arrest warrant, the basis for the arrest warrant, the right to assistance of counsel, and the right to require a judicial hearing before transfer of custody to the applicable tribal authority.
  2. After being informed by the district judge of the effect of a waiver, the arrested person may waive the right to require a judicial hearing and consent to return to the applicable tribal authority by executing a written waiver in the presence of the judge. If the waiver is executed, the judge shall issue an order to transfer custody under section 29-06.1-04 or, with the consent of the applicable tribal authority, authorize the voluntary return of the person to that authority.
  3. If a hearing is not waived under subsection 2, the district judge shall hold a hearing within three days, excluding weekends and holidays, after the appearance. The arrested person and the state’s attorney of the county in which the hearing is to be held must be informed of the time and place of the hearing. The judge shall release the person upon conditions that will reasonably assure availability of the person for the hearing or direct a law enforcement officer to maintain custody of the person until the time of the hearing. Following the hearing, the judge shall issue an order to transfer custody under section 29-06.1-04 unless the arrested person establishes by clear and convincing evidence that the arrested person is not the person identified in the warrant.
  4. If the judge does not order transfer of custody, the judge shall order the arrested person to be released.

Source:

S.L. 1997, ch. 280, § 3.

29-06.1-04. Order to transfer custody.

  1. A judicial order to transfer custody issued under section 29-06.1-03 must direct a law enforcement officer to take or retain custody of the person until an agent of the applicable tribal authority is available to take custody. If the agent has not taken custody within three days, excluding weekends and holidays, the judge may order the release of the person upon conditions that will assure the person’s availability on a specified date within seven days, excluding weekends and holidays. If the agent has not taken custody within the time specified in the order, the person must be released. Thereafter, an order to transfer custody may be entered only if a new arrest warrant is issued.
  2. The judge in the order transferring custody may authorize the voluntary return of the person with the consent of the applicable tribal authority.
  3. An order to transfer custody is not appealable. An order denying transfer is appealable.

Source:

S.L. 1997, ch. 280, § 4.

CHAPTER 29-07 Preliminary Examinations

29-07-01. Magistrate’s duty — Testimony may be taken. [Repealed]

Superseded by N.D.R.Crim.P., Rules 5, 44.

29-07-01.1. Payment of expenses for defense of indigents — Reimbursement of indigent defense costs and expenses — Indigent defense administration fund — Continuing appropriation.

  1. Lawyers provided to represent indigent persons must be compensated at a reasonable rate to be determined by the commission on legal counsel for indigents. Expenses necessary for the adequate defense of an indigent person prosecuted in district court, other than for a violation of a home rule county’s ordinance, when approved by the commission, must be paid by the state. Expenses necessary for the adequate defense of an indigent person prosecuted for violation of a home rule county’s ordinance must be paid by the home rule county. Expenses necessary for the adequate defense of an indigent person prosecuted in municipal court, when approved by the judge, must be paid by the city in which the alleged offense took place. The city shall also pay the expenses in any matter transferred to district court pursuant to section 40-18-06.2 or 40-18-15.1, in any appeal taken to district court from a judgment of conviction in municipal court pursuant to section 40-18-19, and in an appeal or postconviction matter seeking relief from a conviction resulting from violation of a municipal ordinance. A defendant requesting representation by counsel at public expense, or for whom counsel provided at public expense without a request is considered appropriate by the court, shall submit an application for indigent defense services. For an application for indigent defense services in the district court, a nonrefundable application fee of thirty-five dollars must be paid at the time the application is submitted. The district court may extend the time for payment of the fee or may waive or reduce the fee if the court determines the defendant is financially unable to pay all or part of the fee. If the application fee is not paid before disposition of the case, the fee amount must be added to the amount to be reimbursed under this section. Application fees collected under this subsection must be forwarded for deposit in the indigent defense administration fund established under subsection 4.
  2. A defendant for whom counsel is provided at public expense, subject to this subsection, shall reimburse the state, home rule county, or city such sums as the state, home rule county, or city expends on the defendant’s behalf.
    1. At the time counsel is provided for a defendant, the court shall advise the defendant of the defendant’s potential obligation to reimburse the appropriate governmental entity the amounts expended on behalf of the defendant.
    2. Unless it finds that there is no likelihood that the defendant is or will be able to pay attorney’s fees and expenses, the court, in its judgment of conviction, and in any order or amended judgment entered following a revocation or other postjudgment proceeding, shall order the defendant to reimburse the presumed amount of indigent defense costs and expenses, as determined by the commission, and shall notify the defendant of the right to a hearing on the reimbursement amount. If the defendant or prosecutor requests a hearing within thirty days of receiving notice under this subdivision, the court shall schedule a hearing at which the actual amount of attorney’s fees and expenses must be shown. In determining the amount of reimbursement and method of payment, the court shall consider the financial resources of the defendant and the nature of the burden that reimbursement of costs and expenses will impose.
    3. A defendant who is required to reimburse indigent defense costs and expenses and who is not willfully in default in that reimbursement may at any time petition the court to waive reimbursement of all or any portion of the attorney’s fees and expenses. If the court is satisfied that reimbursement of the amount due will impose undue hardship on the defendant or the defendant’s immediate family, the court may waive reimbursement of all or any portion of the amount due or modify the method of payment.
  3. The attorney general, the state’s attorney of the home rule county, or the prosecuting attorney of the city in which the alleged offense took place, if reimbursement has not been received, shall seek civil recovery of any amounts expended on the defendant’s behalf anytime the attorney general, state’s attorney, or city attorney determines the person for whom counsel was appointed may have funds to repay the state, home rule county, or city within six years of the date such amount was paid on that person’s behalf. A person against whom civil recovery is sought under this subsection is entitled to all exemptions accorded to other judgment debtors. The attorney general, state’s attorney, or prosecuting attorney may contract with a private sector collection agency for assistance in seeking recovery of such funds. Before referring the matter to a collection agency, the state’s attorney shall notify the person who is the subject of the collection action.
  4. The indigent defense administration fund is a special fund in the state treasury. The state treasurer shall deposit in the fund all application fees collected under subsection 1. All moneys in the indigent defense administration fund are appropriated on a continuing basis to the commission on legal counsel for indigents to be used in the administration of the indigent defense system.

Source:

S.L. 1967, ch. 259, § 2; 1981, ch. 319, § 47; 1987, ch. 73, § 14; 1987, ch. 375, § 2; 1987, ch. 392, § 1; 1987, ch. 393, § 1; 1991, ch. 326, § 110; 1993, ch. 132, §§ 4, 5; 1997, ch. 134, § 2; 2001, ch. 299, § 2; 2005, ch. 538, §§ 7, 8; 2007, ch. 119, § 15; 2009, ch. 112, § 4; 2011, ch. 239, § 1; 2013, ch. 53, § 2.

Cross-References.

Preliminary examination, cost of transcript and related costs, see N.D.R.Crim.P., Rule 5.1(c).

North Dakota legal counsel for indigents rules, see Administrative Rule 18, North Dakota Court Rules Annotated.

Notes to Decisions

Constitutionality.

This section is construed to permit an indigent defendant, who is to repay for his court-appointed attorney, to claim all the exemptions from process granted to other judgment debtors, and where repayment for court-appointed attorney is made a condition of probation, there must be a finding that probationer is capable, but unwilling, to repay before probation may be revoked for failure to repay; as construed, this section is not unconstitutionally vague, does not violate the due process or equal protection clauses of the federal constitution, does not have an unconstitutional chilling effect on a defendant’s right to counsel, and it is constitutional. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Condition of Probation.

Repayment for court-appointed attorney may be made a condition of probation; however, there must be a finding that probationer is capable, but unwilling, to repay before probation may be revoked for failure to repay. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Discretion of Court.

Where attorney who represented indigent submitted bill to court for $1,496.34, and nearly all attorney’s time was spent in preparation, not actual trial time, itemization of time lacked specificity, and approval was not obtained prior to employment of investigator, court did not abuse its discretion in approving only $821.55 of bill. Baer v. O'Keefe, 235 N.W.2d 885, 1975 N.D. LEXIS 139 (N.D. 1975).

Misdemeanor Prosecution.

Judge of county court with increased jurisdiction trying even a misdemeanor, has duty under this section to go forward to determine whether or not defendant is indigent or needy, and upon determination that he is needy, to appoint counsel at public expense. State v. Heasley, 180 N.W.2d 242, 1970 N.D. LEXIS 140 (N.D. 1970).

Postconviction Proceedings.

Where petitioner pled guilty to driving under suspension and driving without liability insurance in the municipal court, the Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in the municipal courts. By conditioning the payment of expenses for an appeal or post-conviction matter on the matter being taken from a conviction resulting from violation of a municipal ordinance, N.D.C.C. § 29-07-01.1 implies the appeal or post-conviction matter is not taken from a judgment of conviction in municipal court. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

Collateral References.

Validity, construction, and application of state recoupment statutes permitting state to recover counsel fees expended for benefit of indigent criminal defendants, 39 A.L.R.4th 597.

29-07-02. Waiver of examination. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-07-03. Examination of witnesses.

If the accused waives preliminary examination, the state’s attorney may cause the testimony of any witness or witnesses to be taken in writing as is provided by law, with the same force and effect as if such examination had not been waived. Such testimony must be returned by the magistrate to the district court of the magistrate’s county as in other cases.

Source:

C. Crim. P. 1877, § 136; R.C. 1895, § 7950; R.C. 1899, § 7950; R.C. 1905, § 9758; S.L. 1909, ch. 1, § 1; C.L. 1913, § 10595; R.C. 1943, § 29-0703.

29-07-04. Magistrate must allow accused counsel. [Repealed]

Superseded by N.D.R.Crim.P., Rules 5, 44.

29-07-05. The preliminary examination. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-07-06. Change of place of hearing — Procedure.

Whenever a person accused of a public offense is brought before a municipal judge for examination, and, at any time before the examination is commenced, the person files with the municipal judge an affidavit stating that by reason of the bias or prejudice of the municipal judge the person believes a fair or impartial examination cannot be had before the municipal judge, the municipal judge shall transfer the action, and all the papers therein, including a certified copy of the municipal judge’s docket entries, to a district judge serving the county. The state’s attorney, or assistant state’s attorney, in the same manner and for the same reasons as the defendant, may obtain a transfer of the action from the municipal judge before whom the action was commenced, or from the district judge to whom it has been transferred on the application of the state, in which event it must be transferred to another district judge designated by the presiding judge of the judicial district. The place of examination cannot be changed more than once by each party under this section.

Source:

S.L. 1887, ch. 82, § 1; R.C. 1895, § 7953; R.C. 1899, § 7953; R.C. 1905, § 9761; C.L. 1913, § 10598; S.L. 1915, ch. 177, § 1; 1925 Supp., § 10598; R.C. 1943, § 29-0706; S.L. 1959, ch. 268, § 7; 1981, ch. 320, § 72; 1991, ch. 326, § 111.

DECISIONS UNDER PRIOR LAW

Transfer of Criminal Action.

Upon the filing of a proper affidavit, a justice must transfer a criminal action to another justice. The statute is mandatory in its terms and leaves no discretion with the justice. State v. Weltner, 7 N.D. 522, 75 N.W. 779, 1898 N.D. LEXIS 80 (N.D. 1898).

29-07-07. Adjournment — Three days limit. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-07-08. Disposition of accused on adjournment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-07-09. Commitment for examination. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-07-10. Summoning of witnesses. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.

29-07-11. Procedure on examination — Reading complaint. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-12. How witnesses examined. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-13. Witnesses kept separate — Exclusion during the examination of any witness.

The magistrate may exclude all witnesses who have not been examined. The magistrate also may cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

Source:

R.C. 1895, § 7958; R.C. 1899, § 7958; R.C. 1905, § 9766; C.L. 1913, § 10603; R.C. 1943, § 29-0713.

29-07-14. Persons not excluded.

The magistrate holding a preliminary hearing, upon the request of the defendant, may exclude from the examination every person except the magistrate’s clerk, the prosecutor and the prosecutor’s counsel, the attorney general of the state, the state’s attorney of the county, the defendant and the defendant’s counsel, and such other person as the defendant may designate, and the officer having the defendant in custody, but such exclusion, and the extent thereof, is within the discretion of the court.

Source:

R.C. 1895, § 7959; R.C. 1899, § 7959; R.C. 1905, § 9767; C.L. 1913, § 10604; R.C. 1943, § 29-0714.

Notes to Decisions

Conflicting Interests.

North Dakota’s policy of openness in judicial proceedings may at times conflict with a defendant’s right to a fair trial. Such a situation may arise where a motion is made to close a preliminary examination pursuant to this section, and when it does, the trial court must seek to best accommodate these conflicting interests. Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

Discretion of Court.

Judge did not abuse his discretion in ordering the closing of the preliminary examination as provided in this section where the defendant, with the concurrence of the state’s attorney, requested the closing order and the judge’s stated reasons for ordering the closing were that in the conduct of the examination the court was authorized to receive and consider evidence that may otherwise be inadmissible at the time of trial and evidence that would be offered at the examination was of such a nature that to permit it to come within the general knowledge of a prospective juror would be highly prejudicial to the defendant and deny him his right to a fair trial by an impartial jury. Dickinson Newspapers v. Jorgensen, 338 N.W.2d 72, 1983 N.D. LEXIS 372 (N.D. 1983).

Preliminary examinations should generally be open to the public; however, if, upon motion by the defendant and a hearing thereon, the magistrate finds and determines that evidence inadmissible at the trial on the issue of guilt or innocence will be admissible at the preliminary examination, and as a result there is a substantial likelihood that such evidence will interfere with the defendant’s right to a fair and impartial jury, then departure from the policy of openness to the public will be justified. Dickinson Newspapers v. Jorgensen, 338 N.W.2d 72, 1983 N.D. LEXIS 372 (N.D. 1983).

Procedure.

For case setting out the proper procedure to be followed by the trial courts in their consideration of motions to close preliminary examinations, see Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

When Preliminary Hearing Should Be Closed.

A preliminary examination should not be closed unless the trial court finds there are no reasonable alternatives to complete closure. Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

In exercising its discretion under this section, a trial court should close a preliminary examination only upon a showing that evidence inadmissible at trial will be offered at the preliminary examination and that as a result there is a substantial likelihood of interference with the defendant’s right to a fair trial. Minot Daily News v. Holum, 380 N.W.2d 347, 1986 N.D. LEXIS 254 (N.D. 1986).

29-07-15. Testimony reduced to writing — Conditions — Payment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-16. Accused may produce witnesses after state concludes testimony. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-17. Keeping and disposition of depositions — Violation is a misdemeanor. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-18. Procedure — Accused discharged. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-19. Costs taxed when prosecution malicious. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-20. Accused held to answer. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-21. If offense not bailable defendant committed. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-22. When offense bailable. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-23. When bail not taken. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-24. Commitment — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-25. Form of commitment. [Repealed]

Superseded by N.D.R.Crim.P., Rules 5.1, 58.

29-07-26. Magistrate must deliver papers to district court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-27. Charge investigated by magistrate if corporation appears. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-28. Appearance by corporation — Hearing — Certificate of magistrate — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-29. Return of certificate of probable cause — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-30. Information or indictment against corporation without preliminary hearing. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-31. Effect of failure by corporation to answer summons. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

29-07-32. Record of magistrate to be kept on docket. [Repealed]

Superseded by N.D.R.Crim.P., Rule 5.1.

CHAPTER 29-08 Bail

29-08-01. Bail defined.

Bail is the security required and given for the release of a person who is in the custody of the law that the person will appear before any court in which the person’s appearance may be required and that the person will do, or refrain from doing, such things as are stipulated in the bail bond or recognizance referred to in this chapter as the undertaking.

Source:

R.C. 1943, § 29-0801.

Cross-References.

Release from custody, prior to trial, see N.D.R.Crim.P., Rule 46.

29-08-02. Admission to bail defined — Delegation of authority by magistrate.

Admission to bail is the order of a competent court or magistrate that the defendant be discharged from actual custody upon an undertaking with sufficient sureties for the defendant’s appearance. Any magistrate or municipal judge in this state may designate, authorize, and appoint an additional person or persons to arrange, receive, and approve bail in cases involving traffic violations.

Source:

R.C. 1895, § 8443; R.C. 1899, § 8443; R.C. 1905, § 10253; C.L. 1913, § 11111; R.C. 1943, § 29-0802; S.L. 1969, ch. 300, § 1.

Notes to Decisions

Minimum Period of Detention.
—Dismissal of Charge.

Where a DUI arrestee was not allowed to post bail until after a minimum period of detention, and considering the chronology and circumstances of defendant’s arrest, dismissal of the charge was appropriate without a showing of actual prejudice. City of Fargo v. Berntson, 505 N.W.2d 747, 1993 N.D. LEXIS 164 (N.D. 1993).

—Unauthorized.

Municipal court’s blanket order for “minimum periods of detention, prior to release pending trial” for all DUI arrestees was not authorized by rule or by statute, and was unlawful. City of Fargo v. Stutlien, 505 N.W.2d 738, 1993 N.D. LEXIS 203 (N.D. 1993); City of Fargo v. Berntson, 505 N.W.2d 747, 1993 N.D. LEXIS 164 (N.D. 1993).

Release on Bond.
—Not Required.

Municipal bond schedule providing that person arrested for DUI or Leaving the Scene of an Accident be held in custody from the time of their arrest until the judge reviewed the case the next morning did not violate this section; although this section vests the municipal judge or magistrate with discretion to set up a bond schedule and avoid the usual procedures in DUI cases, the judge is not required to do so. City of Devils Lake v. Corrigan, 1999 ND 16, 589 N.W.2d 579, 1999 N.D. LEXIS 18 (N.D. 1999).

—Required.

Absent extraordinary circumstances, a person arrested for DUI must be released on bond to go with a responsible adult; where officer believed he was required to jail defendant for detoxification, and told her boyfriend any effort to get her released on bond would be futile for eight hours, defendant’s mandatory jail detention was unlawful. City of Jamestown v. Erdelt, 513 N.W.2d 82, 1994 N.D. LEXIS 60 (N.D. 1994).

—Traffic Violations.

This section allows a magistrate or a municipal judge to appoint persons to “arrange, receive, and approve bail” for traffic violations, and former N.D.C.C. § 29-08-21 (superseded by N.D.R.Crim.P., Rule 46) allowed the court to treat the forfeiture of bail as a final disposition of a traffic violation. Together, these sections allowed for the expedited release of individuals arrested for traffic violations without triggering the usual criminal procedures, but did not permit municipal courts to authorize “minimum periods of detention, prior to release pending trial.” City of Fargo v. Stutlien, 505 N.W.2d 738, 1993 N.D. LEXIS 203 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

“Not Admitted to Bail.”

The words “not admitted to bail”, as used in section 8679, R.C. 1899, meant that the accused was under commitment for want of bail. State ex rel. Adams v. Larson, 12 N.D. 474, 97 N.W. 537, 1903 N.D. LEXIS 48 (N.D. 1903).

29-08-03. Taking of bail defined.

The taking of bail consists of the acceptance by a competent court or magistrate, or a legally authorized officer, of an undertaking with sufficient sureties for the appearance of the defendant in person, according to the terms of the undertaking, or that the sureties will pay to the state a specified sum.

Source:

R.C. 1895, § 8444; R.C. 1899, § 8444; R.C. 1905, § 10254; C.L. 1913, § 11112; R.C. 1943, § 29-0803.

29-08-04. When bail must be taken. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-05. Bail upon charge of murder in first degree. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-06. Bail on appeal after conviction. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-07. Amount of bail upon charge of larceny of livestock. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-08. Admission to bail before conviction. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-09. Admission to bail after conviction. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-10. Bail in cases of illness. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-11. Bail taken — Order of discharge. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-12. Qualification of bail — Justification. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-13. Fidelity and surety company may act as sureties on criminal undertaking for bail. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-14. Deposit of money or bonds as bail. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-15. Bail after deposit of money or bonds. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-16. Notice to state’s attorney.

Whenever admission to bail is a matter of discretion, the court, magistrate, or officer to whom application therefor is made shall require reasonable notice thereof to be given to the state’s attorney of the county.

Source:

R.C. 1895, § 8452; R.C. 1899, § 8452; R.C. 1905, § 10262; C.L. 1913, § 11120; R.C. 1943, § 29-0816.

29-08-17. Who may take bail. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-18. Form of undertaking of bail. [Repealed]

Superseded by N.D.R.Crim.P., Rules 46, 58.

29-08-19. Who may make order admitting to bail on appeal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-20. Defendant may be arrested by bail. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-21. Forfeiture of bail — Excuse — Disposition of traffic violation cases. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-22. Increase or decrease of bail — Notice to state’s attorney.

The court in which a criminal action is pending, or a judge thereof, for good cause and with or without notice to the defendant, may increase or reduce the amount of bail. If the defendant applies for a reduction of the amount of bail, reasonable notice of such application must be given to the state’s attorney of the county.

Source:

R.C. 1943, § 29-0822.

29-08-23. Additional security may be required by court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-24. Action on undertaking — Defects not fatal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-25. When surety may be discharged. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-08-26. Bail pending extradition.

Pending the determination of habeas corpus proceedings, a person taken into custody under a warrant issued by the governor of this state upon the requisition of the governor of another state or territory at the discretion of the court or judge may be admitted to bail by the court or judge issuing the writ of habeas corpus.

Source:

S.L. 1955, ch. 209, § 1; R.C. 1943, 1957 Supp., § 29-0826.

Collateral References.

Right of extraditee to bail after issuance of governor’s warrant and pending final disposition of habeas corpus claim, 13 A.L.R.5th 118.

29-08-27. Jumping bail a misdemeanor. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

29-08-28. Bail — Defendant’s property.

Except as otherwise provided in this section, moneys deposited as bail are the property of the defendant, whether deposited by the defendant or by a third person on the defendant’s behalf. If bail moneys are deposited by a third person, the person must be notified at the time of deposit that the moneys may be paid to the defendant upon final disposition of the case or applied to any fine, cost, or restitution imposed on the defendant. The person may direct, subject to further order of the judge, that the deposited moneys be released to that person upon final disposition of the case. When moneys are accepted by the court as bail, the judge shall order that the moneys received be deposited with the clerk of court. The clerk shall retain the moneys until the final order of the court disposing of the case. Upon release of the moneys held by the clerk, the moneys must be paid to the defendant or pursuant to the defendant’s written direction or, unless otherwise ordered by the judge, as directed by a person who deposited moneys on behalf of the defendant. In the case of a conviction, the judge may order the moneys to be applied to any fine, cost, or restitution imposed on the defendant. The balance of the deposit, if any, must be paid to the defendant. Moneys deposited with the court or clerk of court as bail are exempt from garnishment, attachment, or execution.

Source:

S.L. 1999, ch. 291, § 2.

CHAPTER 29-09 Methods of Prosecution

[Superseded by North Dakota Rules of Civil Procedure Repealed by S.L. 2011, ch. 237, § 2; and S.L. 1971, ch. 315, § 2]

29-09-01. Public offenses, how prosecuted. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-09-02. Prosecution on information — In what cases. [Repealed]

Repealed by S.L. 2011, ch. 237, § 2.

29-09-03. Prosecution on information without waiting for term of court. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 19.

29-09-04. Appearance in court — Chambers — Plea. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 19.

29-09-05. Right to file information when defendant discharged at preliminary examination. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-09-06. State’s attorney shall inquire into charges. [Repealed]

Repealed by S.L. 2011, ch. 237, § 2.

29-09-07. Procedure when no information filed. [Repealed]

Repealed by S.L. 2011, ch. 237, § 2.

29-09-08. Grand jury defined — Formation — Functions. [Repealed]

Repealed by S.L. 1971, ch. 315, § 2.

Note.

For present provisions, see section 29-10.1-01.

29-09-09. When grand jury may be called. [Repealed]

Repealed by S.L. 1971, ch. 315, § 2.

Note.

For present provisions, see section 29-10.1-02.

29-09-10. Request and petition filed fifteen days before term. [Repealed]

Repealed by S.L. 1971, ch. 315, § 2.

Note.

For present provisions, see section 29-10.1-04.

29-09-11. Petition for grand jury — Petitioners — Number — Session. [Repealed]

Repealed by S.L. 1971, ch. 315, § 2.

Note.

For present provisions, see section 29-10.1-04.

CHAPTER 29-10 Grand Jury [Repealed]

[Repealed by S.L. 1971, ch. 315, § 2]

Note.

For present provisions, see chapter 29-10.1.

CHAPTER 29-10.1 Grand Jury

29-10.1-01. Grand jury defined — Formation — Functions.

A grand jury must consist of not less than eight nor more than eleven persons of the county possessing the qualifications of jurors prescribed by law, and impaneled and sworn to inquire into all crimes or public offenses against laws of this state triable within the county and, if the evidence warrants, present them to the district court by written indictment.

Source:

S.L. 1971, ch. 315, § 1.

Collateral References.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

29-10.1-02. When grand jury may be called.

No grand jury may be drawn, summoned, or convened in any county within this state unless the district judge thereof shall so direct by a written order filed with the clerk of the court in the county wherein the said grand jury is required to attend. Any judge of the district court for any county must direct, in the manner herein provided, that a grand jury be drawn and summoned to attend whenever:

  1. The judge deems the attendance of a grand jury necessary for the due enforcement of the laws of the state;
  2. The state’s attorney of the county wherein the court is to be held, in writing, requests the judge so to do; or
  3. A petition in writing requesting the same is presented to the judge, signed by qualified electors of the county equal in number to at least twenty-five percent of the total vote cast in the county for the office of governor of the state at the last general election, but the number of signatures required may not be fewer than two hundred twenty-five nor exceed five thousand.

Source:

S.L. 1971, ch. 315, § 1; 2013, ch. 174, § 2.

29-10.1-03. Judge to summon grand jury.

Upon presentment of the request of petition, the judge shall promptly summon and convene the grand jury.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-04. Petition for grand jury — Petitioners — Number — Session.

The petition for a grand jury prescribed by section 29-10.1-02 must be verified on information and belief by at least three of the petitioners. The formation of a grand jury under this chapter may not be invalidated should it appear or be proven after the grand jury has been summoned that any of the petitioners were not qualified electors or that the petition was not signed by the required number of qualified electors. No grand jury may remain in session in excess of ten calendar days, unless the judge by written order filed with the clerk of the court extends the session as may be necessary. Unless extended, the grand jury must be discharged at the close of the tenth day of its session. Saturdays, legal holidays, and days in recess must be excluded in computing the duration of the initial or extended session.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-05. Challenges by state, when, and causes.

  1. The state may challenge the panel of a grand jury or an individual grand juror at any time before the grand jury is impaneled and sworn.
  2. A challenge to the panel may be asserted by the state upon the ground only that the grand jurors were not selected according to law.
  3. A challenge to an individual grand juror may be asserted by the state upon the ground only that the person is not a qualified juror.

Source:

S.L. 1971, ch. 315, § 1.

DECISIONS UNDER PRIOR LAW

Grounds for Challenge.

The legislative enumeration of grounds of challenge to an individual juror, or to the panel, were exclusive. State v. Walla, 57 N.D. 726, 224 N.W. 211, 1929 N.D. LEXIS 320 (N.D. 1929).

Collateral References.

Exclusion of attorneys from jury list in criminal cases, 32 A.L.R.2d 890.

29-10.1-06. Challenge may be oral or written.

A challenge to the panel or to an individual grand juror may be oral or in writing and must be tried to the court.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-07. Challenge allowed or disallowed — Entry by clerk.

The court shall allow or disallow a challenge to the panel of a grand jury or to an individual grand juror, and the clerk shall enter its decision upon the minutes.

Source:

S.L. 1971, ch. 315, § 1.

DECISIONS UNDER PRIOR LAW

Speculation by Court.

The statute did not permit the court to speculate that a juror may have acted conscientiously and fairly even in spite of his interest and state of mind. State v. Johnson, 55 N.D. 437, 214 N.W. 39, 1927 N.D. LEXIS 57 (N.D. 1927).

29-10.1-08. Challenge allowed — Procedure.

Whenever a challenge to the panel or to an individual grand juror is allowed, the court shall make an order to the jury commission to summon without delay a sufficient number of persons to complete or to form a grand jury.

Source:

S.L. 1971, ch. 315, § 1.

DECISIONS UNDER PRIOR LAW

Presence of Disqualified Juror.

The presence of a disqualified grand juror vitiated the whole panel. People v. Wintermute, 46 N.W. 694, 1 Dakota 63, 1875 Dakota LEXIS 15 (Dakota 1875).

29-10.1-09. Jury discharged if challenge to panel allowed.

If a challenge to the panel is allowed, the grand jury must be discharged in which event the judge may order another grand jury to be summoned and convened.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-10. Challenge to panel after indictment presented.

At any time prior to pleading to the indictment, the person against whom an indictment has been found and presented may move the court to dismiss the indictment upon the ground that the jurors were not selected or impaneled according to law.

Source:

S.L. 1971, ch. 315, § 1; 1977, ch. 288, § 1.

Notes to Decisions

Grounds for Challenging Indictment.

This section is not the only ground upon which defendant may challenge an indictment; assertion that the evidence heard by a grand jury was not sufficient to support an indictment serves as a limited ground for challenging the indictment under N.D.C.C. §§ 29-10.1-26 and 29-10.1-33. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Introduction of Evidence.

The refusal to permit the introduction of evidence to support a motion to set aside an indictment on one of the grounds specified in this section was prejudicial error. State v. Rother, 56 N.D. 875, 219 N.W. 574, 1928 N.D. LEXIS 211 (N.D. 1928).

29-10.1-11. Court to appoint foreman and vice foreman.

When the grand jury is completed, the court shall appoint one of the jurors to be foreman and another to act as foreman in case of the absence of the foreman.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-12. Oath of grand jurors. [Repealed]

Superseded by N.D.R.Ct. 6.10.

29-10.1-13. Court shall charge grand jury — Duty of court to advise.

After the grand jury is impaneled and sworn, the court shall charge the jurors concerning the offenses that may be considered by them or that are likely to come before them, and concerning their duties as prescribed by law. The court, upon request of the grand jurors and at all reasonable times, shall advise them regarding their duties.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-14. Retirement of grand jurors.

After the charge by the court, the grand jurors shall retire to a private room which must be provided for by the county commissioners and perform their duties as prescribed by law.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-15. Clerk appointment by grand jurors — Duty.

The grand jury, unless a competent reporter is appointed, shall appoint a member of the jury as clerk, who shall preserve minutes of all the proceedings of the jurors, and exhibits presented, except of the votes of the individual members, and of the evidence given before them. Upon the conclusion of the grand jury session, all exhibits must be placed in the custody of the state’s attorney unless otherwise directed by the court.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-16. Reporter — Transcript.

  1. Unless otherwise directed by the court, the grand jury shall appoint a competent reporter who must be sworn and who shall record in shorthand or stenotype notes, the testimony given in matters before the grand jury. Whenever an indictment is returned, and if so directed by the court, the reporter shall cause the testimony to be transcribed.
  2. Whenever the court directs the testimony to be transcribed, the reporter shall certify and file with the clerk of court the original and sufficient copies of the transcript so as to provide a copy for each person indicted and one for the state’s attorney or prosecutor. The reporter shall complete the certification of the transcript within thirty days after the date of the order unless a different period of time is specified by the court.
  3. All exhibits presented to the grand jury must be placed in the custody of the state’s attorney or prosecutor unless otherwise directed by the court.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-17. Selection of jurors.

Before accepting a person drawn as a grand juror, the court must be satisfied that such person is duly qualified to act as such. A person drawn as a juror may be excused for good cause by the court before the person is sworn.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-18. Expenses.

All necessary expenses of the grand jury incurred in its official capacity must be paid by the state out of funds appropriated to the supreme court.

Source:

S.L. 1971, ch. 315, § 1; 1985, ch. 361, § 1.

29-10.1-19. Subpoenas.

The grand jury may issue subpoenas or subpoenas duces tecum to any witness within the state. Subpoenas may also be issued by the state’s attorney or prosecutor in the manner provided in the statutes or North Dakota Rules of Criminal Procedure.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-20. Filling vacancies.

Whenever the membership of a grand jury is reduced in number for any reason, after the grand jury has been impaneled, the judge may direct that the vacancy be filled, and shall so direct if necessary to maintain the minimum number required, in the same manner as the original members were selected. No person selected as a grand juror to fill a vacancy may vote on any matter upon which evidence has been taken prior to the time of the person’s selection.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-21. General duties of grand jury.

Each grand jury impaneled within any county shall inquire into offenses against the criminal laws of the state alleged to have been committed within that county. The alleged offenses may be brought to the attention of the grand jury by the court or by any state’s attorney or the state’s attorney’s designee. The state’s attorney or the state’s attorney’s designee shall inform the grand jury of the alleged offense, the identity of the alleged offender, and the state’s attorney or state’s attorney’s designee’s action or recommendation. As to any offense committed while the grand jury is in session, the state’s attorney or prosecutor may proceed with a preliminary examination or the filing of an information, as provided for by law, and prosecute the charge, and, under such conditions, the grand jury is not required to inquire into such offense. The presentment of an indictment against a person does not preclude the prosecution of such person for the same offense upon a criminal complaint or information previously filed with the court.

Source:

S.L. 1971, ch. 315, § 1; 2013, ch. 174, § 3.

29-10.1-22. Subjects of grand jury inquiry.

Whenever directed by the district court, the grand jury shall inquire into:

  1. The condition and management of the public prisons in the county; and
  2. Willful and corrupt felonious misconduct in office of public officials of every description in the county.

Source:

S.L. 1971, ch. 315, § 1; 2013, ch. 174, § 4.

29-10.1-23. Grand jurors entitled to access to prisons and public records.

Grand jurors are entitled to free access, at all reasonable times, to public prisons, and to the examination, without charge, of all public records in the county.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-24. Member must report known offense and must give evidence.

If a member of a grand jury knows or has reason to believe that a public offense which is triable in the county has been committed, the member shall declare such fact to the member’s fellow jurors, who shall investigate the same. In such investigation, the grand juror may be sworn as a witness.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-25. Oath or affirmation to witness. [Repealed]

Superseded by N.D.R.Ct. 6.10.

29-10.1-26. Reception of evidence.

  1. Subject to subsection 2, the grand jury shall receive only evidence which is:
    1. Given by witnesses produced and sworn before the grand jury;
    2. Furnished by writings, material objects, or other things perceivable through the senses; or
    3. Contained in a deposition or transcript that is admissible under the North Dakota Rules of Criminal Procedure.
  2. The grand jury shall receive only evidence that would be admissible over objection at the trial of a criminal action, but the fact the evidence inadmissible at the trial was received by the grand jury does not render the indictment void if sufficient competent evidence to support the indictment was received by the grand jury.

Source:

S.L. 1971, ch. 315, § 1.

Notes to Decisions

Evidence Inadmissible at Trial.

Indictment was not rendered void by fact that grand jury may have received evidence that would not be admissible at trial where there was sufficient competent evidence received by the grand jury to support the indictment. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Grounds for Challenging Indictment.

Assertion that the evidence heard by a grand jury was not sufficient to support an indictment serves as a limited ground for challenging the indictment; proper procedure to challenge order of trial court denying motion to dismiss the indictment when insufficiency of evidence is asserted is by application to supreme court for a writ of certiorari, and not to raise the issue on appeal from a judgment of conviction. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Standard of Proof.

The grand jury’s function is to determine whether or not an accusation, not a conviction, is warranted; proof beyond a reasonable doubt that the proposed subject of the indictment committed the offense is not a required standard to be met before an indictment may be found. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

“Accused.”

“Accused”, as used in repealed section authorizing grand jurors to hear evidence for accused, meant a person arrested or charged with a crime who had not yet had preliminary hearing or criminal information filed against him and did not include defendants who were merely targets of grand jury investigation and had not been arrested, charged or held to answer. State v. Perry, 182 N.W.2d 860, 1971 N.D. LEXIS 152 (N.D. 1971).

Collateral References.

Effect of hearsay evidence upon validity of indictment, 37 A.L.R.3d 612.

Validity of indictment where grand jury heard incompetent witness, 39 A.L.R.3d 1064.

29-10.1-27. Exculpatory evidence.

The grand jury shall weigh all the evidence submitted to it, and when it has reason to believe that there is exculpatory evidence within its reach, it shall order the evidence to be produced, and for that purpose may require the state’s attorney or prosecutor to issue process for the production of such evidence.

Source:

S.L. 1971, ch. 315, § 1.

Notes to Decisions

Duty of Grand Jury.

Grand jury does not have a duty to pursue or exhaust every possible defense which may be available to a defendant if his case goes to trial. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Duty of State’s Attorney.

This section imposes an implicit duty upon the state’s attorney or prosecutor to play an active role in facilitating the purpose of this section. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Exculpatory Evidence.

As used in this section, exculpatory evidence is evidence which would preclude issuing an indictment, and does not include anything which might work in favor of or benefit the defendant in his defense at trial. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Omission of Evidence.

Omission of police reports regarding suspect’s alibi from the grand jury’s consideration did not constitute a violation of this section requiring a dismissal of the indictment where the presence of the police reports would not necessarily have precluded the grand jury from arriving at a decision to indict the suspect, and the grand jury had testimony before it which was the same as that reflected in the police reports and which tended to exculpate the suspect. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

29-10.1-28. Who may be present during sessions of grand jury.

No person may be present at a session of the grand jury, other than the witnesses under examination, the judge while giving advice requested by the grand jury, the state’s attorney or prosecutor, the attorney general, and the reporter, or interpreter, if any. No person other than the grand jurors may be present while the grand jurors are deliberating or voting, nor may the grand jurors deliberate or vote while any other persons are present. Whenever the grand jury is investigating the state’s attorney or any person connected with the state’s attorney’s office, neither the state’s attorney nor any of the state’s attorney’s assistants or staff may be present before such grand jury during the time of such investigation, except as a witness and, after such appearance as a witness, shall leave the place where the grand jury is in session.

Source:

S.L. 1971, ch. 315, § 1.

Notes to Decisions

Attorney General May Appear.

The attorney general has the right to appear before the grand jury at any time when in his judgment he deems it in the best interests of the state, and each of his assistants has the same right. State ex rel. Miller v. District Court, 19 N.D. 819, 124 N.W. 417, 1910 N.D. LEXIS 5 (N.D. 1910); State v. Heaton, 56 N.D. 357, 217 N.W. 531, 1927 N.D. LEXIS 108 (N.D. 1927); State v. Rodman, 57 N.D. 230, 221 N.W. 25, 1928 N.D. LEXIS 121 (N.D. 1928).

29-10.1-29. Duty of state’s attorney.

The state’s attorney or prosecutor, upon the request of the grand jurors, shall advise them regarding their duties. The state’s attorney or prosecutor, at all reasonable times, may appear before them on the person’s own motion for the purpose of giving the grand jurors information or advice regarding any matter cognizable by them and may interrogate witnesses before them whenever the state’s attorney or prosecutor believes it necessary.

Source:

S.L. 1971, ch. 315, § 1.

Notes to Decisions

Assistant Prosecutor Not Qualified.

An assistant prosecutor appointed by the court to assist the state’s attorney was not qualified to appear before the grand jury. State v. Johnson, 55 N.D. 437, 214 N.W. 39, 1927 N.D. LEXIS 57 (N.D. 1927).

Collateral References.

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.

29-10.1-30. Secrecy of things said and votes — Limited disclosure by certain persons and under certain conditions.

  1. Every member of a grand jury shall keep secret whatever that member or any other grand juror may have said, or in what manner that member or any other grand juror may have voted on a matter before the jurors.
  2. Matters other than the deliberations and vote of any grand juror may be disclosed by the state’s attorney, prosecutor, or attorney general solely in the performance of the person’s duties.
  3. Otherwise a juror, attorney, interpreter, reporter, or public servant, having official duties in or about a grand jury room or proceeding, may disclose matters occurring before the grand jury only when so directed by the court pursuant to section 29-10.1-31.
  4. A witness may not disclose any matter about which the witness is interrogated, or any proceedings of the grand jury had in the witness’s presence, except to the witness’s attorney or when so directed by the court, until an indictment is filed and the accused person is in custody.

Source:

S.L. 1971, ch. 315, § 1; 1977, ch. 290, § 1.

29-10.1-31. When juror may disclose testimony upon order of the court.

A member of a grand jury or its reporter or interpreter may be required by any court to disclose the testimony of a witness examined before the grand jury for the purpose of impeachment of the witness before the court, or to disclose the testimony given before them by any person, upon a charge against the person for perjury in giving the person’s testimony, or upon the person’s trial in a criminal prosecution.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-32. Grand juror cannot be questioned.

A grand juror cannot be questioned for anything the grand juror may say, or any vote the grand juror may give, in a session of the grand jury, relative to a matter legally pending before the jurors, except upon a charge against the grand juror for perjury in giving the person’s testimony to the person’s fellow jurors.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-33. When indictment ought to be found.

The grand jurors shall find an indictment charging a person with the commission of an offense when all the evidence before them, taken together, is such as in their judgment would warrant a conviction by the trial jury.

Source:

S.L. 1971, ch. 315, § 1.

Notes to Decisions

Standard of Proof.

The grand jury’s function is to determine whether or not an accusation, not a conviction, is warranted; proof beyond a reasonable doubt that the proposed subject of the indictment committed the offense is not a required standard to be met before an indictment may be found. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

This section does not require proof beyond a reasonable doubt to support an indictment. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

29-10.1-34. Finding indictment — Number of jurors required.

An indictment cannot be found without the concurrence of at least six grand jurors. Whenever so found, it must be endorsed “a true bill” and the endorsement must be signed by the foreman of the grand jury. The names of the witnesses known to the grand jury must be endorsed thereon before the indictment is presented to the court.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-35. Presentment of indictment to court by foreman.

An indictment found by the grand jurors must be presented by the foreman, in their presence, to the court, and must be filed with the clerk.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-36. Persons indicted — How arrested.

Whenever an indictment is found and presented against a person, the proceedings prescribed in chapter 29-12 govern when necessary to secure the person’s appearance before the court.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-37. Jurors to be discharged upon completion of business.

Upon the completion of the business before them, or whenever the court is of opinion that the public interests will not be served by further continuation of their sessions, the grand jurors must be discharged by the court.

Source:

S.L. 1971, ch. 315, § 1.

29-10.1-38. Transcript demand — Waiver of transcript and preliminary examination, when.

Within five days after a first appearance before a magistrate, the person against whom an indictment has been found and presented may make a written demand to the district judge for a copy of the transcript of the testimony given before the grand jury as it relates to that person and the charges against that person. Upon receipt of such written demand, the judge shall issue an appropriate order. If the judge for any reason determines that a copy of a transcript of the testimony cannot be obtained, the person indicted is entitled, but not otherwise, to a preliminary examination, as provided by the statutes or North Dakota Rules of Criminal Procedure for persons otherwise charged with a crime. Under such conditions, the preliminary examination must be had before a judge of the district court serving the county in which the crime was committed or is triable. Failure to make such demand within the time prescribed constitutes a waiver of the right to the transcript or to a preliminary examination.

Source:

S.L. 1971, ch. 315, § 1; 1981, ch. 320, § 73; 1991, ch. 326, § 112.

29-10.1-39. Violation constitutes contempt.

Any person who willfully violates any provision of this chapter is guilty of contempt of court.

Source:

S.L. 1971, ch. 315, § 1; 1993, ch. 89, § 27.

Collateral References.

Holding jurors in contempt under state law, 93 A.L.R.5th 493.

CHAPTER 29-10.2 State Grand Jury

29-10.2-01. Definition.

As used in this chapter, “organized crime” means racketeering, as defined in section 12.1-06.1-01, or any combination or conspiracy of two or more persons to engage in criminal activity as a significant source of income or livelihood, or to violate, aid, or abet the violation of criminal laws relating to prostitution, gambling, loansharking, drug abuse, illegal alcohol or drug distribution, counterfeiting, extortion, or corruption of law enforcement officers or other public officers or employees.

Source:

S.L. 1977, ch. 291, § 6; 1985, ch. 362, § 1.

29-10.2-02. Attorney general to request state grand jury — District court to impanel jury.

Whenever the attorney general considers it to be in the public interest to convene a grand jury with jurisdiction extending beyond the boundaries of any single county, the attorney general shall petition a judge of the district court for an order impaneling a state grand jury. The judge shall, upon good cause shown, order the impaneling of a state grand jury which has jurisdiction to investigate and indict for crimes committed anywhere within the state. In determining good cause for impaneling a state grand jury, the judge shall require a showing that the matter concerns multicounty criminal activities which involves organized crime as that term is defined herein or corruption of law enforcement officers or other public officers, officials, or employees. The authority and powers granted to the attorney general by this chapter do not supplant or diminish the authority and powers as set out in chapter 29-10.1.

Source:

S.L. 1977, ch. 291, § 1.

29-10.2-03. Impaneling state grand jury — Selection — Composition.

The judge granting the order to impanel a state grand jury shall determine the counties from which the grand jurors are to be selected with due regard for the expense involved and the inconvenience of travel. The judge granting the order for a state grand jury shall notify the clerk of district court of each county from which the judge intends to select the members of the state grand jury. Upon receipt of the notice to impanel a state grand jury, each clerk of district court shall prepare a list of nine prospective state grand jurors from existing county jury lists in the manner provided by chapter 27-09.1, and forward the clerk’s state grand jury list to the clerk of district court of the county in which the order to impanel a state grand jury was granted. The judge granting the order shall impanel the state grand jury from such lists. A state grand jury must be composed of not less than eight nor more than eleven persons and each grand juror shall possess the qualifications of jurors within their respective counties as provided by law. However, not more than one-half of the members may be residents of one county. The members of the state grand jury must be selected and the foremen appointed in the manner provided by chapter 29-10.1 and shall serve a term or terms as provided therein.

Source:

S.L. 1977, ch. 291, § 2.

29-10.2-04. Summoning jurors — Presentation of evidence — Return of indictments.

  1. State grand jurors must be summoned in the same manner and must be governed by the same provisions as jurors of county grand juries. Judicial supervision of the state grand jury must be maintained by the judge who granted the order impaneling the state grand jury in the same manner as with county grand juries. All indictments or other formal returns of any kind made by the state grand jury must be returned to that judge. An indictment may be found only upon the concurrence of at least six jurors.
  2. The presentation of the evidence must be made to a state grand jury by the attorney general, an assistant attorney general, or special counsel appointed by the attorney general.
  3. Any indictment by a state grand jury must be returned to the supervising judge without any designation of venue. Thereupon the judge shall designate the county of venue for the purposes of trial.

Source:

S.L. 1977, ch. 291, § 3.

29-10.2-05. Grand jury investigations — Confidentiality — Exceptions.

  1. In addition to its power of indictment, a state grand jury impaneled under this chapter may, at the request of the attorney general, cause an investigation to be made into the extent of multicounty criminal activity which involves organized crime as defined herein or corruption of law enforcement officers or other public officers, officials, or employees.
  2. Disclosure of any matters occurring before a state grand jury, other than its deliberation and the vote of any juror, may be made to the attorney general for use in the performance of the attorney general’s duties. The attorney general may disclose so much of the state grand jury’s proceedings to law enforcement agencies as the attorney general considers essential to the public interest and effective law enforcement.
  3. A report or presentment of a state grand jury relating to an individual which is not accompanied by a true bill of indictment may not be made public or be published until the individual concerned has been furnished a copy of the report and given thirty days to file with the district court a motion to suppress or seal the report or a portion that is improper and unlawful. The motion, whether granted or denied, automatically acts as a stay of public announcement of the report, or portion of the report, until the district court’s ruling on the motion is either affirmed or denied by an appellate court, or until the time in which the order may be appealed has expired, whichever occurs first. The report or portion of the report which is suppressed or sealed may not be opened even by order of the court.

Source:

S.L. 1977, ch. 291, § 4; 2007, ch. 211, § 2.

29-10.2-06. Juror fees and expenses.

  1. State grand jurors, in addition to receiving the juror fee provided by law for petit jurors, must be reimbursed for necessary expenses on a per diem basis in the same manner and at the same rate as state employees.
  2. The costs and expenses incurred in impaneling a state grand jury and in the performance of its functions and duties must be paid by the state out of funds appropriated to the attorney general.

Source:

S.L. 1977, ch. 291, § 5.

Cross-References.

Per diem and mileage of petit jurors, see § 27-09.1-14.

CHAPTER 29-11 Proceedings on Information and Indictment [Repealed]

[Superseded by North Dakota Rules of Criminal Procedure; and Repealed by S.L. 1973, ch. 116, § 41]

29-11-01. Forms of pleadings in criminal actions. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 12.

29-11-02. First pleading — Information or indictment. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 12.

29-11-03. What need not be stated. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-04. Definitions. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-05. Caption, commencement, amendment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-06. Prosecutions in name of state — Conclusion. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-07. Subscription and verification of information — Waiver of objection. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-08. Form of indictment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-09. Form of information. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 58.

29-11-10. Charging the offense. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-10.1. Charging crime in separate counts and consolidating indictments and informations. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 8, 13, 14.

29-11-11. Bills of particulars. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-12. Facts required to be shown — Supplemental bill. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-13. Insufficiency of, or inconsistency between, indictment or information and bill of particulars — Effect. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 12.

29-11-14. Name of defendant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-15. Ascertaining true name — Extent of description. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-16. Time of commission, need not allege — Implications. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-17. Place of crime, need not specify. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-18. Means of commission. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-19. Allegations regarding value and price not required. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-20. Ownership of property — Allegation not required. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-21. Intent not pleaded — Exception. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-22. Characterization of act. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-23. Omission of unnecessary matter. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-24. Allegations of places and things, manner. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-25. Name of person other than defendant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-26. Property described as money — Manner. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-27. Description of written instruments. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-28. Description of written matter. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-29. Meaning of words and phrases. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-30. Allegation of prior convictions. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-31. Private statutes — Plead by title. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-32. Judgments — Facts conferring jurisdiction not required. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-33. Exceptions, need not negative. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-34. Alternative or disjunctive allegations. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-35. Indirect allegations. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-36. Libel. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-37. Perjury and kindred offenses. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-38. Forgery — Instrument destroyed — Misdescription. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-39. Larceny, embezzlement — Sufficient allegations. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-40. Obscene literature — Sufficient allegations. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-41. Offenses divided into degrees. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-42. Parties to offenses. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7; repealed by S.L. 1973, ch. 116, § 41.

29-11-43. Repugnancy. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-44. Surplusage. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-45. Defects, omissions — Amendment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-46. Certain errors not material. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-47. Variance not ground for acquittal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-48. Postponement for prejudice — Motion — Appeal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-49. Misjoinder, multiplicity, duplicity, and uncertainty. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 8.

29-11-50. Severing of indictment or information or bill of particulars required. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 14.

29-11-51. Appeal or motion denied unless defendant prejudiced. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 8.

29-11-52. Amendment after verdict. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-53. Disclosing the finding of an indictment or the filing of an information forbidden. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-54. Inspection of indictment, information. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-55. Indictment or information lost, mislaid — Copy may be used. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-56. Copy of indictment or information to be furnished defendant. [Repealed]

Superseded by N.D.R.Crim.P., Rules 7, 10.

29-11-57. Names of witnesses to be endorsed on indictment or information. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

29-11-58. Several defendants — One or more convicted or acquitted. [Repealed]

Superseded by N.D.R.Crim.P., Rule 7.

CHAPTER 29-12 Process upon Information and Indictment

29-12-01. Presence enforced by direction of court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-12-02. Warrant of arrest. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-12-03. Warrant, clerk to issue. [Repealed]

Superseded by N.D.R.Crim.P., Rule 9.

29-12-04. Warrant, form — Felony. [Repealed]

Superseded by N.D.R.Crim.P., Rules 9, 58.

29-12-05. Bench warrant, misdemeanor, infraction, or bailable felony.

If an offense is a misdemeanor, an infraction, or a bailable felony, the bench warrant issued must be in a form similar to form 12 as contained in the appendix to the North Dakota Rules of Criminal Procedure but must add to the body thereof a direction to the following effect: “or if the person requires it, that you take the person before any magistrate of that county or in the county in which you arrest the person, that the person may give bail to answer the information (or indictment)”.

Source:

R.C. 1895, § 8068; R.C. 1899, § 8068; R.C. 1905, § 9877; C.L. 1913, § 10714; R.C. 1943, § 29-1205; S.L. 1975, ch. 106, § 330; 1999, ch. 50, § 48.

29-12-06. Court must fix amount of bail. [Repealed]

Superseded by N.D.R.Crim.P., Rule 9.

29-12-07. Arrest upon bench warrant offense not bailable — Custody.

A defendant, when arrested under a bench warrant for an offense not bailable, must be held in custody by the sheriff of the county in which the information is filed or the indictment found.

Source:

C. Crim. P. 1877, § 244; R.C. 1895, § 8070; R.C. 1899, § 8070; R.C. 1905, § 9879; C.L. 1913, § 10716; R.C. 1943, § 29-1207.

29-12-08. Warrant served in any county. [Repealed]

Superseded by N.D.R.Crim.P., Rule 9.

29-12-09. Magistrate taking bail — Procedure.

If a defendant is brought before a magistrate of another county under a bench warrant for the purpose of giving bail, the magistrate shall proceed in respect thereto in the same manner as if the defendant had been brought before the magistrate upon a warrant of arrest, and the same proceedings may be had thereon.

Source:

C. Crim. P. 1877, § 246; R.C. 1895, § 8072; R.C. 1899, § 8072; R.C. 1905, § 9881; C.L. 1913, § 10718; R.C. 1943, § 29-1209.

29-12-10. Felony, bail given — Increased amount.

When an information or indictment is for a felony, and the defendant, before the filing or finding thereof, has given bail for the defendant’s appearance to answer the charge, the court to which the information or indictment is presented, or sent, or removed for trial, may order the defendant to be committed to actual custody either without bail, or until the defendant gives bail in an increased amount, to be specified in the order.

Source:

C. Crim. P. 1877, § 247; R.C. 1895, § 8073; R.C. 1899, § 8073; R.C. 1905, § 9882; C.L. 1913, § 10719; R.C. 1943, § 29-1210.

29-12-11. Procedure — Defendant present, defendant absent.

If a defendant is present when an order for a bench warrant is made, the defendant must be committed forthwith. If the defendant is not present, a bench warrant must be issued and proceeded upon in the manner provided in this chapter.

Source:

C. Crim. P. 1877, § 248; R.C. 1895, § 8074; R.C. 1899, § 8074; R.C. 1905, § 9883; C.L. 1913, § 10720; R.C. 1943, § 29-1211.

29-12-12. Appearance of corporation charged with offense — Pleas. [Repealed]

Superseded by N.D.R.Crim.P., Rule 43.

29-12-13. Information filed or indictment returned — Summons.

If an information is filed without a preliminary examination, or an indictment is returned against a corporation or limited liability company, the clerk of the district court shall issue a summons in the corporate name of the corporation or limited liability company in the form prescribed in rule 4 of the North Dakota Rules of Criminal Procedure commanding it to appear and answer the information or indictment. Such summons must be served as a summons in a civil action is served.

Source:

R.C. 1895, § 8420; R.C. 1899, § 8420; R.C. 1905, § 10229; C.L. 1913, § 11085; R.C. 1943, § 29-1213; S.L. 1979, ch. 187, § 60; S.L. 1993, ch. 54, § 106.

29-12-14. Default of a corporation or limited liability company — Plea — Fine collected.

Whenever a sheriff or other officer returns a summons issued as is provided in section 29-12-13 with the officer’s certificate showing due service thereof, the corporation or limited liability company, if it does not appear on and after the day appointed in such summons for its appearance, must be considered in default and the court shall order the clerk to enter a plea of not guilty for said corporation or limited liability company in the minutes of the court, and all further proceedings must be had in said action as if the corporation or limited liability company had appeared and pleaded not guilty to the information or indictment. If upon the trial the corporation or limited liability company is found guilty, the court shall impose a fine upon it as prescribed by law and shall enter judgment for the amount of such fine and the costs of said action in the same manner as on a judgment in a civil action.

Source:

C. Crim. P. 1877, § 535; R.C. 1895, § 8421; R.C. 1899, § 8421; R.C. 1905, § 10230; C.L. 1913, § 11086; R.C. 1943, § 29-1214; S.L. 1993, ch. 54, § 106.

CHAPTER 29-13 Arraignment [Repealed]

[Superseded by North Dakota Rules of Criminal Procedure]

29-13-01. When and where defendant arraigned. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-13-02. Defendant must be present if offense felony — Counsel may appear on misdemeanor. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 43.

29-13-03. Arraignment, right to have counsel. [Repealed]

Superseded by N.D.R.Crim.P., Rules 10, 44.

29-13-04. How arraignment made. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-13-05. Defendant’s true name. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-13-06. No other name given. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-13-07. Another name given — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-13-08. Time to answer given defendant — Discretion of court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

29-13-09. Failure to arraign and irregularity of arraignment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 10.

CHAPTER 29-14 Motions and Pleas [Repealed]

[Superseded by North Dakota Rules of Criminal Procedure]

29-14-01. Motion to quash — Plea. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 12.

29-14-02. Refusal to plead or pleading evasively — Failure of corporation to appear. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-03. Certain pleas abolished — Motion to quash substituted. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-04. Grounds for motion to quash. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-05. Motion — Form — Contents. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-06. Contents of motion to quash when based on pardon. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-07. When motion to quash heard. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-08. Trial of issues arising on a motion to quash. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-09. Motion denied — Answer immediately. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-10. Entry of order upon motion to quash — Failure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-11. Effect of sustaining the motion to quash. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-12. Failure to move to quash — Effect — Exception. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-13. Order setting aside, not a bar. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-14. Defendant’s pleading — Plea. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 12.

29-14-15. Pleas classified. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 12.

29-14-16. Offenses to which defendant may plead guilty. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-17. Plea of guilty to lesser offense or lesser degree. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-18. Plea of guilty — Determination of punishment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-19. Plea to be oral — Form of plea. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 58.

29-14-20. Plea must be made in open court — Time. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-21. Plea of guilty put in only by defendant — Exception. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 43.

29-14-22. Plea of guilty may be withdrawn. [Repealed]

Superseded by N.D.R.Crim.P., Rules 11, 32.

29-14-23. Plea of not guilty puts in issue every material allegation. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-24. Evidence under plea. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-25. Acquittal — Further prosecution. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.

29-14-26. Acquittal on merits. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-27. Former acquittal or conviction — Once in jeopardy. [Repealed]

Superseded by N.D.R.Crim.P., Rule 11.

29-14-28. Defendant in criminal case to give notice of alibi. [Repealed]

Superseded by N.D.R.Crim.P., Rule 12.1.

CHAPTER 29-15 Removal of Cause and Change of Judge

29-15-01. Causes for removal of action. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-02. Petition — Notice — Time to prepare. [Repealed]

Superseded by N.D.R.Crim.P., Rules 21, 22.

29-15-03. Court must order only one change. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-04. Duty of clerk. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-05. Disposition of defendant upon removal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-06. Court may require bail. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-07. Witnesses upon removal — Undertaking — Notice — Subpoena. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-08. Trial upon removal — Original pleadings — Copies. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-09. Clerk, neglect upon removal — Damages. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-10. Several defendants, removal by one. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-11. Removal by state — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-12. Prosecution by officers of county where action was commenced — Jurisdiction of court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 21.

29-15-13. Prejudice or bias of judge — Affidavit — Filing. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-14. Affidavit of prejudice to be filed. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-15. The supreme court to designate trial judge. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-16. Judge designated to conduct trial forthwith — Notice to parties. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-17. Expenses of judge designated. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-18. Jurors not to be excused by disqualified judge. [Repealed]

Repealed by S.L. 1951, ch. 203, § 1.

29-15-19. Only one change of judges allowable. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-20. Procedure when affidavit of prejudice and for change of venue is filed in criminal action. [Repealed]

Repealed by S.L. 1971, ch. 316, § 2.

29-15-21. Demand for change of judge.

  1. Subject to the provisions of this section, any party to a civil or criminal action or proceeding pending in the district court may obtain a change of the judge before whom the trial or any proceeding with respect thereto is to be heard by filing with the clerk of the court in which the action or proceeding is pending the original of a written demand for change of judge, executed either:
    1. By the personal signature of the party, if an individual, and by the personal signature of an authorized officer or manager, if a corporation, limited liability company, or association; or
    2. By the attorney for a party with the permission of the party, in which event the attorney shall file with the demand a certificate that the attorney has mailed a copy of the demand to such party.
  2. The demand is invalid unless it is filed with the clerk of the court not later than ten days after the occurrence of the earliest of any one of the following events:
    1. The date of the notice of assignment or reassignment of a judge for trial of the case;
    2. The date of notice that a trial has been scheduled; or
    3. The date of service of any ex parte order in the case signed by the judge against whom the demand is filed.
  3. Any party who has been added, voluntarily or involuntarily, to the action or proceeding after the date of any occurrence in subsection 2 has the right to file a demand for change of judge within ten days after any remaining event occurs or, if all of those events have already occurred, within ten days after that party has been added. In any event, no demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard. Any proceeding to modify an order for alimony, property division, or child support pursuant to section 14-05-24 or an order for child custody pursuant to section 14-05-22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge.
  4. The demand for change of judge must state that it is filed in good faith and not for the purposes of delay. It must indicate the nature of the action or proceeding, designate the judge sought to be disqualified, and certify that that judge has not ruled upon any matter pertaining to the action or proceeding in which the moving party was heard or had an opportunity to be heard.
  5. Upon the filing of the demand for change of judge, the clerk shall immediately send a copy of the demand for a change of judge to the presiding judge of the judicial district and the judge sought to be disqualified.
  6. Upon receipt of a copy of a demand for change of judge, the judge sought to be disqualified has no authority or discretion to determine the timeliness or validity of the demand and shall proceed no further or take any action in the action or proceeding and is thereafter disqualified from doing any further act in the cause unless the demand is invalidated by the presiding judge. The judge sought to be disqualified shall promptly submit to the presiding judge any comments the judge may have regarding the demand. If the presiding judge thereafter invalidates the demand because it was not timely filed or for other reasons, the judge sought to be disqualified shall resume jurisdiction in the case and hear and determine the case to conclusion.
  7. If a demand for a change of judge has been made and another judge assigned by the presiding judge of the judicial district, the presiding judge may decline to grant another demand for a change of judge made by a party whose interests in the matter are not adverse to those of the party whose demand was granted. A judge assigned by the presiding judge pursuant to a demand for change of judge is not disqualified upon a subsequent demand for change of judge unless and until the subsequent demand is granted and notice thereof is given to that judge by the presiding judge. A subsequent demand for a change of judge may be made only within five days after receiving notice of the assignment of a judge by the presiding judge pursuant to a previous demand.
  8. Upon receipt of a timely filed demand for a change of judge from the clerk of the court, the presiding judge of the judicial district in which the demand is filed shall promptly designate another judge to act in the place and stead of the judge disqualified.
  9. The judge designated, after receiving such notice of the assignment from the presiding judge, shall promptly proceed with the hearing or trial, first giving to the parties or their attorneys reasonable notice of the date of the hearing or trial.

Source:

S.L. 1971, ch. 316, § 1; 1979, ch. 187, § 61; 1981, ch. 318, § 2; 1981, ch. 346, § 4; 1983, ch. 368, § 1; 1991, ch. 326, § 113; 1993, ch. 54, § 106; 2013, ch. 63, § 7.

Cross-References.

Assignment of judge to sit in place of judge with conflict of interest or incapacity, see N.D. Const., Art. VI, § 11.

Rule relating to district judge and municipal judge self-disqualification procedure, see Administrative Rule 17, North Dakota Court Rules Annotated.

Notes to Decisions

Constitutionality.

This section is a reasonable and workable statutory arrangement for permitting a litigant to obtain a change of judge, does not conflict with any rules promulgated by the supreme court, and is not unconstitutional as a violation of the separation of powers doctrine. Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644, 1997 N.D. LEXIS 56 (N.D. 1997).

Affidavit Joined in by All Parties.

A disqualifying affidavit must be joined in by all parties defendant, except those who default or who are merely nominal. Huether v. Havelock Equity Exch., 52 N.D. 786, 204 N.W. 828, 1925 N.D. LEXIS 147 (N.D. 1925).

Affidavit Not Libel.

Affidavit of prejudice cannot be used by judge against whom it was directed as the basis for libel suit against person so filing. Lauder v. Jones, 13 N.D. 525, 101 N.W. 907, 1904 N.D. LEXIS 79 (N.D. 1904).

Interlocutory.

District court properly denied a father's motions for recusal, for change of judge in child support modification proceedings, to hold the mother in contempt of the divorce judgment, and to reconsider because the father waived his issues on appeal regarding recusal, the orders denying his demands for change of judge were interlocutory and not appealable, the father's relentless filing of meritless motions was clearly for purposes of harassing the mother, the court thoroughly explained its reasons for refusing to hold the mother in contempt, and the father failed to establish any contempt on the part of the mother. Rath v. Rath, 2017 ND 128, 895 N.W.2d 306, 2017 N.D. LEXIS 129 (N.D. 2017).

Mandatory disqualification.

It was error for a successor judge to vacate a prior judge's child support modification order under N.D.C.C. § 29-15-21 based on the fact that a father had moved for recusal of the prior judge before the order was entered because the statute did not apply, so the statute did not deprive the prior judge of authority to enter the modification order, as the statute was not cited as the basis for the recusal motion. Schweitzer v. Mattingley, 2016 ND 231, 887 N.W.2d 541, 2016 N.D. LEXIS 232 (N.D. 2016).

Practice and Procedure.

District court erred in denying a demand for change of judge based solely on its timeliness because the demand for change of judge on the ground of bias was based on allegations of actions of the assigned judge prior to trial. Therefore, reversal of the court's judgment and remand for further proceedings was necessary. Gray v. Berg, 2015 ND 203, 868 N.W.2d 378, 2015 N.D. LEXIS 219 (N.D. 2015).

District court properly denied a father's demands for a change of judge because he did not meet statutory requirements for a change of judge where he did not file a demand for change of judge before the judge he sought to be disqualified ruled on his motion for joinder. Rath v. Rath, 2017 ND 138, 895 N.W.2d 315, 2017 N.D. LEXIS 140 (N.D. 2017).

Trial judge did not err in recusing himself because a father did not explain what knowledge the judge obtained in his personal capacity, the fact that the judge heard testimony in a different residential responsibility case involving the mother did not on its own raise a reasonable question about his impartiality where the relevant circumstances of the prior case were public record when the judge was assigned to this case, and no demand for change of judge was made. Colling v. Behrens (In re R.W.B.C.), 2017 ND 144, 896 N.W.2d 226, 2017 N.D. LEXIS 132 (N.D. 2017).

Sufficiency of Allegation of Prejudice.

Court did not err in denying defendant’s demand for a change of judge where defendant’s demand cited only N.D.C.C. § 29-15-21, under which the demand was untimely and did not comply with other requirements, if the demand was intended to rely on bias, defendant’s allegations of preconceived notions were too vague, and the judge’s adverse rulings were not a basis for recusal. State v. Hunter, 2018 ND 173, 914 N.W.2d 527, 2018 N.D. LEXIS 179 (N.D. 2018), cert. denied, — U.S. —, 139 S. Ct. 804, 202 L. Ed. 2d 591, 2019 U.S. LEXIS 563 (U.S. 2019).

“Any” Defined.

Giving the word “any” its ordinary and comprehensive meaning, it reasonably means “all” or “every” in the context of this section. State v. Zueger, 459 N.W.2d 235, 1990 N.D. LEXIS 168 (N.D. 1990).

Authority of Designated Judge.

A judge called into a district to try a case has authority to hear and decide all motions and other matters connected therewith. State v. Tomlinson, 7 N.D. 294, 74 N.W. 995, 1898 N.D. LEXIS 60 (N.D. 1898).

Authority of Incoming Judge.

Judge designated to act in place of the one disqualified has authority to hear and determine applications with respect to change of place of trial and to what county the case should be transferred. State v. Phillips, 68 N.D. 113, 277 N.W. 609, 1938 N.D. LEXIS 89 (N.D. 1938).

Change of Judge Who Denied Jury Trial.

Supreme court would grant change of judge when the judge had denied a demand for jury trial and so would be presiding at the trial on the merits. United Hosp. v. Hagen, 285 N.W.2d 586, 1979 N.D. LEXIS 316 (N.D. 1979).

Change of Venue.

After a judge grants a change of venue to a county in another district, a duly-elected judge in the judicial district to which the case is transferred then has jurisdiction to decide the lawsuit. Thompson v. Peterson, 546 N.W.2d 856, 1996 N.D. LEXIS 123 (N.D. 1996).

Complete Authority.

Designation by supreme court of substitute judge does not limit his authority to matters incident to trial of particular case, but gives him authority to accept plea of guilty and to pronounce sentence. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Contempt Case.

Person accused of civil contempt was not entitled to have presiding judge disqualified for prejudice and another judge called to determine the case. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

Judge against whom a demand for change of judge has been filed is not disqualified from conducting civil contempt proceedings that arise out of actions or orders issued prior to the demand for change of judge. Schmidt v. Thompson, 347 N.W.2d 315, 1984 N.D. LEXIS 265 (N.D. 1984).

Designation of Judge.

A district court judge, against whom an affidavit of prejudice is filed in a criminal action, has no authority to designate another judge to act in his stead at the trial. State v. Peterson, 49 N.D. 117, 190 N.W. 309, 1922 N.D. LEXIS 19 (N.D. 1922).

Domestic Relations Proceedings.

The provision allowing for a change of judge in domestic relations cases clearly applies only to a proceeding to modify an order after the original action has been concluded. It has no application to an interim order made prior to trial in a pending divorce action. Stroschein v. Stroschein, 390 N.W.2d 547, 1986 N.D. LEXIS 358 (N.D. 1986).

Husband was not entitled to a change of judge pursuant to this section because the wife’s motion to enforce the divorce judgment’s division of the husband’s employee retirement account did not invoke a proceeding to modify the original divorce decree, but rather initiated a proceeding to enforce that decree. Giese v. Giese, 2002 ND 194, 653 N.W.2d 663, 2002 N.D. LEXIS 247 (N.D. 2002).

Failure to Raise Issue in Trial Court.

Where appellant never made a motion for a new trial, nor did she move for relief from the judgment, pursuant to N.D.R.Civ.P., Rule 60(b)(vi) nor did she demand for a change of judge pursuant to this section until the case was already on appeal to the supreme court, she failed to raise in the trial court the issue of judicial bias. Wenzel v. Wenzel, 469 N.W.2d 156, 1991 N.D. LEXIS 73 (N.D. 1991).

Invalid Order.

Order made by disqualified judge designating another judge of the same judicial district as substitute is invalid. State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Limits of Authority.

Order of supreme court designating judge does not confer upon him the power to hear cases other than the one for which he has been designated. State v. Garrison, 68 N.D. 71, 276 N.W. 693, 1937 N.D. LEXIS 130 (N.D. 1937); State ex rel. Johnson v. Thomson, 76 N.D. 125, 34 N.W.2d 80 (1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Mandatory Disqualification.

It is error for trial judge to refuse to disqualify himself where defendant has presented valid affidavit of prejudice. State v. Kent, 4 N.D. 577, 62 N.W. 631, 27 L.R.A. 686 (1895), decided prior to the enactment of Laws 1921, Chapter 129, §§ 1 and 4 (see now N.D.R.Crim.P., Rule 21) State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896); State v. Boyd, 26 N.D. 224, 144 N.W. 232, 1913 N.D. LEXIS 62 (N.D. 1913); 60 A.L.R.4th 1129.

When an affidavit alleging prejudice is presented, another judge must be called. State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896); Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982, 1901 N.D. LEXIS 48 (N.D. 1901).

Ministerial Duties.

When the resident judge is disqualified to try a case, he has certain ministerial duties to perform, but is inhibited from exercising any judicial functions in the action. Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982, 1901 N.D. LEXIS 48 (N.D. 1901).

Misstatement of Fact in Motion.

Defendant’s motion for rescission of order granting a change of judge made pursuant to this section was denied despite fact that state, in requesting change of judge, had erroneously stated that the previously assigned judge had not ruled upon any matter pertaining to the action or proceeding on which the moving party was heard or had an opportunity to be heard; defendant’s admission that neither he nor his attorney had any objection to the judge assigned pursuant to the order and that the assigned judge had granted a stipulated continuance of the case over the term sufficiently vitiated state’s error in original motion. State v. Cook, 209 N.W.2d 888, 1973 N.D. LEXIS 165 (N.D. 1973).

No Legislative Repeal.

The statute which provides for the change of place of trial, and for a change of judges upon the filing of an affidavit of prejudice by the accused, is not repealed by the statute providing for the designation of a trial judge by the supreme court. State v. Craig, 54 N.D. 5, 208 N.W. 394, 1926 N.D. LEXIS 105 (N.D. 1926).

Number of Affidavits.

The statute does not permit the filing of more than one affidavit of prejudice against a judge at the same term. Pelton v. Rosen, 46 N.D. 271, 176 N.W. 920, 1920 N.D. LEXIS 4 (N.D. 1920).

Parties to Affidavit.

A disqualifying affidavit must be joined in by all parties defendant except those who default or who are merely nominal. Huether v. Havelock Equity Exch., 52 N.D. 786, 204 N.W. 828, 1925 N.D. LEXIS 147 (N.D. 1925).

Post-Conviction Proceedings.

This section does not apply to post-conviction proceedings under the revised Post Conviction Procedure Act, N.D.C.C. ch. 29-32.1. Falcon v. State, 1997 ND 200, 570 N.W.2d 719, 1997 N.D. LEXIS 248 (N.D. 1997).

Purpose of Statute.

The purpose of a statute providing for a change of the judge on a party’s affidavit of prejudice is not to enable a party to have a particular judge designated to try the cause, but to obtain a change of the judge when he honestly believes the presiding judge would be biased or prejudiced. State v. Garrison, 68 N.D. 71, 276 N.W. 693, 1937 N.D. LEXIS 130 (N.D. 1937), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Remedy.

Writ of prohibition will issue against judge who attempts to continue trial after disqualification. State ex rel. Lucia v. Monson, 55 N.D. 892, 215 N.W. 680, 1927 N.D. LEXIS 180 (N.D. 1927).

Right of State to Disqualify.

Where defendant has filed affidavit and obtained dismissal of presiding judge, state is not entitled, as a matter of right, to have incoming judge disqualified upon its affidavit of prejudice. State v. Donnelly, 68 N.D. 76, 276 N.W. 695, 1937 N.D. LEXIS 131 (N.D. 1937).

The legislature clearly intended the government to be a “party” authorized to demand a change of judge. Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644, 1997 N.D. LEXIS 56 (N.D. 1997).

Sufficiency of Allegation of Prejudice.

Trial court properly denied inmate a peremptory removal of the judge and a change of judge based on prejudice where inmate alleged no meaningful allegations of prejudice or bias, but rather only contended that the trial judge was without jurisdiction to rule on the matter once inmate alleged prejudice. Syvertson v. State, 2000 ND 185, 620 N.W.2d 362, 2000 N.D. LEXIS 282 (N.D. 2000), cert. dismissed, 532 U.S. 939, 121 S. Ct. 1428, 149 L. Ed. 2d 342, 2001 U.S. LEXIS 2665 (U.S. 2001).

Time for Filing.

An affidavit of prejudice directed to the judge of the district court and not filed before the commencement of the term at which the case is to be tried is of no effect. Stockwell v. Crawford, 21 N.D. 261, 130 N.W. 225, 1911 N.D. LEXIS 140 (N.D. 1911).

An affidavit of prejudice, filed after the opening of a term of court but before the date to which an adjournment is taken, is not filed within the time limited, and may be disregarded by the court. Grabau v. Nurnberg, 39 N.D. 57, 166 N.W. 508, 1917 N.D. LEXIS 139 (N.D. 1917).

A party is entitled to a peremptory challenge of an assigned judge, without alleging bias or prejudice. However, the party seeking to disqualify a judge must file a timely request before that judge has ruled upon any matter pertaining to the case. State v. Zueger, 459 N.W.2d 235, 1990 N.D. LEXIS 168 (N.D. 1990).

Defendant’s demand for change of judge was properly denied where it was not made before the judge sought to be disqualified had ruled on a matter pertaining to the proceeding, namely, a motion for an expedited trial date. State v. Zueger, 459 N.W.2d 235, 1990 N.D. LEXIS 168 (N.D. 1990).

Where demands for a change of judge were made in excess of ten days, they were untimely pursuant to subdivision (2)(b) of this section. Adolph Rub Trust v. Rub, 473 N.W.2d 442, 1991 N.D. LEXIS 138 (N.D. 1991).

Record showed that defendant intentionally failed to raise issue of trial judge’s bias before trial, and eleventh-hour demand for a change of judge was held to be merely a stratagem to delay the trial. Varriano v. Bang, 541 N.W.2d 707, 1996 N.D. LEXIS 12 (N.D. 1996).

Since this provision makes no reference to a case being scheduled on the calendar, but simply requires a judge to be assigned for trial in order for the ten-day period in which to make the demand for a change of judge to begin to run, the defendant’s demand for change of judge was untimely when made more than a month after notice was given of the judge assigned. State v. Velasquez, 1999 ND 217, 602 N.W.2d 693, 1999 N.D. LEXIS 229 (N.D. 1999).

In a criminal contempt case arising from a visitation dispute, a demand for a change of judge, filed over a year after the trial judge had been assigned to the case, was untimely under N.D.C.C. § 29-15-21(2). State v. Stockert, 2004 ND 146, 684 N.W.2d 605, 2004 N.D. LEXIS 276 (N.D. 2004).

Court did not err in denying the patient's demand for a change of judge because, in response to the petitions for continuing treatment, the judge had made rulings in the continuing case involving the patient and the mental health center, after which the demand for a change of judge was not statutorily permitted. Southeast Human Serv. Ctr. v. M.S. (In re M.S.), 2017 ND 208, 900 N.W.2d 805, 2017 N.D. LEXIS 211 (N.D. 2017).

Presiding judge properly denied defendant’s demand for a change of judge because it was untimely; while it appeared from the record that the presiding judge’s determination regarding defendant’s request to disqualify the assigned judge appeared appropriate, on remand, the assigned judge was required to determine whether a reasonable person could, on the basis of all the facts, reasonably question the judge’s impartiality. State v. Wallace, 2018 ND 225, 918 N.W.2d 64, 2018 N.D. LEXIS 234 (N.D. 2018).

Time of Disqualification.

Disqualification of judge occurs when affidavit of prejudice is timely filed. 76 N.D. 125, 34 N.W.2d 80, 1948 N.D. LEXIS 67, decided prior to the adoption of N.D.R.Crim.P., Rule 21.

DECISIONS UNDER PRIOR LAW

Contempt Proceedings.

A party is not entitled to a change of judges in a contempt proceeding. Township of Noble v. Aasen, 10 N.D. 264, 86 N.W. 742, 1901 N.D. LEXIS 32 (N.D. 1901).

Disqualified Judge.

A judge who is disqualified may be compelled by mandamus to call another judge. Gunn v. Lauder, 10 N.D. 389, 87 N.W. 999, 1901 N.D. LEXIS 54 (N.D. 1901).

Halt of Proceedings.

Disqualified judge of one judicial district was entitled to make written request to judge of another district to act in his place. State ex rel. McDonald v. Hanley, 43 N.D. 388, 175 N.W. 569, 1919 N.D. LEXIS 51 (N.D. 1919).

If the papers proper to disqualify a district judge are filed, the court shall proceed no further in the action, and an order by him appointing a receiver in the case is void. Orcutt v. Conrad, 10 N.D. 431, 87 N.W. 982, 1901 N.D. LEXIS 48 (N.D. 1901).

Order Discharging Jury.

Order discharging jury was invalid if made by another judge than the one designated, and could be set aside by incoming judge. State v. Donnelly, 68 N.D. 76, 276 N.W. 695, 1937 N.D. LEXIS 131 (N.D. 1937).

Transfer of Action.

The filing of an affidavit of prejudice against both the presiding judge and the county does not divest the trial judge of authority to order the transfer of the action to another county for trial. State v. White, 21 N.D. 444, 131 N.W. 261, 1911 N.D. LEXIS 113 (N.D. 1911); State v. Boyd, 26 N.D. 224, 144 N.W. 232, 1913 N.D. LEXIS 62 (N.D. 1913).

Where the trial judge who had been disqualified failed to designate judge who should sit, and where prejudice also existed in county to which case was transferred, supreme court in the exercise of its superintending control would name judge and county where case should be transferred. Lowe v. District Court, 48 N.D. 1, 181 N.W. 92, 1921 N.D. LEXIS 1 (N.D. 1921).

Upon filing of affidavits of prejudice against county and judge, it was duty of court to order transfer to some other county and to arrange for another judge. State v. Craig, 54 N.D. 5, 208 N.W. 394, 1926 N.D. LEXIS 105 (N.D. 1926).

Collateral References.

Disqualification of judge by state, in criminal case, for bias or prejudice, 68 A.L.R.3d 509.

Judge as witness in same case, disqualification, 22 A.L.R.3d 1198.

Disqualification of judge because of his or another’s holding or owning stock in corporation involved in litigation, 25 A.L.R.3d 1331.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence, 37 A.L.R.4th 1004.

Disqualification of judge because of political association or relation to attorney in case, 65 A.L.R.4th 73.

Disqualification from criminal proceeding of trial judge who earlier presided over disposition of case of coparticipant, 72 A.L.R.4th 651.

Construction of provision in Federal Criminal Procedure Rule 42(b) that if contempt charges involve disrespect to or criticism of judge, he is disqualified from presiding at trial or hearing except with defendant’s consent, 3 A.L.R. Fed. 420.

Disqualification of judge for bias against counsel for litigant, 54 A.L.R.5th 575.

CHAPTER 29-16 Method of Trial

29-16-01. Issue of fact.

An issue of fact arises:

  1. Upon a plea of not guilty;
  2. Upon a plea of former conviction or acquittal of the same offense; or
  3. Upon a plea of once in jeopardy.

Source:

C. Crim. P. 1877, § 292; R.C. 1895, § 8123; R.C. 1899, § 8123; R.C. 1905, § 9932; C.L. 1913, § 10769; R.C. 1943, § 29-1601.

Notes to Decisions

Advisement Obligation.

N.D.C.C. § 29-16-01 did not require a trial court to inform a defendant that the defendant could plead “once in jeopardy,” rather than only guilty or not guilty, because the statute mentioned no advisement obligation. State v. Scott, 2020 ND 160, 946 N.W.2d 704, 2020 N.D. LEXIS 157 (N.D. 2020).

Former Jeopardy.

The question of fact of former jeopardy should be presented to jury upon a separate plea of not guilty because of former jeopardy arising from former acquittal or conviction, and the failure to enter such a plea is a waiver of the defense of former jeopardy arising from a former conviction. State v. Barnes, 29 N.D. 164, 150 N.W. 557, 1915 N.D. LEXIS 1 (N.D. 1915).

Proving Former Jeopardy.

Since a plea of former jeopardy is not a denial of any allegations of the indictment, the burden is upon defendant to prove such plea, and if not proved, it must be answered in the negative without submission to the jury. State v. Taylor, 70 N.D. 201, 293 N.W. 219, 1940 N.D. LEXIS 161 (N.D. 1940).

29-16-02. Issues of fact tried by jury — When trial by jury may be waived.

In any case, whether a misdemeanor or felony, a trial jury may be waived by the consent of the defendant and the state’s attorney expressed in open court and entered on the minutes of the court. Otherwise, the issues of fact must be tried by the jury.

Source:

C. Crim. P. 1877, § 293; R.C. 1895, § 8124; R.C. 1899, § 8124; R.C. 1905, § 9933; C.L. 1913, § 10770; R.C. 1943, § 29-1602.

Cross-References.

Trial by jury or by court, see N.D.R.Crim.P., Rule 23.

Notes to Decisions

Failure of Proof.

If the defendant fails to carry the burden of proof as to plea of former jeopardy, he will be deemed to have waived his right to a jury trial on that issue. State v. Taylor, 70 N.D. 201, 293 N.W. 219, 1940 N.D. LEXIS 161 (N.D. 1940).

Plea of Guilty.

A plea of guilty is not a waiver of a trial by jury. It is an admission rendering a trial by jury unnecessary. State v. Pedie, 58 N.D. 27, 224 N.W. 898, 1929 N.D. LEXIS 177 (N.D. 1929).

Waiver.

Defendant was denied his right to a jury trial where he was tried by court and record did not reveal that defendant expressly and intelligently consented to waiver of his right to a jury trial; when a written waiver is not submitted, a trial court could eliminate doubt and safeguard rights of a defendant by obtaining an express statement of defendant specifically indicating on record that a jury trial is or is not waived. State v. Kranz, 353 N.W.2d 748, 1984 N.D. LEXIS 334 (N.D. 1984).

An attorney may not waive his client’s constitutional right to a jury trial in a felony case; in such cases, an express waiver must be made personally by the defendant in writing or in open court. State v. Bakke, 498 N.W.2d 819, 1993 N.D. App. LEXIS 7 (N.D. Ct. App. 1993).

Collateral References.

Withdrawal of waiver of right to jury trial in criminal case, 46 A.L.R.2d 919.

Validity and efficacy of accused’s waiver of unanimous verdict, 97 A.L.R.3d 1253.

Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury, 37 A.L.R.4th 304.

Jury trial waiver as binding on later state civil trial, 48 A.L.R.4th 747.

Right to jury trial in action for retaliatory discharge from employment, 52 A.L.R.4th 1141.

29-16-03. Presence of defendant if felony charged. [Repealed]

Superseded by N.D.R.Crim.P., Rule 43.

29-16-04. Presence of defendant in prosecution for misdemeanor. [Repealed]

Superseded by N.D.R.Crim.P., Rule 43.

29-16-05. Order or warrant requiring presence of defendant.

If the presence of a defendant on trial for an infraction or a misdemeanor, who is voluntarily absent, is necessary for any purpose, the court, upon application of the state’s attorney or other person appointed to prosecute, may make an order or warrant requiring the personal attendance of the defendant at the trial.

Source:

C. Crim. P. 1877, § 294; R.C. 1895, § 8125; R.C. 1899, § 8125; R.C. 1905, § 9934; C.L. 1913, § 10771; R.C. 1943, § 29-1605; S.L. 1975, ch. 106, § 331.

Cross-References.

Presence of defendant, see N.D.R.Crim.P., Rule 43.

29-16-06. Presence of defendant at proceedings before and after trial. [Repealed]

Superseded by N.D.R.Crim.P., Rule 43.

29-16-07. Time to prepare for trial.

After a plea of not guilty, the defendant, if the defendant requests it, is entitled to at least one day to prepare for trial, and further time for good cause shown.

Source:

R.C. 1895, § 8126; R.C. 1899, § 8126; R.C. 1905, § 9935; C.L. 1913, § 10772; R.C. 1943, § 29-1607.

Notes to Decisions

Absolute Right.

Right to at least one day’s time for preparation is absolute. State v. Chase, 17 N.D. 429, 117 N.W. 537, 1908 N.D. LEXIS 77 (N.D. 1908).

Starting Again on Following Day.

If the parties were prepared for trial, it may be assumed that starting again the following day would not create new problems of preparation. State v. Wilson, 488 N.W.2d 618, 1992 N.D. LEXIS 170 (N.D. 1992).

Waiver of Right.

The request for one day’s time for preparation ordinarily should be made immediately after the plea, and failure to do so may result in waiver of the right. State v. Chase, 17 N.D. 429, 117 N.W. 537, 1908 N.D. LEXIS 77 (N.D. 1908); State v. Kelly, 25 N.D. 1, 140 N.W. 714, 1913 N.D. LEXIS 90 (N.D. 1913).

CHAPTER 29-17 Trial Jury

29-17-01. Jurors in criminal actions same as those summoned for civil actions.

The jurors duly drawn and summoned for the trial of civil actions also are the jurors for the trial of criminal actions.

Source:

C. Crim. P. 1877, § 295; R.C. 1895, § 8127; R.C. 1899, § 8127; R.C. 1905, § 9936; C.L. 1913, § 10773; R.C. 1943, § 29-1701.

Law Reviews.

Voir Dire: What Can I Ask and What Can I Say?, 72 N.D. L. Rev. 631 (1996).

29-17-02. How trial jury formed.

A trial jury for a criminal action must be formed in the same manner as a trial jury in a civil action.

Source:

C. Crim. P. 1877, § 296; R.C. 1895, § 8128; R.C. 1899, § 8128; R.C. 1905, § 9937; C.L. 1913, § 10774; R.C. 1943, § 29-1702.

29-17-03. Clerk selection of juror names — Randomized list.

At the opening of the court, the clerk shall select the names of prospective jurors from a randomized list of names developed in accordance with chapter 27-09.1 and supreme court rule.

Source:

C. Crim. P. 1877, § 297; R.C. 1895, § 8129; R.C. 1899, § 8129; R.C. 1905, § 9938; C.L. 1913, § 10775; R.C. 1943, § 29-1703; 2009, ch. 280, § 1.

29-17-04. Parties may require names of all jurors in panel to be called.

When a case is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the court may order that an attachment issue against those who are absent, but the court, in its discretion, may wait or not for the return of the attachment.

Source:

C. Crim. P. 1877, § 298; R.C. 1895, § 8130; R.C. 1899, § 8130; R.C. 1905, § 9939; C.L. 1913, § 10776; R.C. 1943, § 29-1704.

29-17-05. Manner of drawing jury. [Repealed]

Repealed by S.L. 2009, ch. 280, § 3.

29-17-06. Ballots laid aside until jurors discharged. [Repealed]

Repealed by S.L. 2009, ch. 280, § 3.

29-17-07. When jurors discharged names returned to box. [Repealed]

Repealed by S.L. 2009, ch. 280, § 3.

29-17-08. Name of absent or disqualified juror returned to box when jury completed. [Repealed]

Repealed by S.L. 2009, ch. 280, § 3.

29-17-09. Completion of panel — Procedure. [Repealed]

Repealed by S.L. 1999, ch. 292, § 2.

29-17-10. Names of additional jurors — Ballots deposited in box. [Repealed]

Repealed by S.L. 2009, ch. 280, § 3.

29-17-11. Drawing the jury. [Repealed]

Repealed by S.L. 2009, ch. 280, § 3.

29-17-12. Number of jurors — How sworn.

In all felony cases when a jury is impaneled, a jury must consist of twelve qualified jurors. In class A misdemeanor cases when a jury is impaneled, a jury must consist of six qualified jurors unless the defendant makes a timely written demand for a jury of twelve. In all other misdemeanor cases when a jury is impaneled, a jury must consist of six qualified jurors. Jurors must be sworn or affirmed well and truly to try and true deliverance make between the state of North Dakota and the defendant whom they have in charge, and to give a true verdict according to the evidence. The verdict must be unanimous.

Source:

C. Crim. P. 1877, § 306; R.C. 1895, § 8138; R.C. 1899, § 8138; R.C. 1905, § 9947; C.L. 1913, § 10784; R.C. 1943, § 29-1712; S.L. 1977, ch. 292, § 1; 1985, ch. 346, § 2; 1989, ch. 398, § 1.

Note.

The language regarding an oath or affirmation in this section has been superseded by N.D.R.Ct. 6.10.

Cross-References.

Corresponding criminal rule, see N.D.R.Crim.P., Rule 23(b), (c).

Notes to Decisions

Constitutionality.

Legislative interference with the size of the jury for a felony trial is not authorized in Art. I, § 13, N.D. Const.; accordingly, that part of this section, which dictates a six-person jury in a felony case absent a special written demand by the defendant is unconstitutional. State v. Hegg, 410 N.W.2d 152, 1987 N.D. LEXIS 371 (N.D. 1987).

Individual Swearing.

It was not error to swear each juror individually as he appeared, and before proceeding further with the call. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003, 1890 N.D. LEXIS 6 (N.D. 1890).

Misdemeanor Trials.

As Art. I, § 13, N.D. Const. and this section specifically authorize a six-person jury in misdemeanor cases, which is also permissible under the federal constitution, defendant’s trial by a six-person jury did not deny him due process. State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

Timely Objection.

Inasmuch as no objection was made by the defendant on the record to a variation in the usual trial procedure of having the jury sworn at the beginning of the trial prior to opening statements and preliminary instructions, this issue was not preserved for appeal. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Unanimous Verdicts.
—Instructions.

The better reasoned form of instruction to guide a jury in considering lesser included offenses is the “acquittal first” instruction, which requires the jury to agree unanimously to acquit on the greater offense before considering lesser offenses, rather than the “unable to agree” instruction, which instructs the jury it may consider lesser included offenses if, after reasonable efforts, the jurors cannot agree on a verdict on the greater offense. State v. Daulton, 518 N.W.2d 719, 1994 N.D. LEXIS 146 (N.D. 1994).

Collateral References.

Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 A.L.R.4th 91.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

29-17-13. Number failing, others summoned.

If a sufficient number of jurors cannot be selected to form a trial jury, the court, as often as is necessary, may order the sheriff to summon from the body of the county as many persons qualified to serve as jurors as the court deems sufficient to form a jury. The jurors so summoned may be called from the list returned by the sheriff, and as many of them not excused or discharged as may be necessary to complete the jury must be impaneled and sworn.

Source:

C. Crim. P. 1877, § 307; R.C. 1895, § 8139; R.C. 1899, § 8139; R.C. 1905, § 9948; C.L. 1913, § 10785; R.C. 1943, § 29-1713; 2009, ch. 280, § 2.

Notes to Decisions

Application.

This section does not govern instances when a juror shortage arises at the time of trial; hence, where a trial court clerk, in an attempt to fully seat a jury for defendant’s trial after voir dire was already in progress, telephoned only women who were on the jury wheel that she knew would be at home and not at work, this section did not apply. State v. Schwab, 2003 ND 119, 665 N.W.2d 52, 2003 N.D. LEXIS 128 (N.D. 2003).

29-17-14. Juror may affirm. [Repealed]

Superseded by N.D.R.Ct. 6.10.

29-17-15. Challenges defined and classified.

A challenge is an objection made to the trial jurors and is of two kinds:

  1. To the panel; and
  2. To an individual juror.

Source:

C. Crim. P. 1877, § 310; R.C. 1895, § 8142; R.C. 1899, § 8142; R.C. 1905, § 9951; C.L. 1913, § 10788; R.C. 1943, § 29-1715.

Cross-References.

Trial jurors, see N.D.R.Crim.P., Rule 24.

Collateral References.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

29-17-16. When several defendants are tried together they must join their challenges.

When several defendants are tried together they cannot sever their challenges but must join therein.

Source:

C. Crim. P. 1877, § 311; R.C. 1895, § 8143; R.C. 1899, § 8143; R.C. 1905, § 9952; C.L. 1913, § 10789; R.C. 1943, § 29-1716.

Cross-References.

Trial jurors, see N.D.R.Crim.P., Rule 24.

29-17-17. Panel defined.

A jury panel is a list of jurors returned by a sheriff to serve at a particular court or for the trial of a particular action.

Source:

C. Crim. P. 1877, § 312; R.C. 1895, § 8144; R.C. 1899, § 8144; R.C. 1905, § 9953; C.L. 1913, § 10790; R.C. 1943, § 29-1717.

29-17-18. Challenge to panel defined.

A challenge to a panel is an objection made to all the trial jurors returned and may be taken by either party.

Source:

C. Crim. P. 1877, § 313; R.C. 1895, § 8145; R.C. 1899, § 8145; R.C. 1905, § 9954; C.L. 1913, § 10791; R.C. 1943, § 29-1718.

29-17-19. Causes for challenge to panel.

A challenge to a panel can be founded only on a material departure from the forms prescribed by law in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.

Source:

C. Crim. P. 1877, § 314; R.C. 1895, § 8146; R.C. 1899, § 8146; R.C. 1905, § 9955; C.L. 1913, § 10792; R.C. 1943, § 29-1719.

Notes to Decisions

Application of Section.

Under this section, dismissal of the entire panel is proper when there has been a material departure in the process of selecting the panel; this section was not applicable where such process was not challenged. State v. Gross, 351 N.W.2d 428, 1984 N.D. LEXIS 313 (N.D. 1984).

Fair Cross-Section Requirement.

A party asserting a lack of randomness from the jury selection process must demonstrate a resulting exclusion of a constitutionally cognizable group. To establish there was a substantial failure to comply with the statutory process requiring reversal, the complaining party must provide a factual basis showing the jury panel selection process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross section of the population. State v. Palmer, 2002 ND 5, 638 N.W.2d 18, 2002 N.D. LEXIS 12 (N.D. 2002).

Defendant showed no prejudice from jurors’ aggregate familiarity with the prosecutor because (1) defendant did not claim this caused the jurors to be unrepresentative of the community, and (2) jurors were selected pursuant to statutory requirements. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Incapacity of Clerk.

Fact that clerk who called panel was also a justice of the peace was not sufficient ground for a challenge to the panel. State v. Lee, 78 N.D. 489, 50 N.W.2d 124, 1951 N.D. LEXIS 107 (N.D. 1951).

Motion in Arrest of Judgment Not Valid.

Alleged procedural defects in drawing a jury can be taken advantage of only by challenge of the panel before the jury is sworn, and not by motion in arrest of judgment. State v. Probst, 63 N.D. 598, 249 N.W. 711, 1933 N.D. LEXIS 211 (N.D. 1933).

Number in Box.

The fact that the jury box does not contain in all two hundred names and does not contain the full number of the names of jurors apportioned to a certain city does not constitute ground for a challenge of the panel. State v. Stoddard, 65 N.D. 238, 257 N.W. 479, 1934 N.D. LEXIS 191 (N.D. 1934).

Collateral References.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Validity, Construction, and Application of Right of Defendant in State Criminal Proceeding to Jury Composed Solely of United States Citizens. 36 A.L.R.6th 189.

29-17-20. Challenge to panel before challenge to individual juror.

A challenge to a jury panel must be taken before a juror is sworn and must be in writing specifying plainly and distinctly the facts constituting the ground of challenge.

Source:

C. Crim. P. 1877, § 315; R.C. 1895, § 8147; R.C. 1899, § 8147; R.C. 1905, § 9956; C.L. 1913, § 10793; R.C. 1943, § 29-1720.

Notes to Decisions

Arrest of Judgment.

Alleged procedural defects in drawing a jury can be taken advantage of only by challenge of the panel before the jury is sworn, and not by motion in arrest of judgment. State v. Probst, 63 N.D. 598, 249 N.W. 711, 1933 N.D. LEXIS 211 (N.D. 1933).

Challenge After Sworn.

Challenge to the panel must be in writing, specifying the facts, and cannot be taken after a juror is sworn. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003, 1890 N.D. LEXIS 6 (N.D. 1890).

29-17-21. Sufficiency of facts controverted — Procedure.

If the sufficiency of the facts alleged as a ground of challenge of a panel is controverted by the adverse party, that party may except to the challenge. The exception need not be in writing but must be entered upon the minutes of the court, and thereupon the court shall proceed to try the sufficiency of the challenge, assuming the facts therein alleged to be true.

Source:

C. Crim. P. 1877, § 316; R.C. 1895, § 8148; R.C. 1899, § 8148; R.C. 1905, § 9957; C.L. 1913, § 10794; R.C. 1943, § 29-1721.

Notes to Decisions

Uncontroverted Challenge.

Where facts alleged as ground for challenge were not controverted, there was no issue to try and ruling of court was not subject to appeal. State v. Lee, 78 N.D. 489, 50 N.W.2d 124, 1951 N.D. LEXIS 107 (N.D. 1951).

29-17-22. Facts stated in challenge denied — Procedure.

If, on the exception, the court deems the challenge to a panel sufficient, it, if justice requires it, may permit the party excepting to withdraw the party’s exception, and to deny the facts alleged in the challenge. If the exception is allowed, the court, in like manner, may permit an amendment of the challenge.

Source:

C. Crim. P. 1877, § 317; R.C. 1895, § 8149; R.C. 1899, § 8149; R.C. 1905, § 9958; C.L. 1913, § 10795; R.C. 1943, § 29-1722.

29-17-23. Trial of question of fact.

If facts alleged as the grounds of a challenge to a panel are denied, the denial, in like manner, may be oral and must be entered upon the minutes of the court, and the court shall proceed to try the questions of fact.

Source:

C. Crim. P. 1877, § 318; R.C. 1895, § 8150; R.C. 1899, § 8150; R.C. 1905, § 9959; C.L. 1913, § 10796; R.C. 1943, § 29-1723.

29-17-24. Officers may be examined.

Upon the trial of a challenge to a panel, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.

Source:

C. Crim. P. 1877, § 319; R.C. 1895, § 8151; R.C. 1899, § 8151; R.C. 1905, § 9960; C.L. 1913, § 10797; R.C. 1943, § 29-1724.

29-17-25. Challenge taken for officer’s bias.

When a jury is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form and determined in the same manner as if made to a juror.

Source:

C. Crim. P. 1877, § 320; R.C. 1895, § 8152; R.C. 1899, § 8152; R.C. 1905, § 9961; C.L. 1913, § 10798; R.C. 1943, § 29-1725.

Notes to Decisions

Sheriff’s Bias.

The test of the sheriff’s qualification to summon a special jury is whether he would be qualified to sit as a juror in the case. State v. Kent, 4 N.D. 577, 62 N.W. 631, 1895 N.D. LEXIS 51 (N.D. 1895).

Where sheriff testified under challenge that he had expressed opinion of guilt of accused, it is doubtful whether he would have been a competent juror notwithstanding fact that he testified he would give accused a fair and impartial trial. State v. Kent, 4 N.D. 577, 62 N.W. 631, 1895 N.D. LEXIS 51 (N.D. 1895).

29-17-26. Challenge allowed — Jury discharged.

If upon an exception to a challenge to a panel, or a denial of the facts, the challenge is allowed, the court shall discharge the jury, and another jury can be summoned for the same term forthwith from the body of the county, or the judge may order a jury to be drawn and summoned in the regular manner. If the challenge is disallowed, the court shall direct the jury to be impaneled.

Source:

C. Crim. P. 1877, § 321; R.C. 1895, § 8153; R.C. 1899, § 8153; R.C. 1905, § 9962; C.L. 1913, § 10799; R.C. 1943, § 29-1726.

29-17-27. Challenge to individual juror — Peremptory or for cause. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-28. Jurors examined by either party. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-29. Challenge taken before juror sworn. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-30. Peremptory challenge.

A peremptory challenge can be taken by either party and may be oral. It is an objection to a juror for which no reason need be given but upon which the court must exclude that juror.

Source:

C. Crim. P. 1877, § 325; R.C. 1895, § 8157; R.C. 1899, § 8157; R.C. 1905, § 9966; C.L. 1913, § 10803; R.C. 1943, § 29-1730.

Cross-References.

Trial jurors, see N.D.R.Crim.P., Rule 24.

Notes to Decisions

Standard of Review.

An appellate court reviews the trial court’s jury selection procedure using an abuse of discretion standard of review; if the defendant’s ability to exercise peremptory challenges was denied or impaired, relief is justified without a showing of prejudice. However, the defendant must show prejudice when it is alleged that technical errors or irregularities occurred which did not result in the impairment or denial of the defendant’s peremptory challenges. State v. Barth, 2001 ND 201, 637 N.W.2d 369, 2001 N.D. LEXIS 231 (N.D. 2001).

Collateral References.

50 C.J.S. Juries, §§ 342, 423-475.

Peremptory challenge after acceptance of juror, 3 A.L.R.2d 499.

Number of peremptory challenges allowable where there are two or more parties on same side, 21 A.L.R.3d 725.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury — post- Batson state cases, 47 A.L.R.5th 259.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation — Post-Batson state cases, 63 A.L.R.5th 375.

Validity, Construction, and Application of Right of Defendant in State Criminal Proceeding to Jury Composed Solely of United States Citizens. 36 A.L.R.6th 189.

29-17-31. Challenges to prosecution and defendant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-32. Challenge for cause. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

Collateral References.

Validity, Construction, and Application of Right of Defendant in State Criminal Proceeding to Jury Composed Solely of United States Citizens. 36 A.L.R.6th 189.

29-17-33. Challenges for cause defined and classified.

A challenge for cause is an objection to a particular juror and is either:

  1. General, that the juror is disqualified from serving in any case or trial; or
  2. Particular, that the juror is disqualified from serving in the case on trial.

Source:

C. Crim. P. 1877, § 329; R.C. 1895, § 8161; R.C. 1899, § 8161; R.C. 1905, § 9970; C.L. 1913, § 10807; R.C. 1943, § 29-1733.

Cross-References.

Trial jurors, see N.D.R.Crim.P., Rule 24.

Collateral References.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Fact that juror in criminal case, or juror’s relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743.

29-17-34. General causes of challenge specified.

General causes of challenges are:

  1. A want of any of the qualifications prescribed by law to render a person a competent juror, including a want of knowledge of the English language as used in the courts; and
  2. Unsoundness of mind or such defect in the faculties of the mind or organs of the body as renders the juror incapable of performing the duties of a juror.

Source:

C. Crim. P. 1877, § 330; R.C. 1895, § 8162; R.C. 1899, § 8162; R.C. 1905, § 9971; C.L. 1913, § 10808; R.C. 1943, § 29-1734; S.L. 1993, ch. 333, § 1.

Collateral References.

Use of intoxicating liquor by jurors, 7 A.L.R.3d 1040.

Social or business relationships between proposed juror and nonparty witness as affecting former’s qualification as juror, 11 A.L.R.3d 859.

Claustrophobia or other neurosis of juror, 20 A.L.R.3d 1420.

Prior service of juror on grand jury which considered indictment against accused, 24 A.L.R.3d 1236.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Beliefs of juror regarding capital punishment, 39 A.L.R.3d 550.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Prejudical effect of juror’s inability to comprehend English, 117 A.L.R.5th 1.

29-17-35. Particular causes of challenge specified.

Particular causes of challenge are of two kinds:

  1. A bias which, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this title as implied bias; and
  2. The existence of a state of mind on the part of the juror, with reference to the case or to either party, which satisfies the court, in the exercise of a sound discretion, that the juror cannot try the issue impartially without prejudice to the substantial rights of the party challenging, and which is known in this title as actual bias.

Source:

C. Crim. P. 1877, § 331; R.C. 1895, § 8163; R.C. 1899, § 8163; R.C. 1905, § 9972; C.L. 1913, § 10809; R.C. 1943, § 29-1735.

Notes to Decisions

Bias.
—Not Shown.

Where there is no evidence in the record that the jurors challenged for actual bias had an actual predisposition against the defendant, the trial court did not abuse its discretion in declining to excuse the jurors for cause. State v. Smaage, 547 N.W.2d 916, 1996 N.D. LEXIS 135 (N.D. 1996).

There was no obvious error affecting substantial rights because defendant failed to show that his jury was not impartial, and therefore defendant’s argument that his jury was not impartial because the jury questionnaires revealed that approximately one-third of the persons in the jury pool or their spouses were employed by state or county governments was rejected, because the record showed that the district court asked the jurors whether they could remain fair and impartial and they replied that they could. State v. Fischer, 2008 ND 32, 744 N.W.2d 760, 2008 N.D. LEXIS 21 (N.D. 2008).

Policemen As Jurors.

Part-time policemen are not automatically excluded as jurors; any exclusion must be based upon a showing of actual bias on a challenge of cause at the voir dire examination. State v. Ternes, 259 N.W.2d 296, 1977 N.D. LEXIS 211 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540, 1978 U.S. LEXIS 1280 (U.S. 1978).

Recall of Jury Panel After Dismissal.

Where defendant and state entered into a plea agreement immediately prior to trial and trial court dismissed, the jury panel telling them that they were not needed because a settlement had been reached, trial court’s recalling of the same jury panel after defendant revoked the plea agreement did not constitute actual bias per se. State v. Gross, 351 N.W.2d 428, 1984 N.D. LEXIS 313 (N.D. 1984).

State of Mind.

Although a juror testifies on his voir dire examination that the arrest and trial of one accused of crime might indicate to his mind “that there was something in it”, he is not disqualified. State v. Lesh, 27 N.D. 165, 145 N.W. 829, 1914 N.D. LEXIS 39 (N.D. 1914).

Trial court did not abuse its discretion in overruling defendant’s challenge for cause where prospective juror’s testimony during voir dire that she could not be impartial was the result of confusion which arose due to the nature of defense counsel’s questions, and further questioning by the trial court revealed that the prospective juror had expressed no opinion on defendant’s guilt or innocence and that she could be impartial and base her decision on the evidence. State v. McLain, 301 N.W.2d 616, 1981 N.D. LEXIS 227 (N.D. 1981).

Collateral References.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case, 39 A.L.R.4th 465.

Fact that juror in criminal case, or juror’s relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743.

Propriety of inquiry on voir dire as to juror’s attitude toward, or acquaintance with literature dealing with, amount of damage awards, 63 A.L.R.5th 285.

Examination and challenge of state case jurors on basis of attitudes toward homosexuality,80 A.L.R.5th 469.

29-17-36. Matters constituting implied bias specified.

A challenge for implied bias of a juror may be taken for all or any of the following causes, and for no other:

  1. Consanguinity or relationship to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant.
  2. The relationship of guardian and ward, attorney and client, master and servant, landlord and tenant, or debtor and creditor, or membership in the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or employment by either.
  3. Being a party adverse to the defendant in a civil action, or having complained against or been accused by the defendant in a criminal prosecution.
  4. Having served on the grand jury which found the indictment, or on a coroner’s jury which inquired into the death of a person whose death is the subject of the action.
  5. Having served on a trial jury which has tried another person for the offense charged.
  6. Having been one of a jury formerly sworn to try the same charge, and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it.
  7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.
  8. Repealed by S.L. 1975, ch. 106, § 673.
  9. Having served as a member of the jury panel within two years.

Source:

C. Crim. P. 1877, § 332; R.C. 1895, § 8164; R.C. 1899, § 8164; R.C. 1905, § 9973; C.L. 1913, § 10810; R.C. 1943, § 29-1736; S.L. 1975, ch. 106, § 673.

Notes to Decisions

Government Employment.

Government employment, by itself, does not disqualify a person from serving as a juror, but a government employee, like others, may be challenged for actual bias. City of Bismarck v. Holden, 522 N.W.2d 471, 1994 N.D. LEXIS 215 (N.D. 1994).

There was no obvious error affecting substantial rights because defendant failed to show that his jury was not impartial, and therefore defendant’s argument that his jury was not impartial because the jury questionnaires revealed that approximately one-third of the persons in the jury pool or their spouses were employed by state or county governments was rejected, because the record showed that the district court asked the jurors whether they could remain fair and impartial and they replied that they could. State v. Fischer, 2008 ND 32, 744 N.W.2d 760, 2008 N.D. LEXIS 21 (N.D. 2008).

Juror Serving on Jury Which Has Tried Another Person for Offense Charged.

This section permits a challenge for cause on the ground of implied bias of a juror who served on a trial jury which has tried another person for violating the same law or statutory provision for which the defendant has been charged, irrespective of whether or not the other person’s charge involves the same event or incident upon which the defendant’s charge is based. State v. Rummel, 326 N.W.2d 64, 1982 N.D. LEXIS 332 (N.D. 1982).

Policeman as Juror.

Being a badge-carrying police officer and the son of a part-time police officer are not grounds to challenge a prospective juror for implied bias. State v. Ternes, 259 N.W.2d 296, 1977 N.D. LEXIS 211 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540, 1978 U.S. LEXIS 1280 (U.S. 1978).

Relationship with Counsel.

Where the challenged juror never had a direct attorney-client relationship with the prosecuting attorney, and the relationship that they did have had ended by the time of trial, the trial court did not abuse its discretion in declining to excuse the juror under subsection (2). State v. Smaage, 547 N.W.2d 916, 1996 N.D. LEXIS 135 (N.D. 1996).

In trial of attorney for driving under the influence, trial court did not abuse its discretion by refusing to excuse for cause a juror who was a former client of attorney’s law firm, where the record failed to show a direct and current client relationship. State v. Thompson, 552 N.W.2d 386, 1996 N.D. LEXIS 199 (N.D. 1996).

Pursuant to N.D.C.C. § 29-17-36, a challenge for cause had to be granted if an implied bias had been established, and the district court abused its discretion in failing to grant defendant’s challenge for cause of two jurors because of their current attorney-client relationship with the prosecutor; however, because defendant used a peremptory challenge to exclude one of the jurors and the other juror was released as an alternate juror before the jury began its deliberations, no biased jurors sat on his case and defendant was not deprived of any rights. State v. Jaster, 2004 ND 223, 690 N.W.2d 213, 2004 N.D. LEXIS 368 (N.D. 2004).

District court did not abuse its discretion in denying defendant's challenge of two jurors for cause, both of whom had previously had a professional relationship with the state's attorneys who were prosecuting defendant. The record showed that any attorney-client relationship between the potential jurors and the state's attorney and assistant state's attorney had ended many years ago. State v. Garnder, 2016 ND 161, 883 N.W.2d 471, 2016 N.D. LEXIS 163 (N.D. 2016).

Defendant’s challenges to jurors who knew or had been represented by the prosecutor were correctly denied because (1) the prosecutor did not currently represent any juror, and (2) jurors affirmed the jurors would be impartial. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Collateral References.

Failure of juror in criminal case to disclose his previous jury service within disqualifying period as ground for reversal, 13 A.L.R.2d 1482.

Religious belief — challenge on voir dire, 95 A.L.R.3d 172.

Beliefs regarding capital punishment as disqualifying juror in capital case for cause, 39 A.L.R.3d 550.

Former law enforcement officers as jurors, 72 A.L.R.3d 958.

29-17-37. Exemption is not cause.

An exemption from service on a jury is not a cause of challenge but the privilege of the person exempted.

Source:

C.Crim.P. 1877, § 333; R.C. 1895, § 8165; R.C. 1899, § 8165; R.C. 1905, § 9974; C.L. 1913, § 10811; R.C. 1943, § 29-1737.

29-17-38. How challenge taken — Cause stated.

In a challenge for implied bias, one or more of the causes stated in section 29-17-36 must be alleged. In a challenge for actual bias, the cause stated in subsection 2 of section 29-17-35 must be alleged, but no person may be disqualified as a juror by reason of the fact that the person may have heard from others or read in newspapers or public journals any statement or statements with regard to the case to be submitted to the jury, if it appears to the satisfaction of the court that the impression remaining upon the mind of such person from the statements so communicated to the person will not prevent the person from trying the case fairly and impartially. The challenge may be oral but must be entered upon the minutes of the court.

Source:

C.Crim.P. 1877, § 334; R.C. 1895, § 8166; S.L. 1897, ch. 39, § 1; R.C. 1899, § 8166; R.C. 1905, § 9975; C.L. 1913, § 10812; R.C. 1943, § 29-1738.

Notes to Decisions

Conversation.

Fact that juror talked with one who knew the facts, although not a witness, would not disqualify him. State v. Ekanger, 8 N.D. 559, 80 N.W. 482, 1899 N.D. LEXIS 49 (N.D. 1899).

Formation of Opinion.

Fact that person called as juror may have formed an opinion or received an impression concerning the case from conversations or newspaper reports does not of itself disqualify the juror, even where it would require evidence to remove the impression or opinion. State v. Ekanger, 8 N.D. 559, 80 N.W. 482, 1899 N.D. LEXIS 49 (N.D. 1899).

Newspapers.

Persons who subscribed to a newspaper which carried story of crime of which accused is charged shall not be subject to challenge as jurors for this cause alone. Territory v. Egan, 13 N.W. 568, 3 Dakota 119, 1882 Dakota LEXIS 10 (Dakota 1882).

The fact that a person has read the newspaper accounts of the alleged crime does not ordinarily disqualify such person to serve as a juror. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508, 1950 N.D. LEXIS 173 (N.D. 1950).

Satisfaction of Court.

Decision of trial court that impression on proposed juror’s mind will not prevent him from fairly and impartially trying the case is not conclusive, but is entitled to great respect. State v. Ekanger, 8 N.D. 559, 80 N.W. 482, 1899 N.D. LEXIS 49 (N.D. 1899).

29-17-39. Exception to the challenge. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-40. All challenges tried by the court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-41. Juror challenged a witness. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-42. Other witnesses may be examined — Rules of evidence. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-43. Court must allow or disallow challenge. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-44. Order of taking challenges.

All challenges to an individual juror, except peremptory, must be taken, first by the defendant, and then by the state, and each party shall exhaust all of that party’s challenges before the other begins.

Source:

C.Crim.P. 1877, § 340; R.C. 1895, § 8172; R.C. 1899, § 8172; R.C. 1905, § 9981; C.L. 1913, § 10818; R.C. 1943, § 29-1744.

29-17-45. Order of challenges for cause.

The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:

  1. To the panel;
  2. To an individual juror for a general disqualification;
  3. To an individual juror for implied bias; and
  4. To an individual juror for actual bias.

Source:

C.Crim.P. 1877, § 341; R.C. 1895, § 8173; R.C. 1899, § 8173; R.C. 1905, § 9982; C.L. 1913, § 10819; R.C. 1943, § 29-1745.

29-17-46. Peremptory challenges taken.

If all challenges on both sides are disallowed, either party, first the state and then the defendant, may take a peremptory challenge, unless the party’s peremptory challenges are exhausted.

Source:

C.Crim.P. 1877, § 342; R.C. 1895, § 8174; R.C. 1899, § 8174; R.C. 1905, § 9983; C.L. 1913, § 10820; R.C. 1943, § 29-1746.

Notes to Decisions

Waiver of Challenge.

Peremptory challenges must be used alternatively, beginning with the state. When presented with the opportunity to challenge, the party may exercise a peremptory challenge; but upon waiving a peremptory, it must be considered an exhaustion of that peremptory. City of Dickinson v. Lindstrom, 1998 ND 52, 575 N.W.2d 440, 1998 N.D. LEXIS 47 (N.D. 1998).

29-17-47. Alternate jurors, selection — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-17-48. Alternate jurors, oath — Duties. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

CHAPTER 29-18 Dismissal of Prosecution [Repealed]

[Superseded by North Dakota Rules of Civil Procedure, Rule 48]

CHAPTER 29-19 Continuance

29-19-01. Definition of continuance.

A continuance, within the meaning of this chapter, is the postponement of a cause for any period of time.

Source:

C.Crim.P. 1877, § 309; R.C. 1895, § 8141; R.C. 1899, § 8141; R.C. 1905, § 9950; C.L. 1913, § 10787; R.C. 1943, § 29-1901.

29-19-02. Right to speedy trial.

In a criminal prosecution, the state and the defendant each shall have the right to a speedy trial. The right to a speedy trial in a criminal case in which the charging instrument contains a charge of a felony offense under section 19-03.1-23 or under chapter 12.1-20 is for the trial to begin within ninety days of the date the party elects this right. The prosecution and the defendant shall elect this right within fourteen days following the arraignment. The court may allow the trial to begin later than ninety days of the arraignment for good cause.

Source:

N.D. Const., § 13; R.C. 1943, § 29-1902; S.L. 1999, ch. 293, § 1.

Notes to Decisions

Speedy Trial Denied.

Defendant’s right to a speedy trial was violated because (1) defendant timely elected defendant’s right to a speedy trial, and, (2) after denying the State’s motion to continue, finding no good cause was shown, the court rescheduled the case twice outside the required 90-day time period without explanation or finding good cause. State v. Watson, 2019 ND 164, 930 N.W.2d 145, 2019 N.D. LEXIS 170 (N.D. 2019).

Speedy Trial Not Denied.

Defendant was not denied his right to a speedy trial where his attempts to invoke Interstate Agreement on Detainers did not constitute a proper request for a speedy trial, much of the delay was attributable to motions filed by the defendant, and the defendant did not demonstrate that his ability to defend against charges was impaired by the delay. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Defendant’s request for a speedy trial was denied where he did not elect this right within fourteen days of his arraignment, which was held on June 19, 2006; thus, while defendant did request a speedy trial, his request to be tried within the ninety-day period was untimely. Everett v. State, 2008 ND 199, 757 N.W.2d 530, 2008 N.D. LEXIS 222 (N.D. 2008).

Defendant was not deprived of his speedy trial rights under the United States or North Dakota Constitutions because the reason for the delay was precipitated by defendant's act of effectively firing his first counsel; the extent of the delay involved reasonable scheduling considerations for an anticipated five-day jury trial and the designation of a second court-appointed counsel. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

District court properly rejected defendant's claim that the State violated his right to a speedy trial because, while the district court scheduled a trial 96 days after defendant submitted his request to the Department of Corrections and 82 days after the district court and State's attorney had each received it, the 90-day period began when the district court and the State's attorney received defendant's request for a speedy trial and charges were statutorily required to be dismissed if not brought to trial within 90 days after the receipt of the request and certificate by the court and prosecuting official. State v. Gibson, 2017 ND 15, 889 N.W.2d 852, 2017 N.D. LEXIS 19 (N.D. 2017).

Denying defendant's speedy trial claim under N.D.C.C. § 29-19-02 was not error where the speedy trial demand was made more than 90 days after arraignment, which constituted good cause, and the district court had attempted to schedule the trial as soon as possible. State v. Hall, 2017 ND 124, 894 N.W.2d 836, 2017 N.D. LEXIS 120 (N.D. 2017).

Postconviction petitioner's statutory election of a speedy trial right was untimely where the trial was held within 90 days of arraignment. Koenig v. State, 2018 ND 59, 907 N.W.2d 344, 2018 N.D. LEXIS 42 (N.D. 2018).

Defendant’s right to a speedy trial was not violated in two counties because (1) continuances were granted based on the primary witness’s unavailability, (2) delays were short, considering the severity of the crimes, (3) there was no fault by the State, which provided statutorily required information, (4) the State did not have to subpoena the witness, and (5) defendant was not prejudiced, as, while defendant was incarcerated awaiting trial, defendant did not claim another month of incarceration was “oppressive” or caused anxiety or impaired the defense. State v. Watson, 2019 ND 164, 930 N.W.2d 145, 2019 N.D. LEXIS 170 (N.D. 2019).

State’s requests for a second and a third continuance were properly granted as a formal motion was not required, and the delays benefitted defendant by providing him the DNA evidence he wanted, increasing the jury pool, and allowing more time for trial. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

Even if the State had not complied with N.D.C.C. § 29-19-06, granting the first continuance was not an abuse of discretion as the two-day delay was not presumptively prejudicial, defendant did not argue prejudice, the charged offenses were not minor, and two witnesses, evidence, and the prosecutor were unavailable. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

State’s motion for a continuance was properly granted where although the court did not address the N.D.C.C. § 29-19-06 factors, the State’s supporting affidavit noted the unavailability of the prosecutor and court ruling on in camera review that required the State to provide defendant with additional redacted records. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

District court did not violate defendant’s right to a speedy trial by continuing the trial because his letter requesting dismissal based on a violation of his right to a speedy trial was written to the court while he was represented by counsel, he asserted no factual or legal support for the request, did not include any discussion of the four-part test to be used in reviewing potential speedy trial violations, did not renew or expand on that request with regard to the rescheduling of the trial date or the trial date, and although the general statutory right to a speedy trial applied, the speedy trial period of 90 days did not apply since defendant was not charged under the statutory provisions that triggered the provision. State v. Wayland, 2020 ND 106, 942 N.W.2d 841, 2020 N.D. LEXIS 106 (N.D. 2020).

Speedy Trial Right.

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Waiver.

A plea of guilty constitutes a waiver of the right to a speedy trial. State v. Wunderlich, 338 N.W.2d 658, 1983 N.D. LEXIS 351 (N.D. 1983).

29-19-03. Court may grant continuance.

The court, upon a showing of sufficient cause therefor by either party, may direct the trial of a cause to be postponed to another day in the same term or to the next term.

Source:

C.Crim.P. 1877, § 309; R.C. 1895, § 8141; R.C. 1899, § 8141; R.C. 1905, § 9950; C.L. 1913, § 10787; R.C. 1943, § 29-1903.

Collateral References.

Hostile sentiment or prejudice as ground for continuance of criminal trial, 39 A.L.R.2d 1314.

Right of accused to continuance because of absence of witness who is fugitive from justice, 42 A.L.R.2d 1229.

Counsel’s absence because of attendance on legislature, as ground for continuance, 49 A.L.R.2d 1073.

Continuance of criminal case because of illness of accused, 66 A.L.R.2d 232.

Continuance of criminal case because of illness or death of counsel, 66 A.L.R.2d 267.

Motion for continuance as remedy for infringement of right of accused to communicate with his attorney, 5 A.L.R.3d 1360.

Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance, 73 A.L.R.3d 725.

29-19-04. Cause for postponement.

Any cause that would be considered adequate for a postponement of a civil action is sufficient in a criminal action.

Source:

C.Crim.P. 1877, § 309; R.C. 1895, § 8141; R.C. 1899, § 8141; R.C. 1905, § 9950; C.L. 1913, § 10787; District Court Rule No. 15; R.C. 1943, § 29-1904.

Notes to Decisions

Avoiding Continuance.

In order to avoid continuance on defendant’s application, state may stipulate as to what absent witness would have testified. State v. Uhler, 32 N.D. 483, 156 N.W. 220, 1916 N.D. LEXIS 131 (N.D. 1916).

Insufficient Cause.

Statement of defendant that he had been advised by his physician that he was unwell would not justify a continuance. State v. Gordon, 32 N.D. 31, 155 N.W. 59, 1915 N.D. LEXIS 59 (N.D. 1915).

Affidavit which does not set forth real proof of public excitement or prejudice is not sufficient. State v. Gordon, 32 N.D. 31, 155 N.W. 59, 1915 N.D. LEXIS 59 (N.D. 1915).

29-19-05. When application for continuance to be made.

An application for a continuance may be made when a criminal action is called for trial, or at any time previous thereto.

Source:

C.Crim.P. 1877, § 309; R.C. 1895, § 8141; R.C. 1899, § 8141; R.C. 1905, § 9950; C.L. 1913, § 10787; R.C. 1943, § 29-1905.

29-19-06. Application for continuance on ground of absent witness.

An application for a continuance on the ground that a witness is absent must show:

  1. That the applicant has used due diligence to prepare for the trial;
  2. The nature of the diligence used;
  3. The name and residence of the absent witness;
  4. What the applicant expects or believes such witness would testify were that witness present and orally examined in court;
  5. That the testimony of the witness is material;
  6. The nature of any document wanted and where the same may be found;
  7. That the same facts cannot be satisfactorily shown by other evidence; and
  8. That the witness is not absent through the connivance or counsel of the applicant.

Source:

District Court Rule No. 15; R.C. 1943, § 29-1906.

Notes to Decisions

Motion Denied.

District court did not abuse its discretion in denying defendant's request for a continuance or a dismissal because defendant did not established that he was prejudiced by the State's conduct; the State was not required to call as witnesses all individuals endorsed on the information, and defendant did not appear to have subpoenaed police officers to testify nor did he call them as hostile witnesses. State v. Newark, 2017 ND 209, 900 N.W.2d 807, 2017 N.D. LEXIS 218 (N.D. 2017).

Speedy Trial Not Denied.

Defendant’s right to a speedy trial was not violated in two counties because (1) continuances were granted based on the primary witness’s unavailability, (2) delays were short, considering the severity of the crimes, (3) there was no fault by the State, which provided statutorily required information, (4) the State did not have to subpoena the witness, and (5) defendant was not prejudiced, as, while defendant was incarcerated awaiting trial, defendant did not claim another month of incarceration was “oppressive” or caused anxiety or impaired the defense. State v. Watson, 2019 ND 164, 930 N.W.2d 145, 2019 N.D. LEXIS 170 (N.D. 2019).

State’s motion for a continuance was properly granted where although the court did not address the N.D.C.C. § 29-19-06 factors, the State’s supporting affidavit noted the unavailability of the prosecutor and court ruling on in camera review that required the State to provide defendant with additional redacted records. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

Even if the State had not complied with N.D.C.C. § 29-19-06, granting the first continuance was not an abuse of discretion as the two-day delay was not presumptively prejudicial, defendant did not argue prejudice, the charged offenses were not minor, and two witnesses, evidence, and the prosecutor were unavailable. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

State’s requests for a second and a third continuance were properly granted as a formal motion was not required, and the delays benefitted defendant by providing him the DNA evidence he wanted, increasing the jury pool, and allowing more time for trial. State v. Mondragon, 2020 ND 21, 937 N.W.2d 531, 2020 N.D. LEXIS 20 (N.D. 2020).

29-19-07. Application for continuance on ground defendant or attorney is member of assembly — Grounds.

An application for a continuance on the ground that the defendant or the defendant’s attorney of record is a member of either house of the legislative assembly must show:

  1. That the legislative assembly then is, or at the time of trial, will be in session;
  2. If made by the attorney, that the person has been the attorney of record for the defendant for more than fifteen days prior to the making of the application;
  3. That the applicant is a member of one of the houses of the legislative assembly;
  4. That the applicant then is, or at the beginning of the term of court in which said action is pending will be, actually engaged in the person’s duties in the assembly; and
  5. That the applicant’s attendance is necessary to a fair and proper trial of said action.

Service of the application must be made at least ten days before the opening of the term of court at which such action is pending. The case may not be tried over the objection of the defendant within ten days after the adjournment of the legislative assembly.

Source:

S.L. 1899, ch. 47, § 1; R.C. 1899, § 5722a; R.C. 1905, § 7329; S.L. 1909, ch. 4, § 1; C.L. 1913, § 7949; S.L. 1921, ch. 130, § 1; 1925 Supp., § 7949; R.C. 1943, § 29-1907.

Cross-References.

When a party to an action or the attorney therefor is a member of the legislative assembly, see § 54-03-22.

Collateral References.

Counsel’s absence because of attendance on legislature, as ground for continuance, 49 A.L.R.2d 1073.

29-19-08. Application for continuance to be in writing — Contents.

An application for a continuance must be in writing unless otherwise ordered by the court. Such application must specify the ground or grounds upon which it is based and must be filed by the state’s attorney or counsel for the defendant, as the case may be.

Source:

C.Crim.P. 1877, § 309; R.C. 1895, § 8141; R.C. 1899, § 8141; R.C. 1905, § 9950; C.L. 1913, § 10787; R.C. 1943, § 29-1908.

Notes to Decisions

Continuance to Obtain Testimony.

The affidavits for a continuance to obtain testimony must be explicit. State v. Murphy, 9 N.D. 175, 82 N.W. 738, 1900 N.D. LEXIS 212 (N.D. 1900).

Waiver of Objection.

Acquiescence of defendant on oral application made by state for a continuance was a bar to later objection on this point. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

29-19-09. Hearing of application and action thereon.

The party applying for a continuance may file affidavits in support of that application and counter affidavits may be received or denied as the court may direct.

Source:

C.Crim.P. 1877, § 309; R.C. 1895, § 8141; R.C. 1899, § 8141; R.C. 1905, § 9950; C.L. 1913, § 10787; District Court Rule No. 15; R.C. 1943, § 29-1909.

29-19-10. Entry of reasons for continuance in minutes of court.

Whenever a continuance is granted, the reasons therefor must be entered in the minutes of the court.

Source:

R.C. 1943, § 29-1910.

29-19-11. Continuance when there are several defendants.

When there are several defendants and a continuance is granted on the application of one or more but not of all defendants, the trial of the other defendants must proceed unless the court otherwise directs.

Source:

R.C. 1943, § 29-1911.

CHAPTER 29-20 Determination of Defendant’s Mental Condition [Repealed]

[Repealed by S.L. 1973, ch. 116, § 41]

Note.

For present provisions, see § 12.1-04.1-01 et seq.

CHAPTER 29-21 Trial

29-21-01. Order of trial.

The jurors having been impaneled and sworn, the trial must proceed in the following order:

  1. If the information or indictment is for a felony, the clerk or state’s attorney shall read it, and shall state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.
  2. The state’s attorney, or other counsel for the state, shall open the case and offer the evidence in support of the information or indictment.
  3. The defendant or the defendant’s counsel then may open the defense and offer the defendant’s evidence in support thereof.
  4. The parties then, respectively, may offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, or to correct an evident oversight, permits them to offer evidence upon their original case.
  5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the counsel for the state shall commence, and the defendant or the defendant’s counsel shall follow. Then the counsel for the state shall conclude the argument to the jury.
  6. The judge then shall charge the jury.

Source:

C.Crim.P. 1877, § 343; R.C. 1895, § 8175; R.C. 1899, § 8175; R.C. 1905, § 9984; C.L. 1913, § 10821; R.C. 1943, § 29-2101.

Notes to Decisions

Charge.

The charge of the court may be oral, unless it is requested in writing. Territory v. Christensen, 31 N.W. 847, 4 Dakota 410, 1887 Dakota LEXIS 6 (Dakota 1887).

The court must mark requests for instructions either “given” or “refused”. State v. Campbell, 7 N.D. 58, 72 N.W. 935, 1897 N.D. LEXIS 45 (N.D. 1897).

The trial court, in charging the jury, cannot give expression to its views upon the credibility, weight or effect of testimony. State v. Barry, 11 N.D. 428, 92 N.W. 809, 1902 N.D. LEXIS 153 (N.D. 1902).

A trial judge is prohibited from expressing an opinion upon the facts. State v. Hazlett, 14 N.D. 490, 105 N.W. 617, 1905 N.D. LEXIS 80 (N.D. 1905).

Discretion As to Order.

Trial court is vested with a broad discretion in regard to the order of proof at trials, and, except in cases of clear abuse of such discretion, his decision will not be disturbed. State v. Werner, 16 N.D. 83, 112 N.W. 60, 1907 N.D. LEXIS 26 (N.D. 1907).

It is within the discretion of the court to allow the prosecution to give evidence in aid of the case already made, after the defense has rested, although the evidence is in contradiction of matters sworn to by the prisoner. State v. Schneider, 53 N.D. 931, 208 N.W. 566, 1926 N.D. LEXIS 39 (N.D. 1926).

It is within the discretion of the trial court to allow the state in a criminal prosecution to give evidence in aid of its case already made after the defense has rested. State v. Puhr, 316 N.W.2d 75, 1982 N.D. LEXIS 228 (N.D. 1982).

Opening Statement by Prosecutor.

It was not error for prosecutor to read the bill of particulars and the amended indictment to the jury during his opening statement. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Order of Trial.

District court’s denial of defendant’s motion for a mistrial was not an abuse of discretion because the district court did not alter the order of trial but addressed the situation of a witness who had earlier appeared at trial but was unexpectedly no longer available to appear. State v. Tyler, 2019 ND 246, 933 N.W.2d 918, 2019 N.D. LEXIS 245 (N.D. 2019).

Postponing Ruling.

Trial court did not act arbitrarily, unconscionably, or unreasonably in postponing its ruling on the admissibility, for purposes of impeachment, of a statement made by defendant, which defendant claimed unfairly influenced his decision to testify on his own behalf. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

Reading of Complaint.

In a gross sexual imposition case where the jury had to unanimously agree which sexual act or acts the defendant engaged in to find him guilty, a district court's failure to include information in the jury instructions identifying the underlying act for each count of the offense or to instruct the jury that it had to unanimously agree on the underlying act for each count constituted an obvious error; the complaint was not read to the jury and a copy of the complaint was not given to the jury with the jury instructions. State v. Martinez, 2015 ND 173, 865 N.W.2d 391, 2015 N.D. LEXIS 195 (N.D. 2015).

Reading of Indictment.

Where the prosecuting attorney has stated the offense charged, and the defendant’s plea, to each juror as he was impaneled, and after the jury had been sworn to try the case, he, in his opening remarks, stated to them the allegations of the indictment in substance, and the plea and the proposed proof, the jurors were sufficiently informed to try the issue regardless of the specific requirement that the indictment and the plea of the defendant must be read to the jurors. Territory v. King, 50 N.W. 623, 6 Dakota 131, 1889 Dakota LEXIS 48 (Dakota 1889).

Inadvertent reading of the information by the trial court, rather than by the clerk or state’s attorney, did not prevent defendant from having a fair trial. State v. Ellvanger, 453 N.W.2d 810, 1990 N.D. LEXIS 72 (N.D. 1990).

Reopening Case.

Decision as to whether or not to allow a party to reopen his case is a matter that lies within trial court’s discretion. State v. Mayer, 356 N.W.2d 149, 1984 N.D. LEXIS 403 (N.D. 1984).

Because the state had attempted to locate witness earlier, because witness was not a surprise witness, and because the trial court addressed the jury in an impartial manner regarding witness’s belated testimony, the court did not abuse its discretion by allowing the state to reopen its case after it had rested. State v. Jones, 557 N.W.2d 375, 1996 N.D. LEXIS 266 (N.D. 1996).

Stating Plea to Jury.

Where there was an initial failure by the state or the clerk to inform the jury that defendant had pled not guilty to the charges in the indictment, trial court did not abuse its discretion in permitting the state to recite defendant’s not guilty plea to the jury after a witness had testified. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Surrebuttal.

The right of surrebuttal is discretionary with the trial court. State v. Goulet, 1999 ND 80, 593 N.W.2d 345, 1999 N.D. LEXIS 85 (N.D. 1999).

Defendant who made no offer of proof pertaining to his proposed surrebuttal evidence failed to preserve the issue for appellate review. State v. Goulet, 1999 ND 80, 593 N.W.2d 345, 1999 N.D. LEXIS 85 (N.D. 1999).

Variation in Swearing Jury.

Inasmuch as no objection was made by the defendant on the record to a variation in the usual trial procedure of having the jury sworn at the beginning of the trial prior to opening statements and preliminary instructions, this issue was not preserved for appeal. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

Collateral References.

Prosecutor’s appeal in criminal case to self-interest or prejudice of jurors as taxpayers as ground for reversal, new trial, or mistrial, 60 A.L.R.4th 1063.

29-21-02. Order of trial may be changed for cause.

When the state of the pleadings requires it, or in any other case, for good reasons and in the sound discretion of the court, the order of trial and argument prescribed in section 29-21-01 may be departed from.

Source:

C.Crim. P. 1877, § 344; R.C. 1895, § 8180; R.C. 1899, § 8180; R.C. 1905, § 9989; C.L. 1913, § 10826; R.C. 1943, § 29-2102.

Notes to Decisions

Chain of Custody.

It was not error for trial court to allow state to recall police witness to correct his testimony from the previous day and establish necessary chain of custody in marijuana case. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

Discretion of Court.

Permitting state to recall defense witness after the defense rested, although witness had immediately prior thereto been interrogated by counsel for both parties and by the court, was a matter within trial court’s discretion, and was not in excess of its powers under this section. State v. Otto, 245 N.W.2d 885, 1976 N.D. LEXIS 136 (N.D. 1976).

Decision as to whether or not to allow a party to reopen his case is a matter that lies within trial court’s discretion. State v. Mayer, 356 N.W.2d 149, 1984 N.D. LEXIS 403 (N.D. 1984).

Because the state had attempted to locate witness earlier, because witness was not a surprise witness, and because the trial court addressed the jury in an impartial manner regarding witness’s belated testimony, the court did not abuse its discretion by allowing the state to reopen its case after it had rested. State v. Jones, 557 N.W.2d 375, 1996 N.D. LEXIS 266 (N.D. 1996).

Variation in Swearing Jury.

Inasmuch as no objection was made by the defendant on the record to a variation in the usual trial procedure of having the jury sworn at the beginning of the trial prior to opening statements and preliminary instructions, this issue was not preserved for appeal. State v. Reil, 409 N.W.2d 99, 1987 N.D. LEXIS 359 (N.D. 1987).

29-21-03. Court to decide questions of law.

The court shall decide all questions of law which arise in the course of the trial.

Source:

C. Crim. P. 1877, § 345; R.C. 1895, § 8181; R.C. 1899, § 8181; R.C. 1905, § 9990; C.L. 1913, § 10827; R.C. 1943, § 29-2103.

Notes to Decisions

Duty of Court.

It is the duty of the trial court to decide all questions of law. Territory v. Stone, 4 N.W. 697, 2 Dakota 155, 1879 Dakota LEXIS 4 (Dakota 1879); STATE ex rel. JOHNSON v. THOMSON, 76 N.D. 125, 34 N.W.2d 80, 1948 N.D. LEXIS 66 (N.D. 1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Whether or not an unloaded BB gun was a dangerous weapon was a question of fact for the jury’s determination; once the jury made that factual finding, and the others required to reach a verdict, the question of sentencing, a legal question, was for the court to decide. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

Probable Cause.

The question of probable cause is one of law to be determined by the court for the purpose of admitting or suppressing evidence. City of Langdon v. Delvo, 390 N.W.2d 51, 1986 N.D. LEXIS 363 (N.D. 1986).

29-21-04. Jurors generally determine only facts.

On the trial of an information or indictment for any offense other than libel, questions of law are to be decided by the court, and, although the jurors have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.

Source:

C. Crim. P. 1877, § 347; R.C. 1895, § 8183; R.C. 1899, § 8183; R.C. 1905, § 9992; C.L. 1913, § 10829; R.C. 1943, § 29-2104.

Cross-References.

Jury may determine law and fact on trial for libel, see N.D. Const., Art. I, § 4.

Notes to Decisions

Error of Law.

If trial court commits error of law and excludes competent evidence which thereby deprives defendant of his only real defense, such erroneous action is subject to reversal if and when properly challenged, but binding until reversed. STATE ex rel. JOHNSON v. THOMSON, 76 N.D. 125, 34 N.W.2d 80, 1948 N.D. LEXIS 66 (N.D. 1948), decided prior to the adoption of N.D.R.Crim.P., Rule 21.

Responsibility of Jury.

Whether or not an unloaded BB gun was a dangerous weapon was a question of fact for the jury’s determination; once the jury made that factual finding, and the others required to reach a verdict, the question of sentencing, a legal question, was for the court to decide. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

State’s comments in closing argument about what North Dakota law provided, in response to defendant’s closing argument, did not result in defendant receiving in unfair trial in a case where defendant was convicted of actual physical control in violation of N.D.C.C. § 39-08-01. The trial court on defendant’s objection instructed the jury to disregard the comment and follow the instructions that the trial court gave the jury, and not only was the jury presumed to have followed the trial court’s jury instructions, but it was required to follow the law pursuant to N.D.C.C. § 29-21-04. State v. Garcia, 2012 ND 11, 812 N.W.2d 328, 2012 N.D. LEXIS 16 (N.D. 2012).

Collateral References.

Weight and sufficiency of fingerprint, palm print, or bare footprint evidence as question for jury, 28 A.L.R.2d 1115, 1136.

Entrapment to commit offense with respect to gambling or lotteries, as question for jury, 31 A.L.R.2d 1212.

Entrapment to commit offense with respect to narcotics law as question for jury, 33 A.L.R.2d 883.

Issue of concealment as jury question in prosecution for carrying concealed weapon, 43 A.L.R.2d 492.

Application in specific instances of statute making reckless driving a criminal offense as presenting question of fact, 52 A.L.R.2d 1337.

Extent of premises which may be defended without retreat under right of self-defense as question of law or fact, 52 A.L.R.2d 1458.

Spontaneity of declaration sought to be admitted as part of res gestae as question for court or ultimately for jury, 56 A.L.R.2d 372.

Credibility of witness giving uncontradicted testimony as matter for court or jury in criminal case, 62 A.L.R.2d 1191.

Question of law and fact in prosecution against motor vehicle operator for fatal accident arising from physical defect, illness, drowsiness, or falling asleep, 63 A.L.R.2d 983.

Plea of guilty, determination of punishment in capital case by court or jury on, 89 A.L.R.2d 540.

Trailing by dogs, weight and sufficiency of evidence as to, as for jury, 18 A.L.R.3d 1221.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Materiality of testimony forming basis of perjury charge as question for court or jury, 37 A.L.R.4th 948.

Admissibility and weight of blood-grouping tests in disputed paternity cases, 43 A.L.R.4th 579.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Evidence of Trailing by Dogs in Criminal Cases, 81 A.L.R.5th 563.

29-21-05. Presumption of innocence — Acquittal on reasonable doubt.

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether the defendant’s guilt is satisfactorily shown, the defendant is entitled to be acquitted.

Source:

C. Crim. P. 1877, § 349; R.C. 1895, § 8185; R.C. 1899, § 8185; R.C. 1905, § 9994; C.L. 1913, § 10831; R.C. 1943, § 29-2105.

Notes to Decisions

Appeal.

To successfully challenge the sufficiency of evidence on appeal, defendant must show that the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

Presumption of Innocence.

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Probable Cause Distinguished.

Attempted robbery charge against codefendant required proof beyond a reasonable doubt, a very high burden of proof, and district court’s mid-trial acquittal in codefendant’s case did not in any way undercut juvenile court’s finding of probable cause in transfer hearing, a minimal burden of proof, to believe the juvenile assisted in an attempted robbery. Dawson v. Martinez (In re C.R.M.), 552 N.W.2d 324, 1996 N.D. LEXIS 162 (N.D. 1996).

Reasonable Doubt.

There must be in the minds of the jury an abiding conviction to a moral certainty of the truth of the charge, derived from a comparison and consideration of the evidence. Territory v. Bannigan, 46 N.W. 597, 1 Dakota 451, 1877 Dakota LEXIS 11 (Dakota 1877).

In case of reasonable doubt, it is presumed that the defendant is innocent. State v. Campbell, 7 N.D. 58, 72 N.W. 935, 1897 N.D. LEXIS 45 (N.D. 1897).

Every defendant in a criminal action is presumed to be innocent until the contrary is proved beyond a reasonable doubt. State v. Anderson, 116 N.W.2d 623, 1962 N.D. LEXIS 82 (N.D. 1962).

Request for Instructions.

It is reversible error to refuse request to give proper instructions on presumption of innocence, but accused cannot complain of omission to so instruct when he makes no request. State v. Bowe, 57 N.D. 89, 220 N.W. 843, 1928 N.D. LEXIS 99 (N.D. 1928).

Sufficiency of Evidence.

A defendant was improperly convicted of the crime of purchasing intoxicating liquor for persons under the age of twenty-one years in violation of section 5-01-26 (since repealed) where the evidence, although showing that defendant had bought beer for minors, did not show that the beer contained more than four percent of alcohol by weight within the statutory definition of “intoxicating liquor” under subsection 2 of section 5-01-01 (since repealed). State v. Anderson, 116 N.W.2d 623, 1962 N.D. LEXIS 82 (N.D. 1962).

Collateral References.

Sufficiency of evidence of malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.

Degree of proof of pregnancy in prosecution for abortion, 46 A.L.R.2d 1393.

Sufficiency of evidence in prosecution for forgery based on use of fictitious or assumed name, 49 A.L.R.2d 852, 876.

Proof under statute making solicitation to commit crime a substantive offense, 51 A.L.R.2d 953.

Sufficiency of evidence as to reckless driving of motor vehicle under statute making such a criminal offense, 52 A.L.R.2d 1337.

Sufficiency of evidence to establish criminal responsibility of one, other than driver at time of accident, under “hit-and-run” statute, 62 A.L.R.2d 1130, 1131.

Circumstantial evidence, may conviction of perjury rest upon, 88 A.L.R.2d 852.

Admissibility and weight of blood-grouping tests in disputed paternity cases, 43 A.L.R.4th 579.

29-21-06. Doubt as to degree of crime.

When it appears that a defendant has committed a public offense and there is reasonable ground to doubt in which of two or more degrees the defendant is guilty, the defendant can be convicted of the lowest of such degrees only.

Source:

C. Crim. P. 1877, § 350; R.C. 1895, § 8186; R.C. 1899, § 8186; R.C. 1905, § 9995; C.L. 1913, § 10832; R.C. 1943, § 29-2106.

Notes to Decisions

Degrees of Burglary.

Where defendant could only have been guilty of first degree burglary or innocent of the charge, it was not error to read all the definitions of burglary found in the Penal Code to the jury. State v. Campbell, 7 N.D. 58, 72 N.W. 935, 1897 N.D. LEXIS 45 (N.D. 1897).

First Degree Murder.

Where indictment charges murder in the first degree and there is reasonable doubt as to the degree of defendant’s guilt, he can be convicted of lowest degree only. State v. Whiteman, 79 N.W.2d 528, 1956 N.D. LEXIS 159, 1956 N.D. LEXIS 160 (N.D. 1956).

29-21-07. Persons jointly accused of crime jointly tried — Exceptions.

Whenever two or more persons are jointly charged with any crime, they must be tried jointly, subject to the power of the court, in its discretion and for special reasons, to order separate trials as to one or more of the defendants, and when tried jointly there may be joint or several convictions or acquittals, as the jury may determine the facts.

Source:

C. Crim. P. 1877, § 351; R.C. 1895, § 8187; R.C. 1899, § 8187; R.C. 1905, § 9996; C.L. 1913, § 10833; S.L. 1927, ch. 219, § 1; R.C. 1943, § 29-2107.

Notes to Decisions

Abuse of Discretion.

Granting of separate trial is largely within discretion of trial court and refusal to do so will not be set aside unless there has been a clear abuse of discretion. State v. Whiteman, 79 N.W.2d 528, 1956 N.D. LEXIS 159, 1956 N.D. LEXIS 160 (N.D. 1956).

Denial of Separate Trials.

Separate trials were properly denied where no evidence was introduced that would not have been admissible against each defendant if tried separately. State v. Sanders, 58 N.D. 773, 228 N.W. 190, 1929 N.D. LEXIS 280 (N.D. 1929).

When no reasons for separate trial are shown, it is not error to deny motion therefor. State v. Russell, 66 N.D. 272, 264 N.W. 532, 1935 N.D. LEXIS 193 (N.D. 1935).

Identical Evidence.

It was neither error nor an abuse of discretion to order consolidation for trial of prosecution of two defendants where they were being prosecuted on identical charges arising out of same events and where evidence as to each defendant was identical and they could have been charged in single information. State v. Weisser, 161 N.W.2d 360, 1968 N.D. LEXIS 84 (N.D. 1968).

Collateral References.

Right to severance where codefendant has incriminated himself, 54 A.L.R.2d 830.

29-21-08. Defendant discharged to testify.

When two or more persons are charged with an offense in the same information or indictment, the court, at any time before the defendants have gone into their defense, on the application of the state’s attorney, may direct any defendant to be discharged from the information or indictment, that that defendant may be a witness for the state.

Source:

C. Crim. P. 1877, § 352; R.C. 1895, § 8188; R.C. 1899, § 8188; R.C. 1905, § 9997; C.L. 1913, § 10834; R.C. 1943, § 29-2108.

29-21-09. Discharge to be witness for codefendant.

Whenever two or more persons are charged with an offense in the same information or indictment, and the court is of the opinion that in regard to a particular defendant there is not sufficient evidence to put that person on that person’s defense, it shall order that person to be discharged before the evidence is closed that that person may be a witness for that person’s codefendant.

Source:

C. Crim. P. 1877, § 353; R.C. 1895, § 8189; R.C. 1899, § 8189; R.C. 1905, § 9998; C.L. 1913, § 10835; R.C. 1943, § 29-2109.

29-21-10. Such discharge an acquittal — Bar to further prosecution.

The discharge of a defendant under either of sections 29-21-08 and 29-21-09 is an acquittal of the offense charged in the information or indictment, or any offense of which that person might have been found guilty thereunder, and is a bar to another prosecution therefor.

Source:

R.C. 1895, § 8190; R.C. 1899, § 8190; R.C. 1905, § 9999; C.L. 1913, § 10836; R.C. 1943, § 29-2110.

29-21-11. Defendant witness in own behalf.

In the trial of a criminal action or proceeding before any court or magistrate of this state, whether prosecuted by information, indictment, complaint, or otherwise, the defendant, at the defendant’s own request and not otherwise, must be deemed a competent witness, but the defendant’s neglect or refusal to testify does not create or raise any presumption of guilt against the defendant. Nor may such neglect or refusal be referred to by any attorney prosecuting the case, or considered by the court or jury before whom the trial takes place.

Source:

S.L. 1879, ch. 16, § 1; R.C. 1895, § 8191; R.C. 1899, § 8191; R.C. 1905, § 10000; C.L. 1913, § 10837; R.C. 1943, § 29-2111.

Cross-References.

Declaration of rights, see N.D. Const., Art. I.

No person compelled to be witness against himself, see § 31-01-09.

Notes to Decisions

Blood Tests.

Refusal of defendant to submit to blood test for alcohol content cannot be commented upon at the trial by the prosecution. State v. Severson, 75 N.W.2d 316, 1956 N.D. LEXIS 100 (N.D. 1956), decided prior to the enactment of N.D.C.C. § 39-20-08.

Comment by Court.

The court may call attention to the privilege of the defendant in refusing to testify, because the purpose of the statute is to prevent unfavorable comment upon the facts by the state’s attorney. State v. Wisnewski, 13 N.D. 649, 102 N.W. 883, 1905 N.D. LEXIS 10 (N.D. 1905); State v. Dodson, 23 N.D. 305, 136 N.W. 789, 1912 N.D. LEXIS 95 (N.D. 1912); State v. Gates, 52 N.D. 659, 204 N.W. 350, 1925 N.D. LEXIS 133 (N.D. 1925); State v. McCauley, 68 N.D. 198, 277 N.W. 605, 1938 N.D. LEXIS 97 (N.D. 1938); State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Comment by Prosecutor.

In prosecution for grand larceny of livestock, statement made by prosecutor in open court (while objecting to question inquiring whether codefendant had mentioned any animals to defense witness), that if codefendant had any statement he should get up on the stand himself, was not prejudicial error where other codefendant had already testified, state had no knowledge whether codefendant concerned would take stand, statement obviously was not made for purpose of drawing jury’s attention to fact that defendant had not taken stand, and trial court advised jury that statement was stricken and should not be considered in arriving at verdict. State v. Marmon, 154 N.W.2d 55, 1967 N.D. LEXIS 89 (N.D. 1967).

Prosecutor’s question to prospective jurors during voir dire proceeding, asking if anybody believed that the state must come forward with a confession from the defendant in every case, did not violate defendant’s constitutional right against self-incrimination or his rights under this section. State v. Nordquist, 309 N.W.2d 109, 1981 N.D. LEXIS 344 (N.D. 1981).

Prosecutor’s statement made during voir dire of the jury, when taken in the context in which it was made, that “someone will not get up and say I did it” did not constitute an improper comment on defendant’s fifth amendment rights and did not violate the rights afforded him by this section. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

Defendant’s rights under the Fifth Amendment, the Fourteenth Amendment, N.D.C.C. § 29-21-11, and N.D. Const. art. I, § 12 were not violated by a statement made by a prosecutor during closing arguments because the statement referred to defendant’s failure to deny that a motel room, in which marijuana, cash, drug paraphernalia, and luggage containing men’s and women’s clothing were found, was his when he made voluntary assertions to police prior to the reading of his rights and the statement referred to evidence, not to defendant’s silence. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

Failure to Testify.

Accused’s not testifying in his own behalf did not prejudice him in the eyes of the jury where prosecuting attorney did not comment on failure to testify and trial judge properly instructed jury concerning this section. State v. Ankney, 195 N.W.2d 547, 1972 N.D. LEXIS 118 (N.D. 1972).

Collateral References.

Requirement that court advise accused of, and make inquiry with respect to, waiver of right to testify, 72 A.L.R.5th 403.

29-21-12. Rules of evidence. [Repealed]

Superseded by N.D.R.Crim.P., Rule 26; N.D.R.Ev., Rule 101.

29-21-12.1. Statements, admissions, or confessions procured by duress, fraud, threat, or promises inadmissible in any criminal action. [Repealed]

Repealed by S.L. 1995, ch. 320, § 1.

29-21-13. Forgery — Proof on trial.

Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any such forged bill or note, it is not necessary to prove the incorporation of such bank or company by the charter or act of incorporation, but it may be proved by general reputation, and persons of skill are competent witnesses to prove that such bill or note is forged or counterfeited.

Source:

C. Crim. P. 1877, § 376; R.C. 1895, § 8216; R.C. 1899, § 8216; R.C. 1905, § 10025; C.L. 1913, § 10862; R.C. 1943, § 29-2113.

29-21-14. Testimony of accomplice — Corroboration required.

A conviction cannot be had upon the testimony of an accomplice unless the accomplice is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

Source:

C. Crim. P. 1877, § 356; R.C. 1895, § 8195; R.C. 1899, § 8195; R.C. 1905, § 10004; C.L. 1913, § 10841; R.C. 1943, § 29-2114.

Notes to Decisions

Acquittal of Defendant.

State could not appeal the district court's judgment of acquittal because it was a true acquittal where the district court's oral ruling was not a dismissal on procedural grounds unrelated to factual guilt or innocence, but rather was a determination that the State's evidence, which was based an accomplice's testimony, was insufficient to sustain a conviction. State v. Weight, 2015 ND 219, 868 N.W.2d 821, 2015 N.D. LEXIS 226 (N.D. 2015).

Sufficient corroboration.

In a case in which defendant was found guilty of conspiracy to deliver a controlled substance, the record contained corroborating evidence to satisfy this statute because law enforcement officers testified the surveillance video captured the overdose victim and another individual arriving at the apartment building where they and defendant’s sister, an accomplice, all stated the drug transaction took place; and the other individual testified about the overdose victim showing her the pills at defendant’s apartment inscribed with the letter “M” and number “30,” and those were the pills he overdosed on later that day.

Failure to instruct.

In a case in which defendant was found guilty of conspiracy to deliver a controlled substance, any error associated with the lack of a jury instruction on the need to corroborate accomplice testimony was harmless as there was sufficient evidence corroborating the accomplice testimony.

“Accomplice.”

The purchaser in a sale of marijuana cannot be charged with the same offense with which the seller is charged; therefore, the purchaser is not an accomplice and his testimony as witness in prosecution of seller did not require corroboration. State v. Dwyer, 172 N.W.2d 591, 1969 N.D. LEXIS 68 (N.D. 1969).

Where evidence that witness is an accomplice is undisputed and not susceptible to different inferences, the witness is an accomplice as a matter of law; but, where such evidence is either disputed or susceptible to different inferences, the question of whether the witness is an accomplice is a question of fact. State v. Thorson, 264 N.W.2d 441, 1978 N.D. LEXIS 238 (N.D. 1978).

Where defendant delivered marijuana and hashish to two individuals and was charged with delivering controlled substances, the two individuals were not accomplices since they could not be charged with delivery to themselves. State v. Ennis, 334 N.W.2d 827, 1983 N.D. LEXIS 423 (N.D.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 681, 1983 U.S. LEXIS 2474 (U.S. 1983).

Where witness and defendant were the only eyewitnesses to murder, and each claimed that the other, acting alone, killed the victim, it would have been very misleading to the jury for the court to have given the jury an instruction to the effect that testimony of an accomplice must be corroborated. State v. Kelley, 450 N.W.2d 729, 1990 N.D. LEXIS 20 (N.D. 1990).

Where there was no direct evidence about when acquaintance learned that defendant’s license was suspended, or that acquaintance knew that defendant’s license was suspended when defendant drove the pickup borrowed from acquaintance, and there was also no direct evidence that acquaintance provided defendant with the keys to the pickup under circumstances indicating a common plan or demonstrating control over defendant, the court could not say, as a matter of law, that acquaintance was an accomplice under N.D.C.C. § 12.1-03-01(1)(b); therefore, acquaintance’s testimony did not have to be corroborated under this section. State v. Deery, 489 N.W.2d 887, 1992 N.D. App. LEXIS 2 (N.D. Ct. App. 1992).

This section applies only in criminal cases, and “accomplice,” when used in a criminal context, is a term of art with a limited, specific meaning, the statutory definition of which is in N.D.C.C. § 12.1-03-01(1), which is used to gauge the need for corroboration of accomplice testimony. This section requires corroboration of testimony only where the witness could be criminally responsible as an accomplice under N.D.C.C. § 12.1-03-01(1). State v. Pacheco, 506 N.W.2d 408, 1993 N.D. LEXIS 179 (N.D. 1993).

Court erred in dismissing conspiracy to take pheasants in excess of legal limit charge against a defendant who led undercover game wardens on a hunt; because the wardens were without criminal intent, and thus were not accomplices, it was not necessary for the state to corroborate the testimony of the wardens. State v. Baumgartner, 2001 ND 202, 637 N.W.2d 14, 2001 N.D. LEXIS 233 (N.D. 2001).

Amount and Type of Corroboration.

The State need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

Any amount of corroboration is sufficient to give the case to the jury to determine the sufficiency of the corroboration. It is only when there is no corroborating evidence that the Supreme Court may reverse a judgment based upon the verdict of guilty. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

The corroboration of an accomplice’s testimony need not directly link the accused to the crime. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

The corroboration of accomplice testimony need not establish criminal conduct, but need only corroborate the accomplice as to some material fact and tend to connect the defendant with the crime. Furthermore, the corroborating evidence need not, in isolation, be incriminating, if the combined and cumulative evidence other than the accomplice’s testimony tends to connect the defendant with the commission of the offense. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

Connection with Offense.

The testimony of an accomplice does not warrant a conviction unless corroborated by other evidence tending to connect the defendant with the commission of the offense. State v. Todd, 62 N.D. 479, 244 N.W. 25, 1932 N.D. LEXIS 207 (N.D. 1932).

Corroboration of an accomplice’s testimony may be furnished by facts which tend to connect the defendant with the commission of the offense. State v. Foster, 69 N.D. 428, 287 N.W. 517, 1939 N.D. LEXIS 168 (N.D. 1939).

In prosecution for burglary, where the evidence tending to connect defendant with the crime, independent of the testimony of accomplices, consisted of testimony of policeman who knew defendant and testified that he saw a person he thought was defendant at the scene, and testimony of another policeman who apprehended defendant and accomplices near the scene of the crime, there was substantial corroborating evidence sufficient to satisfy the requirements of this section. State v. Anderson, 172 N.W.2d 597, 1969 N.D. LEXIS 67 (N.D. 1969).

Police officer’s testimony that marijuana was found on seat where defendant had been sitting and that defendant had in his possession a pipe and other paraphernalia which had been used in the smoking of marijuana sufficiently corroborated testimony of accomplices connecting defendant with commission of offense of possession of marijuana. State v. Binns, 194 N.W.2d 756, 1972 N.D. LEXIS 117 (N.D. 1972).

All that this section requires is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact that tends to connect the defendant with the commission of the crime. Not all elements of the offense need to be corroborated. State v. Neurohr, 376 N.W.2d 805, 1985 N.D. LEXIS 435 (N.D. 1985).

Where roommate’s testimony placed defendant with accomplice in nearby locations shortly before and after burglaries occurred, that testimony was critical because it tended to connect the defendant with the commission of the offense and constituted corroboration of accomplice’s testimony sufficient for submission to the jury. State v. Zimmerman, 524 N.W.2d 111, 1994 N.D. LEXIS 235 (N.D. 1994).

Facts and Circumstances.

The corroboration may be by facts and circumstances as well as by direct evidence. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508, 1950 N.D. LEXIS 173 (N.D. 1950).

Circumstantial as well as direct evidence can be corroborative. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Failure to Instruct.

Failure to instruct jury that a verdict of guilty could not be returned on the uncorroborated evidence of accomplices was not error in the absence of a request to so instruct. State v. Berenson, 65 N.D. 480, 260 N.W. 256, 1935 N.D. LEXIS 134 (N.D. 1935).

Incestuous Intercourse.

A female who participates in incestuous intercourse is an accomplice, and her testimony must be corroborated. State v. Kellar, 8 N.D. 563, 80 N.W. 476, 1899 N.D. LEXIS 47 (N.D. 1899).

Independent Source.

The corroboration of an accomplice must come from a source independent of the accomplice, but the corroborating evidence itself need not be sufficient to support a conviction. State v. Kent, 4 N.D. 577, 62 N.W. 631, 1895 N.D. LEXIS 51 (N.D. 1895); State v. Coudotte, 7 N.D. 109, 72 N.W. 913, 1807 N.D. LEXIS 2, 1897 N.D. LEXIS 67 (N.D. 1897).

The prosecution need not point to a single, isolated item which in itself is corroborative. Rather, the combined and cumulative evidence other than the testimony of an accomplice may tend to connect the defendant to the crime. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Insufficient Corroboration.

Corroboration is not sufficient if it merely shows commission of offense or circumstances thereof; witness who was present when burglary was planned, who agreed to it, who went with others to store to be burglarized, who waited in car but took no part in actual break-in and slept while actual burglary was committed, who then helped concoct story to tell investigating officers in event any of parties should be questioned and who helped divide loot, was accomplice even though he may have had unexpressed objections to burglary; conviction could not stand where only witness for state other than members of party was store owner who could testify only that store had been burglarized and that some merchandise had been taken. State v. Helmenstein, 163 N.W.2d 85, 1968 N.D. LEXIS 96 (N.D. 1968).

Testimony of proprietor of lounge that her business was burglarized and that coins and cigarettes were taken did not constitute corroboration of accomplice testimony since it showed only the commission of the offense and the circumstances thereof but did not connect defendant with the crime. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

Speculation as to defendant’s presence from the fact that an unidentified vehicle like the one he was known to drive was sighted in the area was not evidence tending to connect defendant with the commission of the crime for purposes of corroboration. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

Insufficient Testimony.

Where trial judge and state’s attorney had grave doubts as to sufficiency of testimony corroborating the testimony of an accomplice, new trial was granted. State v. Fichtner, 58 N.D. 400, 226 N.W. 534, 1929 N.D. LEXIS 224 (N.D. 1929).

Jury Question.

If the accomplice is, by such testimony, corroborated as to some material fact or facts tending to connect the defendant with the commission of the offense, the jury may from that infer that he speaks the truth as to all. State v. Dodson, 23 N.D. 305, 136 N.W. 789, 1912 N.D. LEXIS 95 (N.D. 1912); State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

In a prosecution for larceny, the testimony of recent possession of stolen property by the accused and attempting to discourage the arrest of an accomplice, and the assertion to the wife of the accomplice that he has matters fixed up, are sufficient corroboration to require submission of the case to the jury. State v. McCarty, 47 N.D. 523, 182 N.W. 754, 1921 N.D. LEXIS 123 (N.D. 1921).

The weight of the corroborating testimony and the question as to whether or not the testimony of the accomplice is so corroborated as to establish connection of accused with crime charged are jury questions. State v. Pusch, 77 N.D. 860, 46 N.W.2d 508, 1950 N.D. LEXIS 173 (N.D. 1950).

The question whether a child is an accomplice of defendant charged with sodomy, thus requiring corroborative evidence, is a question of fact to be determined by the jury. State v. Powell, 73 N.W.2d 777, 1955 N.D. LEXIS 157 (N.D. 1955).

Whether corroborative evidence exists is a question of law to be decided by the court; after the court has determined that corroborative evidence exists, the sufficiency of such evidence is to be determined by the jury. State v. Thorson, 264 N.W.2d 441, 1978 N.D. LEXIS 238 (N.D. 1978).

The weight of the corroborating evidence is for the jury. It is only when there is no such evidence that a guilty verdict should be reversed. State v. Neurohr, 376 N.W.2d 805, 1985 N.D. LEXIS 435 (N.D. 1985).

In cases involving the use of corroborative evidence, it is incumbent upon the trial court to first determine, as a matter of law, whether or not there is any evidence corroborating the testimony of the accomplice, and only after the court has found such corroborative evidence is it allowed to leave the question of the sufficiency of the corroborative evidence to the jury. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

If the facts as to a witness’ culpability are disputed or susceptible of different inferences, then the determination of whether the witness is an accomplice is a question of fact for the jury. If, on the other hand, the facts as to the witness’ culpability are neither disputed nor susceptible of different inferences, then it is a question of law for the court. State v. Kelley, 450 N.W.2d 729, 1990 N.D. LEXIS 20 (N.D. 1990).

When an accomplice testifies, the trial court must first determine, as a matter of law, whether other evidence corroborates that testimony. When the trial court has determined that other evidence corroborates the accomplice’s testimony, the sufficiency of all of the evidence is for the jury to decide. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

While the existence of corroborating evidence is for the trial court, the credibility and weight of that evidence is for the jury. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

It is for the trial court in the first instance to determine whether there is any corroborative evidence, but the weight to be accorded that evidence is for the jury. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

If some evidence tends to connect the defendant to the crime, it is for the jury to weigh that corroborating evidence with the accomplice’s testimony and all other evidence in the case to determine the guilt or innocence of the defendant. State v. Austin, 520 N.W.2d 564, 1994 N.D. LEXIS 188 (N.D. 1994).

Material Facts.

It is not necessary that corroborating testimony should cover every point testified to by the accomplice. State v. Reilly, 22 N.D. 353, 133 N.W. 914, 1911 N.D. LEXIS 52 (N.D. 1911); State v. Marcovitz, 63 N.D. 458, 248 N.W. 481, 1933 N.D. LEXIS 199 (N.D. 1933).

The corroboration required need not extend to every material point, nor be sufficient in itself to support a verdict of guilty. State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

Corroborating testimony of an accomplice, to be sufficient as such, need not directly confirm any particular fact testified to by the accomplice. State v. Todd, 62 N.D. 479, 244 N.W. 25, 1932 N.D. LEXIS 207 (N.D. 1932).

Every material fact testified to by accomplice need not be corroborated; corroboration may be furnished by facts which tend to connect defendant with commission of offense. State v. Marmon, 154 N.W.2d 55, 1967 N.D. LEXIS 89 (N.D. 1967).

Under this section it is not necessary to corroborate every fact testified to by an accomplice. All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts and tends to connect the defendant with the commission of the crime. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

It is not necessary that corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of the accomplice as to some material fact or facts, and tend to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. State v. Haugen, 449 N.W.2d 784, 1989 N.D. LEXIS 253 (N.D. 1989).

Every fact given by an accomplice need not be corroborated. All that is needed is other evidence corroborating one or more material details or facts which tend to connect the defendant with the crime. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

To be submitted to the jury, the corroborating evidence standing alone does not need to prove guilt. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Presence at Scene of Crime.

While evidence of presence alone may not always be enough to convict, presence at or near the scene of a crime, together with other circumstances, is sufficient to corroborate an accomplice’s testimony and to convict. State v. Esparza, 1998 ND 13, 575 N.W.2d 203, 1998 N.D. LEXIS 2 (N.D. 1998).

There was corroborating evidence to support the testimony of an accomplice in a drug case where police found clothes apparently belonging to defendant at a residence where an alleged assault occurred and drugs; moreover, the damage to the residence and the blood evidence found further supported the victim’s story that a violent incident involving defendant had occurred. The evidence placing defendant at the scene was sufficient to connect him with the drugs found under the doctrine of constructive possession; therefore, he was properly convicted of possession of methamphetamine with intent to manufacture, possession of drug paraphernalia for use with methamphetamine, and possession of methamphetamine. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

Purpose of Corroboration.

The purpose of corroborative evidence is to demonstrate that an accomplice is a reliable witness and worthy of credit. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

The purpose of corroborating evidence is to show that accomplices are reliable witnesses and worthy of credit, however, under this section it is not necessary to corroborate every fact testified to by an accomplice; all that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts, and tends to connect the defendant with the commission of the crime; and, it is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. Furthermore, the state need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

Sufficient Corroboration.

Defendant’s possession of stolen vehicle in Kansas with plates stolen in South Dakota tended to connect him to its recent theft in North Dakota, and thus sufficiently corroborated testimony of two accomplices for theft conviction. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Corroboration of accomplice testimony was sufficient where officer’s testimony established that accomplice’s vehicle traveled to defendant’s mobile home and then returned to accomplice’s business, where the accomplice delivered marijuana to the undercover officer. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

When viewed cumulatively, the evidence strongly corroborated witnesses’ testimony about defendant’s involvement in the murders of an elderly couple; there was sufficient corroborating evidence for witnesses’ testimony. State v. Austin, 520 N.W.2d 564, 1994 N.D. LEXIS 188 (N.D. 1994).

There was more than mere presence or an isolated circumstance where the act of the accomplice’s attempted phone call to defendant’s residence added corroboration in prosecution for delivery of marijuana; the aggregation of circumstances, reinforced with testimony by the narcotics officers, clearly corroborated accomplice’s testimony and linked defendant to the drug delivery. State v. Torres, 529 N.W.2d 853, 1995 N.D. LEXIS 49 (N.D. 1995).

Evidence was sufficient to corroborate accomplice’s testimony where police officer testified he saw defendant sitting in a parked car at the restaurant the accomplice burglarized, police officers testified that they found pry bars in defendant’s car and paint on one pry bar matched the broken window on the restaurant, and the owner of the restaurant testified that a money clip found in defendant’s car was identical to a clip he kept in the cash register. State v. Marshall, 531 N.W.2d 284, 1995 N.D. LEXIS 81 (N.D. 1995).

Accomplice’s testimony that defendant was responsible for murder was corroborated by descriptions of defendant given by other witnesses, atomic absorption test results indicating defendant had handled a recently discharged firearm, shoeprints found at crime scene, and defendant’s attempted flight from police and possession of shotgun shell. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

There was sufficient evidence corroborating the testimony of accomplices to link both defendants to a burglary where defendant A was caught fleeing a car just blocks from the crime scene and the car contained items stolen from that scene; and there was evidence that defendant B was with accomplices until shortly before the burglary occurred and afterwards, he was identified by an accomplice as he passed by in a car close to the crime scene and then fled that car when pursued by police, and the car from which he fled contained stolen items from the crime scene. State v. Fraser, 2000 ND 53, 608 N.W.2d 244, 2000 N.D. LEXIS 51 (N.D. 2000).

Sufficient evidence supported defendant’s murder conviction because, although there was no independent and direct evidence about the actual trigger person for the victim’s death, the combined and cumulative effect of the other independent evidence tended to connect defendant to the murder and corroborated the testimony of defendant’s wife. State v. Gaede, 2007 ND 125, 736 N.W.2d 418, 2007 N.D. LEXIS 124 (N.D. 2007).

Because appellant and another juvenile were accomplices, the juvenile court’s finding that appellant committed a theft had to be based upon more than the other juvenile’s testimony; however, the record was replete with evidence corroborating the other juvenile’s testimony and connecting appellant to the commission of the theft. Molbert v. J.K. (In the Interest of J.K.), 2009 ND 46, 763 N.W.2d 507, 2009 N.D. LEXIS 52 (N.D. 2009).

Evidence was sufficient to sustain defendant's conviction of conspiracy to deliver a controlled substance where even if the trial court erred by not giving a corroboration jury instruction, evidence from the accomplices' cell phones corroborated their testimony that defendant was the person who sold them the marijuana on the day of the transaction, and thus, any error was harmless. State v. Reddig, 2016 ND 39, 876 N.W.2d 34, 2016 N.D. LEXIS 28 (N.D. 2016).

“Tends” or “Tending.”

The corroboration of an accomplice’s testimony need not directly link the accused to the crime. Rather, corroboration merely requires that there be evidence tending to connect the defendant with the offense committed. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

As used in the statute requiring corroboration, “tends” indicates tendency, not certainty. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

Collateral References.

Necessity for instructions to jury on question as to who are accomplices, within rule requiring corroboration of their testimony, 19 A.L.R.2d 1352.

Thief as accomplice of one charged with receiving stolen property, or vice versa, 53 A.L.R.2d 817.

Woman upon whom abortion is committed or attempted as an accomplice, 34 A.L.R.3d 858.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial — modern criminal cases, 76 A.L.R.4th 812.

29-21-15. Mistake in offense charged — Other proceedings.

When it appears, at any time before verdict or judgment, that a mistake has been made in charging the proper offense, the defendant must not be discharged, if there appears good cause to detain the defendant in custody, but the court shall commit the defendant, or require the defendant to give bail for the defendant’s appearance to answer to the offense, and also may require the witnesses to give bail for their appearance. The provisions of rule 12 of the North Dakota Rules of Criminal Procedure as to the manner and time of prosecution, so far as applicable, govern the further proceedings under this section.

Source:

C. Crim. P. 1877, § 359; R.C. 1895, § 8198; R.C. 1899, § 8198; R.C. 1905, § 10007; C.L. 1913, § 10844; R.C. 1943, § 29-2115; S.L. 1979, ch. 187, § 62.

29-21-16. Mistake in charge not former acquittal nor putting once in jeopardy.

Upon the trial of an information filed or indictment found, under the provisions of section 29-21-15, neither a plea of former acquittal nor of once in jeopardy may be sustained by reason of the discharge of the jury on the first information or indictment.

Source:

C.Crim.P. 1877, § 360; R.C. 1895, § 8199; R.C. 1899, § 8199; R.C. 1905, § 10008; C.L. 1913, § 10845; R.C. 1943, § 29-2116.

29-21-17. Trial on original charge after mistake.

If, after a mistake in charging an offense as is provided in section 29-21-15, a new information is not filed nor a new indictment found as is provided in rule 12 of the North Dakota Rules of Criminal Procedure, the court shall proceed again to try the defendant on the original charge.

Source:

C. Crim. P. 1877, § 361; R.C. 1895, § 8200; R.C. 1899, § 8200; R.C. 1905, § 10009; C.L. 1913, § 10846; R.C. 1943, § 29-2117; S.L. 1979, ch. 187, § 63.

29-21-18. Juror knowing fact — Witness. [Repealed]

Superseded by N.D.R.Ev., Rule 606.

29-21-19. Want of jurisdiction appearing — Jury discharged.

The court may direct the jury to be discharged, when it appears that it has not jurisdiction of the offense, or that the facts charged in the information or indictment do not constitute an offense punishable by law.

Source:

C. Crim. P. 1877, § 362; R.C. 1895, § 8201; R.C. 1899, § 8201; R.C. 1905, § 10010; C.L. 1913, § 10847; R.C. 1943, § 29-2119.

29-21-20. Disposition of accused on discharge of jury.

If the jury is discharged because the court has not jurisdiction of the offense charged, and it appears that it was committed out of the jurisdiction of this state, the defendant must be discharged, unless the court orders that the defendant be detained for a reasonable time, to be specified in the order, to enable the state’s attorney to communicate with the chief executive officer of the country, state, territory, or district where the offense charged was committed.

Source:

C. Crim. P. 1877, § 363; R.C. 1895, § 8202; R.C. 1899, § 8202; R.C. 1905, § 10011; C.L. 1913, § 10848; R.C. 1943, § 29-2120.

29-21-21. Admission to bail.

If an offense which the court is without jurisdiction to try was committed within the jurisdiction of another county of this state, the court may direct the defendant to be committed for such time as it deems reasonable to await a warrant from the proper county for the defendant’s arrest, or if the offense is a misdemeanor or an infraction, it may admit the defendant to bail in an undertaking, with sufficient sureties, that the defendant, within such time as the court may appoint, will submit to a warrant for the defendant’s arrest from the proper county, and if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a time particularly specified in the undertaking, to submit to the warrant if issued, or that the defendant’s bail will forfeit such sum as the court may fix, and to be mentioned in the undertaking.

Source:

C. Crim. P. 1877, § 364; R.C. 1895, § 8203; R.C. 1899, § 8203; R.C. 1905, § 10012; C.L. 1913, § 10849; R.C. 1943, § 29-2121; S.L. 1975, ch. 106, § 332.

Cross-References.

Release from custody, see N.D.R.Crim.P., Rule 46.

29-21-22. Certified copies of papers sent to proper county by clerk.

In the cases provided for in section 29-21-21, the clerk forthwith shall transmit a certified copy of the information or indictment and of all the papers filed in the action to the proper county, the expense of which transmission is chargeable to that county.

Source:

C. Crim. P. 1877, § 364; R.C. 1895, § 8204; R.C. 1899, § 8204; R.C. 1905, § 10013; C.L. 1913, § 10850; R.C. 1943, § 29-2122.

29-21-23. When accused discharged.

If a defendant is not arrested on a warrant from the proper county:

  1. The defendant must be discharged from custody;
  2. The defendant’s bail in the action must be exonerated; or
  3. Money deposited instead of bail must be refunded,

as the case may be, and the sureties in the undertaking, as mentioned in section 29-21-21, must be discharged.

Source:

C. Crim. P. 1877, § 365; R.C. 1895, § 8205; R.C. 1899, § 8205; R.C. 1905, § 10014; C.L. 1913, § 10851; R.C. 1943, § 29-2123.

Cross-References.

Release from custody, see N.D.R.Crim.P., Rule 46.

29-21-24. Proceedings if accused arrested.

If a defendant, on a warrant from a proper county, is arrested, the same proceedings must be had thereon as upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate.

Source:

C. Crim. P. 1877, § 366; R.C. 1895, § 8206; R.C. 1899, § 8206; R.C. 1905, § 10015; C.L. 1913, § 10852; R.C. 1943, § 29-2124.

29-21-25. Court must discharge accused — Exception.

If a jury is discharged because the facts as charged do not constitute an offense punishable by law, the court shall order that the defendant, if in custody, be discharged therefrom, or, if admitted to bail, that the defendant’s bail be exonerated, or if the defendant has deposited money instead of bail, that the money deposited be refunded to the defendant, unless in its opinion a new information or indictment can be framed upon which the defendant can be legally convicted, in which case it may direct the state’s attorney to file a new information, or, if an information cannot be legally filed sooner, it may direct that the case be submitted to the same or another grand jury, and the provisions of rule 12 of the North Dakota Rules of Criminal Procedure, so far as applicable, as to the time and manner of the prosecution, govern the further proceedings under this section.

Source:

C. Crim. P. 1877, § 367; R.C. 1895, § 8207; R.C. 1899, § 8207; R.C. 1905, § 10016; C.L. 1913, § 10853; R.C. 1943, § 29-2125; S.L. 1979, ch. 187, § 64.

29-21-26. Jury may view place.

When, in the opinion of the court, it is proper that the jurors should view the place in which the offense was charged to have been committed, or in which any other material fact occurred, it may order the jurors to be conducted in a body, in the custody of proper officers, to such place, which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no person to speak to nor communicate with the jurors, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time. The trial judge must be present and the state’s attorney and counsel for the defendant may be present at the view by the jurors.

Source:

C. Crim. P. 1877, § 369; R.C. 1895, § 8209; R.C. 1899, § 8209; R.C. 1905, § 10018; C.L. 1913, § 10855; R.C. 1943, § 29-2126.

Notes to Decisions

Discretion of Court.

The decision of whether or not to grant or deny a request for a jury view rests in the sound discretion of the trial judge. State v. Schlickenmayer, 334 N.W.2d 196, 1983 N.D. LEXIS 295 (N.D. 1983).

During defendant’s trial for murder, the court did not abuse its discretion in denying his motion to allow the jury to view the crime scene outside his house; the court admitted exhibits into evidence, including photographs of the area, photographs taken at the crime scene by the police, and photographs of his house. State v. Romero, 2013 ND 77, 830 N.W.2d 586, 2013 N.D. LEXIS 78 (N.D. 2013).

Presence of Trial Judge at Viewing.

By the clear language of this section, it is the mandatory duty of the trial judge to attend a viewing by the jury, and his absence at such viewing was prejudicial and constituted reversible error. State v. Rohrich, 135 N.W.2d 175, 1965 N.D. LEXIS 150 (N.D. 1965).

Collateral References.

Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial, or mistrial, 50 A.L.R.4th 995.

29-21-27. Custody and conduct of jury.

The jurors sworn to try a criminal action, at any time before the cause is submitted to the jurors, in the discretion of the court, may be permitted to separate, or may be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to nor communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.

Source:

C.Crim.P. 1877, § 371; R.C. 1895, § 8211; R.C. 1899, § 8211; R.C. 1905, § 10020; C.L. 1913, § 10857; R.C. 1943, § 29-2127.

Notes to Decisions

Competency of Officers.

A sheriff and his deputy are not incompetent to act as bailiffs in charge of the jury because they testify against the defendant on trial. State v. Rosencrans, 9 N.D. 163, 82 N.W. 422, 1900 N.D. LEXIS 206 (N.D. 1900).

Discretion of Court.

It is within the discretion of the trial court to determine whether the jurors may separate while the cause is being tried. State v. Glass, 29 N.D. 620, 151 N.W. 229, 1915 N.D. LEXIS 39 (N.D. 1915).

Juror Misconduct.

Defendant’s right to a fair and impartial jury under the Sixth Amendment and N.D. Const. art. I, § 13 was not violated by a juror’s use of a cell phone where there was no evidence that the other jurors heard any information outside of that presented in the courtroom. The trial court had informed the jury not to communicate among themselves or others on the subject of the trial, pursuant to N.D.C.C. §§ 29-21-27, 29-21-28. State v. Newman, 2007 ND 148, 738 N.W.2d 887, 2007 N.D. LEXIS 150 (N.D. 2007).

No Prejudice Shown.

Fact that member of jury was allowed to go to post office to get his mail did not entitle defendant to new trial where it was not shown that prejudice resulted thereby. State v. Zimmerman, 60 N.D. 256, 233 N.W. 845, 1930 N.D. LEXIS 231 (N.D. 1930).

Presumption of Prejudice.

Where jurors separate without consent of the court and under circumstances which would permit improper influences upon them, prejudice to the defendant will be presumed. State v. Pancoast, 5 N.D. 516, 67 N.W. 1052 (N.D. 1896).

Separation After Submission.

It is error to permit the jury to separate after the case has been submitted to them and they have been deliberating for some time. State v. Lamoreaux, 62 N.D. 55, 241 N.W. 595, 1932 N.D. LEXIS 152 (N.D. 1932).

Collateral References.

Separation of jurors permitted to attend theater or the like during course of criminal trial as ground for mistrial, new trial, or reversal, 33 A.L.R.2d 847.

Separation of jury in criminal case after submission of cause—modern cases, 72 A.L.R.3d 248.

Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 A.L.R.4th 410.

Unauthorized view of premises by juror or jury in criminal case as ground for new trial, State v. Grant, 361 N.W.2d 243, 1985 N.D. LEXIS 245 (N.D. 1985).

Prejudicial Effect of Juror Misconduct Arising from Internet Usage. 48 A.L.R.6th 135.

29-21-28. Court must admonish jury.

The jurors also, at each adjournment of the court, whether permitted to separate or required to be kept in charge of officers, must be admonished by the court that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any opinion thereon, until the case is finally submitted to them.

Source:

C.Crim.P. 1877, § 372; R.C. 1895, § 8212; R.C. 1899, § 8212; R.C. 1905, § 10021; C.L. 1913, § 10858; R.C. 1943, § 29-2128.

Notes to Decisions

Sufficiency of Admonition.

Because defendant failed to object to the short form admonishment, the district court’s error of failing to properly admonish the jury was not prejudicial and did not affect a substantial right; while the district court did not properly admonish the jury during breaks and adjournment, it did inform the jury of the substance of the statute when it read the preliminary jury instructions to the jury. State v. Pemberton, 2019 ND 157, 930 N.W.2d 125, 2019 N.D. LEXIS 165 (N.D. 2019).

“Adjournment” Defined.

The temporary cessation of proceedings before a jury for the purpose of hearing a motion is not an “adjournment” within the law requiring admonition. State v. West, 57 N.D. 652, 223 N.W. 705, 1929 N.D. LEXIS 312 (N.D. 1929).

Harmless Error.

District court’s failure to admonish the jury under N.D.C.C. § 29-21-28 prior to a 10 minute break was harmless error because defendant did not object, and he did not claim or demonstrate any prejudice. State v. Myers, 2006 ND 242, 724 N.W.2d 168, 2006 N.D. LEXIS 248 (N.D. 2006).

Although a trial court erred by failing to admonish the jury not to talk about the case or form opinions thereon before hearing all of the evidence prior to a lunch break, as it should have pursuant to N.D.C.C. § 29-21-28 and N.D.R.Ct. 6.11(b), defendant neither claimed nor demonstrated that he was prejudiced by such error. The trial court’s presumed error did not affect defendant’s substantial rights and thus, under N.D.R.Crim.P. 52(a), the error was harmless. State v. Ripley, 2009 ND 105, 766 N.W.2d 465, 2009 N.D. LEXIS 110 (N.D. 2009).

Sufficiency of Admonition.

Where trial judge admonished entire jury panel at beginning of term not to discuss the case with each other or others prior to its submission to them, and followed that full admonition at appropriate times during trial with a statement to the jurors, “members of the jury, bear in mind the court’s usual admonition”, no prejudice resulted to defendant by trial court judge’s use of a short form of admonition. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

Admonition to the jury just after it was sworn, before the court held a discussion with the attorneys in chambers, that it hear nothing about the case, that the facts of the case would be presented in the courtroom, and it should not and could not form or express an opinion on the case until it was finally submitted at the conclusion of all the testimony, was not reversible error. State v. His Chase, 531 N.W.2d 271, 1995 N.D. LEXIS 84 (N.D. 1995).

Warning Given.

Defendant’s right to a fair and impartial jury under the Sixth Amendment and N.D. Const. art. I, § 13 was not violated by a juror’s use of a cell phone where there was no evidence that the other jurors heard any information outside of that presented in the courtroom. The trial court had informed the jury not to communicate among themselves or others on the subject of the trial, pursuant to N.D.C.C. §§ 29-21-27, 29-21-28. State v. Newman, 2007 ND 148, 738 N.W.2d 887, 2007 N.D. LEXIS 150 (N.D. 2007).

Collateral References.

Propriety and effect of jury in civil case taking depositions to jury room during deliberations, 57 A.L.R.2d 1011.

Effect of evidence as to juror’s statements, during deliberation in criminal case as to facts not introduced in evidence, 58 A.L.R.2d 556.

29-21-29. Counsel’s argument restricted.

The court, in its discretion, may restrict the argument to the jury in a criminal case to one counsel for the prosecution and one for each defendant.

Source:

C. Crim. P. 1877, § 348; R.C. 1895, § 8184; R.C. 1899, § 8184; R.C. 1905, § 9993; C.L. 1913, § 10830; R.C. 1943, § 29-2129; S.L. 1975, ch. 106, § 333.

Law Reviews.

Article: The Law As Justification: A Critical Rationalist Analysis, see 86 N.D. L. Rev. 149 (2010).

29-21-30. Instructing the jury — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 30.

29-21-31. Instructions to be read. [Repealed]

Superseded by N.D.R.Crim.P., Rule 30.

29-21-32. Fees for court reporter’s instructions.

The reporter of the court shall receive for writing out the oral instructions of the court the same fees as for making transcripts.

Source:

S.L. 1893, ch. 84, § 1; R.C. 1895, § 8178; R.C. 1899, § 8178; R.C. 1905, § 9987; C.L. 1913, § 10824; R.C. 1943, § 29-2132.

29-21-33. Charge — Exceptions before given. [Repealed]

Superseded by N.D.R.Crim.P., Rules 30, 51.

29-21-34. Defendant may be committed. [Repealed]

Superseded by N.D.R.Crim.P., Rule 46.

29-21-35. Death or illness of juror — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 24.

29-21-36. Substitute for state’s attorney.

If the state’s attorney fails or is unable to attend at the trial, the court may appoint some attorney at law to perform the duties of the state’s attorney on such trial.

Source:

C. Crim. P. 1877, § 380; R.C. 1895, § 8221; R.C. 1899, § 8221; R.C. 1905, § 10030; C.L. 1913, § 10867; R.C. 1943, § 29-2136.

Notes to Decisions

Temporary Vacancy.

Where case is brought by state and pending in a district court and there is no state’s attorney or he is absent, disqualified, or refuses or neglects to perform his duties so that there is in a real sense a vacancy, the court may constitutionally fill such temporary vacancy by appointment of attorney to represent the state. State ex rel. Ilvedson v. District Court, 70 N.D. 17, 291 N.W. 620, 1940 N.D. LEXIS 143 (N.D. 1940).

29-21-37. Court may advise jury to acquit. [Repealed]

Superseded by N.D.R.Crim.P., Rule 29.

29-21-38. Pleadings not evidence in criminal action.

No pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading.

Source:

C.Civ.P. 1877, § 126; S.L. 1885, ch. 149, § 1; R.C. 1895, § 5281; R.C. 1899, § 5281; R.C. 1905, § 6867; C.L. 1913, § 7456; R.C. 1943, § 28-0721.

Derivation:

Wait’s (N.Y.) Code, 157; Harston’s (Cal.) Practice, 446.

Cross-References.

Evidence, see N.D.R.Crim.P., Rule 26.

CHAPTER 29-22 Jury after Submission of Cause and Verdict

29-22-01. Retirement of jurors.

After hearing the charge, the jurors shall retire for deliberation to a room which must be provided for them by the board of county commissioners. Such room must be supplied with heat, light, and other conveniences. If a room is not provided by such board, the court may order the sheriff to provide one and the expenses incurred in complying with such order, when certified by the court, are a charge against the county.

Source:

C. Crim. P. 1877, §§ 378, 381; R.C. 1895, §§ 8218, 8222; R.C. 1899, §§ 8218, 8222; R.C. 1905, §§ 10027, 10031; C.L. 1913, §§ 10864, 10868; R.C. 1943, § 29-2201; S.L. 1981, ch. 320, § 74.

29-22-02. Custody of jurors.

The jurors shall retire in charge of one or more officers who must be sworn to keep them together in some private and convenient place until they have rendered their verdict. Such officer or officers shall furnish food and other necessaries to the jurors, at the expense of the state, as directed by the court, and may not speak to nor communicate with such jurors or any of them nor permit any other person so to do except by order of the court. Men and women jurors may retire, when rest or sleep or propriety requires it, to separate rooms.

Source:

C. Crim. P. 1877, §§ 378, 382; R.C. 1895, §§ 8218, 8223; R.C. 1899, §§ 8218, 8223; R.C. 1905, §§ 10027, 10032; C.L. 1913, §§ 10864, 10869; R.C. 1943, § 29-2202; S.L. 1981, ch. 320, § 75; 1991, ch. 326, § 114.

Notes to Decisions

Compromise Verdict.

Testimony of jurors cannot be used to show deliberations of jury unless to show that a compromise verdict was reached. James Turner & Sons v. Great N. Ry., 67 N.D. 347, 272 N.W. 489, 1937 N.D. LEXIS 89 (N.D. 1937).

Impermissible Communications.

A telephone call received by a juror during deliberations was an impermissible communication under this section, but it did not rise to the level of a denial of a fair trial, and defendant had not shown prejudice or demonstrated he suffered a serious injustice when the juror took the call to discuss a family emergency. State v. Weisz, 2002 ND 207, 654 N.W.2d 416, 2002 N.D. LEXIS 269 (N.D. 2002).

Separation of Jurors.

Where jury separated after case was finally submitted, but had no communications with one another or anyone else concerning the case, verdict would not be set aside. Territory v. King, 50 N.W. 623, 6 Dakota 131, 1889 Dakota LEXIS 48 (Dakota 1889).

It was not reversible error to allow one of jurors to visit post office to get his mail where no prejudice resulted to the defendant thereby. State v. Zimmerman, 60 N.D. 256, 233 N.W. 845, 1930 N.D. LEXIS 231 (N.D. 1930).

Where jurors went to a restaurant for lunch in three cars with both a bailiff and deputy sheriff present in two cars and only a deputy sheriff present in the third, and it appeared that no improper influences were used or attempted, no prejudice resulted from the mode in which the jurors were taken to lunch and returned to the courthouse and such separation furnished no ground for a new trial. State v. Julson, 202 N.W.2d 145, 1972 N.D. LEXIS 99 (N.D. 1972).

Trial court’s denial of defendant’s motion to sequester the jury during deliberations and the court’s permitting the jurors to go home at nights and return during the days to resume deliberations did not constitute reversible error where the court admonished the jurors to avoid publicity and not to discuss the case and the defendant failed to show any actual prejudice resulting from the court’s actions. State v. Bergeron, 340 N.W.2d 51, 1983 N.D. LEXIS 409 (N.D. 1983).

Collateral References.

Separation of jurors permitted to attend theater or the like during course of criminal trial as ground for mistrial, new trial, or reversal, 33 A.L.R.2d 847.

Propriety and prejudicial effect, in criminal case, of placing jury in charge of officer who is a witness in the case, 38 A.L.R.3d 1012.

Communication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal—post-Parker cases, 35 A.L.R.4th 890.

Post-retirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 A.L.R.4th 410.

29-22-03. Selection of a foreman.

The court shall appoint one of the jurors foreman or instruct the jurors to select one of their number as foreman.

Source:

R.C. 1943, § 29-2203.

29-22-04. What papers jurors may take.

Upon retiring for deliberation, the jurors may take with them:

  1. All papers or things other than depositions which have been received as evidence in the cause, but if, in the opinion of the court, a public record or private document received in evidence should not be taken from the person having possession, a copy must be taken instead of the original;
  2. All or such parts of the written instructions as the court may direct;
  3. Notes of the testimony, or other proceedings on the trial, taken by jurors themselves or any of them, but none taken by any other person; and
  4. Forms of verdict approved by the court.

Source:

C.Crim.P. 1877, § 383; R.C. 1895, § 8224; R.C. 1899, § 8224; R.C. 1905, § 10033; C.L. 1913, § 10870; R.C. 1943, § 29-2204.

Notes to Decisions

Completed Transcript.

This section prohibits the use of a completed transcript by the jurors. State v. McLain, 301 N.W.2d 616, 1981 N.D. LEXIS 227 (N.D. 1981).

Perjury Prosecution.

In a prosecution for perjury it was error for court to permit jury to take with them a transcript of committing magistrate’s docket showing proceedings on the examination and his finding that sufficient evidence of defendant’s guilt existed. Territory v. Jones, 50 N.W. 528, 6 Dakota 85, 1888 Dakota LEXIS 66 (Dakota 1888).

Videotapes and Equipment.

The district court’s exclusion of videotape viewing equipment from jury room in case where videotape was received into evidence was not an abuse of discretion. State v. Boehler, 542 N.W.2d 745, 1996 N.D. LEXIS 27 (N.D. 1996).

Collateral References.

Propriety of permitting jury to take X-ray picture introduced in evidence with them into jury room, 10 A.L.R.2d 918.

Right to have reporter’s notes read to jury, 50 A.L.R.2d 176.

Taking of notes by jury, 36 A.L.R.5th 255.

29-22-05. Disagreement — Further instructions.

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the cause, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state’s attorney and the defendant or the defendant’s counsel, or after they have been called.

Source:

C.Crim.P. 1877, § 384; R.C. 1895, § 8225; R.C. 1899, § 8225; R.C. 1905, § 10034; C.L. 1913, § 10871; R.C. 1943, § 29-2205.

Notes to Decisions

Construction.

Although the statute specifically refers only to jury questions on a “point of law” and jury requests to have testimony read, the statute is construed to require that all communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant. State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427, 2008 N.D. LEXIS 228 (N.D. 2008).

Court’s Comments.

Where, after the jury retired for deliberation, trial judge entered jury room at request of jurors, in absence of defendant and his attorney, and had some conversation with the jury in reference to the case, such action required the granting of a new trial, without consideration of the question whether or not the conversation was prejudicial. State v. Murphy, 17 N.D. 48, 115 N.W. 84, 1908 N.D. LEXIS 17 (N.D. 1908).

Harmless Error.

While it was error for trial court to communicate with the jury outside the presence of defendant and his attorney after the jury had retired for deliberations, such error was harmless error where it could be determined beyond a reasonable doubt that such communication did not affect the substantial rights of the defendant. State v. Hatch, 346 N.W.2d 268, 1984 N.D. LEXIS 260 (N.D. 1984).

Where the trial court responded to a written question from the jury concerning the testimony about an exhibit with a written response telling the jurors to rely on their own recollections, it would be unreasonable to conclude that defendant’s presence or absence would have had any effect on the result; there was no possibility of prejudice and the trial court’s error was harmless beyond a reasonable doubt. State v. Zimmerman, 524 N.W.2d 111, 1994 N.D. LEXIS 235 (N.D. 1994).

The trial court’s error in communicating with the jury in the absence of the defendant was harmless beyond a reasonable doubt where, considering the jury’s requests, defense counsel’s repeated waiver, and the trial court’s responses, it would have been unreasonable to conclude that defendant’s presence or absence would have had any effect on the result. State v. Ash, 526 N.W.2d 473, 1995 N.D. LEXIS 5 (N.D. 1995).

In an assault of a police officer case, defendant was not denied a fair trial when the district court answered requests from the jury while defendant was hospitalized as the procedure for answering such requests under N.D.C.C. § 29-22-05 was followed, and every effort to protect defendant’s rights and to avoid any possibility of prejudice to defendant was made. The discussion about the two jury requests while defendant was hospitalized was harmless beyond a reasonable doubt. State v. Curtis, 2009 ND 34, 763 N.W.2d 443, 2009 N.D. LEXIS 62 (N.D. 2009).

Open Court.

Whatever takes place upon return of jury for further instructions must take place in open court with counsel for state and defendant and his attorney present. State v. Murphy, 17 N.D. 48, 115 N.W. 84, 1908 N.D. LEXIS 17 (N.D. 1908).

Trial court’s communication with jury outside presence of counsel and defendant, occurring when court had bailiff inform jury that court could not comply with request to answer question concerning meaning of an expression used by a witness, was error, but error was not prejudicial to substantial rights of defendant and did not entitle defendant to new trial. State v. Klein, 200 N.W.2d 288, 1972 N.D. LEXIS 133 (N.D. 1972).

The jury’s question about a defense incorporating profound psychosis and alcohol withdrawal was not improper communication with the court, even though the defendant was not present. State v. Klose, 2003 ND 39, 657 N.W.2d 276, 2003 N.D. LEXIS 31 (N.D. 2003).

Petitioner’s trial counsel was not ineffective when he failed to claim error for the trial court’s procedure in responding to two specific questions and/or failed to exercise petitioner’s statutory right to have the jury brought into the courtroom and have the information requested by the jury given to it because the jury did not request testimony or to be brought into court, the trial court’s communication with the jury was made in open court in the presence of petitioner and his counsel, and counsel testified that he found the trial court’s response acceptable to the defense. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Reading of Instructions.

Rule 30, N.D.R.Crim.P. requires that, except when the parties agree to oral instructions by the court, final jury instructions must be in written form and must be read by the court to the jury; the general term “instruct” does not allow a court to submit written instructions to a jury without the court reading those instructions to the jury. State v. Lamb, 541 N.W.2d 457, 1996 N.D. LEXIS 10 (N.D. 1996).

Reading Testimony to Jury.

Where a juror requested to have read to her the testimony of a particular witness, and the court reporter read to her the testimony requested and testimony of another witness which the juror did not specifically request, if any error was committed in permitting the reading of the unrequested testimony it was harmless where the portion of the unrequested testimony was less than one page and substantially consistent with the requested testimony, there was no indication that the court reporter prefaced the reading of the unrequested testimony with a statement to the effect that it was the testimony of a different witness than the one requested, and there was no specific objection to the reading of the unrequested testimony. State v. Hartsoch, 329 N.W.2d 367, 1983 N.D. LEXIS 225 (N.D. 1983).

Where a juror requested to have read to her the testimony of a particular witness, this section required the testimony to be read to the jury, and whether or not the testimony was emphasized by being read to the jury was an inescapable consequence of this section and was not reversible error. State v. Hartsoch, 329 N.W.2d 367, 1983 N.D. LEXIS 225 (N.D. 1983).

Where jury requests witness’s testimony be read, the court may request the jury to specify the testimony it desires to rehear to save time and avoid confusion; party objecting to limits on testimony read must request that court have additional testimony of the witness read. State v. Christensen, 1997 ND 57, 561 N.W.2d 631, 1997 N.D. LEXIS 53 (N.D. 1997).

Reduction to Writing.

The statute requiring all instructions in a criminal case to be reduced to writing does not apply to instructions given in response to requests made and questions propounded by the jury after submission of the cause and retirement of the jury. State v. Schell, 65 N.D. 126, 256 N.W. 416, 1934 N.D. LEXIS 179 (N.D. 1934).

Request of Jury in Open Court.

The trial court erred by responding to the jurors’ request for a legal definition in the defendant’s absence and by not calling the jury into open court. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

District court’s failure to call the jury into open court to observe the effect of the prolonged late-night deliberations was not reversible error under N.D.C.C. § 29-22-05 where the jury was informed that it would be given a break at 6 p.m., it had returned a verdict at 7:35 p.m., and as a result, the jury was not exposed to prolonged late-night deliberations. Furthermore, where the jury submitted written questions, the defendant was present when the court considered how to respond to the jury’s questions; defendant failed to object to the court’s procedure to address the jury questions and failed to show how the court’s procedure constituted plain error affecting his substantial rights. State v. Fehl-Haber, 2007 ND 99, 734 N.W.2d 770, 2007 N.D. LEXIS 100 (N.D. 2007).

Right to Be Present Violated.

Given the jury’s 17-hour workday, the lateness of the hour, the district court’s knowledge of the deadlocked jury’s numerical division, the two responses to the jurors encouraging them to continue to try to reach a verdict, the failure of the court to follow the proper procedure in addressing the jury’s questions, and the lack of a record of the in-chamber conferences, defendant’s right to be present was violated and the verdicts were improperly coerced in violation of defendant’s due process right to a fair trial. While each of the errors in defendant’s case, standing alone, arguably might have been harmless, the errors were so intertwined and interrelated that the cumulative effect of the errors required reversal of all three criminal judgments, and a remand for a new trial. State v. Parisien, 2005 ND 152, 703 N.W.2d 306, 2005 N.D. LEXIS 185 (N.D. 2005).

While a trial court committed plain error in responding to a jury’s request for a transcript of a witness’s testimony without calling the jury into open court, the error did not affect defendant’s substantial rights because defendant was not prejudiced by the error; the overwhelming evidence, including the audio recording of the controlled methamphetamine buy, the testimony of a confidential informant, and the testimony of the investigating officer, supported defendant’s conviction for delivery of methamphetamine. State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427, 2008 N.D. LEXIS 228 (N.D. 2008).

Trial Court’s Comments.

It was not reversible error for judge, after twenty-eight hours of deliberation, to tell jury they ought to be able to reach a verdict since case had twice been tried at great deal of expense to county. Territory v. King, 50 N.W. 623, 6 Dakota 131, 1889 Dakota LEXIS 48 (Dakota 1889).

Trial court made no error where, in response to jury foreman’s request for another explanation of the offense of aggravated assault, he read the criminal information against the defendant and the jury instructions which set forth various definitions and an analytical simplification of the statute defining the offense of aggravated assault, and after the reading he asked the jury foreman if he understood the court’s answer. State v. Hartsoch, 329 N.W.2d 367, 1983 N.D. LEXIS 225 (N.D. 1983).

Trial court’s incorrect statement to the jury that the jury “would not normally receive the testimony of defendant and a police officer but, by virtue of the nature of the instant case, the court granted that latitude and that’s all the transcripts and all the reading you’ll receive” did not constitute obvious error because it was not clear that the jury was denied access to reexamine any evidence or testimony and defendant had not demonstrated that he suffered a serious injustice or prejudice. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Because the specific crime intended to be committed in the premises was not an element of burglary under N.D.C.C. § 12.1-22-02(1), the jury instruction stating the State was required to prove defendant “then and there intended to commit a crime in the premises” correctly informed the jury of the applicable law, and, under N.D.C.C. § 29-22-05, the district court did not err by referring the jury to the jury instructions in its response to a jury question. State v. Mertz, 2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129 (N.D. 2012).

Waiver.

The defense attorney’s failure to object to the trial court’s handling of a jury request to hear the defendant’s testimony again constituted waiver of the issue on appeal. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Collateral References.

Propriety and prejudicial effect in criminal case of placing jury in charge of officer who is a witness in the case, 38 A.L.R.3d 1012.

Separation of jury in criminal case during trial—modern cases, 72 A.L.R.3d 131.

Separation of jury in criminal case after submission of cause — modern cases, 72 A.L.R.3d 240, 247.

Communications between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal — post-Parker cases, 35 A.L.R.4th 890.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Criminal Law — Murder, 71 N.D. L. Rev. 867 (1995).

29-22-06. Court may recall jurors for supplemental instructions.

The court may recall the jurors after they have retired to consider their verdict to give them additional instructions or to correct any erroneous instructions it has given them. Such additional or corrective instructions may be given only after notice to the state’s attorney and to counsel for the defendant.

Source:

R.C. 1943, § 29-2206.

29-22-07. Court open during absence of jury.

While the jurors are absent, the court may adjourn from time to time as to other business, but it nevertheless is deemed open for every purpose connected with the cause submitted to them until a verdict is rendered or the jury is discharged.

Source:

C. Crim. P. 1877, §§ 388, 389; R.C. 1895, § 8229; R.C. 1899, § 8229; R.C. 1905, § 10038; C.L. 1913, § 10875; R.C. 1943, § 29-2207.

29-22-08. Verdict prevented — Cause retried.

When jurors are discharged or prevented from giving a verdict by reason of an accident or other cause, except when the defendant is discharged from the information or indictment during the progress of the trial or after the cause is submitted to them, the cause may be tried again at the same or another term, as the court may direct.

Source:

C. Crim. P. 1877, § 387; R.C. 1895, § 8228; R.C. 1899, § 8228; R.C. 1905, § 10037; C.L. 1913, § 10874; R.C. 1943, § 29-2208.

29-22-09. Return of verdict.

When the jurors have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names then must be called and if not all of them appear, the rest must be discharged without giving a verdict. In that case the cause must be tried again at the same or another term.

Source:

C. Crim. P. 1877, § 390; R.C. 1895, § 8230; R.C. 1899, § 8230; R.C. 1905, § 10039; C.L. 1913, § 10876; R.C. 1943, § 29-2209.

Cross-References.

Verdict, see N.D.R.Crim.P., Rule 31.

29-22-10. Verdict may be oral or in writing — Preparation.

The verdict of the jurors may be rendered orally or in writing, as the jurors may elect, unless the court, at the time the case is submitted to the jurors, requires that it be rendered in writing. When the court so requires, the clerk of the court, under the direction of the court, shall provide blank verdicts of suitable form for any verdict the jurors may return in the action and such blank verdicts must be taken by the jurors when they retire.

Source:

R.C. 1895, § 8234; R.C. 1899, § 8234; R.C. 1905, § 10043; C.L. 1913, § 10880; R.C. 1943, § 29-2210.

Cross-References.

Verdict, see N.D.R.Crim.P., Rule 31.

29-22-11. Presence of defendant — Felony or misdemeanor. [Repealed]

Superseded by N.D.R.Crim.P., Rule 43.

29-22-12. Procedure when jurors appear.

When the jurors appear, they must be asked by the court or the clerk whether they have agreed upon their verdict and if the foreman answers in the affirmative, they, on being required, shall declare the same.

Source:

C. Crim. P. 1877, § 392; R.C. 1895, § 8232; R.C. 1899, § 8232; R.C. 1905, § 10041; C.L. 1913, § 10878; R.C. 1943, § 29-2212.

29-22-13. Jurors may be polled — Procedure. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-14. Clerk to record verdict — Dissent — Procedure.

When the verdict given is such as the court may receive, the clerk immediately shall record it in full upon the minutes and shall read it to the jurors and inquire of them whether it is their verdict. If any juror disagrees, the fact must be entered upon the minutes and the jurors again sent out, but if no disagreement is expressed, the verdict is complete and the jurors must be discharged from the case.

Source:

C. Crim. P. 1877, § 408; R.C. 1895, § 8252; R.C. 1899, § 8252; R.C. 1905, § 10061; C.L. 1913, § 10898; R.C. 1943, § 29-2214.

29-22-15. General or special verdict — Libel. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-16. General verdicts — Contents. [Repealed]

Repealed by S.L. 1981, ch. 91, § 66.

29-22-17. Special verdict — Sufficiency. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-18. Special verdict rendered in writing. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-19. Form of special verdict. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-20. Sealed verdict — Proceedings upon.

The court, with the consent of the state’s attorney and the defendant, may instruct the jurors that if they should agree upon a verdict during a temporary adjournment of the court, they may sign the same by their foreman, seal it in an envelope, and deliver it to the officer in whose charge they are, after which they may separate until the next convening of the court, at which time they shall reassemble in the jury box. As soon as convenient, the officer shall deliver the sealed verdict to the clerk. When the jurors have reassembled in open court, the envelope must be opened and the same proceedings must be had as upon the reception of other verdicts, except that the consent by the defendant to a sealed verdict constitutes a waiver of the defendant’s right to poll the jury as provided in rule 31 of the North Dakota Rules of Criminal Procedure.

Source:

R.C. 1943, § 29-2220; S.L. 1979, ch. 187, § 65.

Collateral References.

Interrogation or Poll of Jurors, During Criminal Trial, as to Whether They Were Exposed to Media Publicity Pertaining to Alleged Crime or Trial. 55 A.L.R.6th 157.

29-22-21. Sealed verdict — Admonition to jurors.

If the court authorizes the rendition of a sealed verdict, it shall admonish the jurors not to make any disclosure concerning it nor to speak with any other person concerning the cause until their verdict has been rendered in open court.

Source:

R.C. 1943, § 29-2221.

29-22-22. Verdict rendered and additional instruction given on any day.

A verdict and additional or corrective instructions may be given on any day, including Sunday or any legal holiday.

Source:

R.C. 1943, § 29-2222.

Notes to Decisions

Instructions on Sunday.

The court may give additional instructions to the jury on Sunday. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1875).

29-22-23. Conviction of attempt or of included offense. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-24. Finding on charge of previous conviction.

Whenever the fact of a previous conviction of another offense is charged in the information or indictment, the jurors, if they find a verdict of guilty of the offense with which the defendant is charged, also must find whether or not the defendant has suffered such previous conviction, unless the answer of defendant admits the charge. In addition to the verdict of “guilty”, the verdict of the jurors upon a charge of previous conviction may be, “we also find the charge of previous conviction true”, or “we also find the charge of previous conviction not true”, as they find that the defendant has or has not suffered such conviction.

Source:

R.C. 1895, § 8243; R.C. 1899, § 8243; R.C. 1905, § 10052; C.L. 1913, § 10889; R.C. 1943, § 29-2224.

29-22-25. Several defendants — Part convicted. [Repealed]

Superseded by N.D.R.Crim.P., Rule 31.

29-22-26. Verdict returned — Duty of court — May decrease or increase punishment.

If the jurors return a verdict of guilty against the accused, the court, before it is accepted, shall ascertain whether it conforms to the law of the case. If, in the opinion of the court, the verdict does not conform to the requirements of the law of the case, the court, with proper instructions as to the error, shall direct the jurors to reconsider the verdict and the verdict cannot be accepted nor recorded until it is rendered in proper form. But if the punishment imposed by the jurors in the verdict, when they are authorized by law to determine the punishment, is not in conformity to the law of the case in that regard, the court may proceed as follows:

  1. If the punishment imposed by the jurors in the verdict is under the limit prescribed by law for the offense of which the defendant is found guilty, the court may receive the verdict and thereupon render judgment and pronounce sentence for the lowest limit prescribed by law in such a case; or
  2. If the punishment imposed by the jurors in the verdict is greater than the highest limit prescribed by law for the offense of which the defendant is found guilty, the court shall disregard the excess and render judgment and pronounce sentence according to the highest limit prescribed by law in the particular case.

Source:

R.C. 1895, § 8246; R.C. 1899, § 8246; R.C. 1905, § 10055; C.L. 1913, § 10892; R.C. 1943, § 29-2226.

Notes to Decisions

Exceptions.

Exceptions mentioned in this statute apply only to legal and valid verdicts. State v. Barry, 14 N.D. 316, 103 N.W. 637, 1905 N.D. LEXIS 37 (N.D. 1905).

Mandatory Statute.

Provisions of this statute requiring highest or lowest punishment are mandatory. State v. Barry, 14 N.D. 316, 103 N.W. 637, 1905 N.D. LEXIS 37 (N.D. 1905).

Questioning of Jury Unnecessary.

Trial court did not err in refusing to question jurors about the verdict; a trial court satisfies its obligation by comparing the verdict with the law of the case, and the trial court is not required to question individual jurors about how the verdict was reached. State v. McClary, 2004 ND 98, 679 N.W.2d 455, 2004 N.D. LEXIS 194 (N.D. 2004).

Collateral References.

Propriety and effect of court’s indication to jury that court would suspend sentence, 8 A.L.R.2d 1001.

Validity and efficacy of accused’s waiver of unanimous verdict, 97 A.L.R.3d 1253.

Quotient verdicts, 8 A.L.R.3d 335.

Consistency of verdict in criminal case, necessity of, 22 A.L.R.3d 717.

29-22-27. Reconsideration of verdict of guilty — None of acquittal.

When there is a verdict of conviction in which it appears to the court that the jurors have mistaken the law, the court may explain the reason for that opinion and may direct the jurors to reconsider their verdict. If, after the reconsideration, they return the same verdict, it must be entered. When there is a verdict of acquittal, the court cannot require the jurors to reconsider it.

Source:

C. Crim. P. 1877, § 404; R.C. 1895, § 8248; R.C. 1899, § 8248; R.C. 1905, § 10057; C.L. 1913, § 10894; R.C. 1943, § 29-2227.

29-22-28. Reconsideration of verdict neither general nor special.

If the jurors render a verdict which is neither a general nor a special verdict, the court, with proper instructions as to the law, may direct them to reconsider it, and it cannot be recorded until it is rendered in such form that it can be clearly understood therefrom whether the intent of the jurors is to render a general verdict or to find the facts specially and to leave the judgment to the court.

Source:

C. Crim. P. 1877, § 405; R.C. 1895, § 8249; R.C. 1899, § 8249; R.C. 1905, § 10058; C.L. 1913, § 10895; R.C. 1943, § 29-2228.

29-22-29. Judgment if jurors persist — Acquittal.

If the jurors persist in finding a verdict such as is described in section 29-22-28 from which it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court shall give a judgment of acquittal. No judgment of conviction can be given, however, unless the jurors expressly find against the defendant upon the issue, or unless judgment is given against the defendant on a special verdict.

Source:

C.Crim. P. 1877, § 406; R.C. 1895, § 8250; R.C. 1899, § 8250; R.C. 1905, § 10059; C.L. 1913, § 10896; R.C. 1943, § 29-2229.

29-22-30. Judgment of acquittal — Discharge of defendant.

If a judgment of acquittal is given on a general verdict and the defendant is not detained for any other legal cause, the defendant must be discharged as soon as judgment is given.

Source:

C. Crim. P. 1877, § 409; R.C. 1895, § 8253; R.C. 1899, § 8253; R.C. 1905, § 10062; C.L. 1913, § 10899; R.C. 1943, § 29-2230.

29-22-31. Verdict of guilty — Procedure.

If a general verdict is rendered against the defendant, or a special verdict is given, the defendant must be remanded, if in custody, or, if the defendant is at large on bail, may be committed to the proper officer of the county to await the judgment of the court upon the verdict. When committed, the defendant’s bail is exonerated, or if money is deposited instead of bail, it must be refunded in accordance with section 29-08-28.

Source:

C. Crim. P. 1877, § 410; R.C. 1895, § 8254; R.C. 1899, § 8254; R.C. 1905, § 10063; C.L. 1913, § 10900; R.C. 1943, § 29-2231; S.L. 1999, ch. 291, § 3.

Notes to Decisions

Refund to Defendant.

A defendant who paid for his own bond is entitled to exoneration and the return of his bond because of his incarceration at the state penitentiary, and the state is not excused from returning the bond to him on the grounds that it previously gave the money to his wife. State v. Owens, 1997 ND 212, 570 N.W.2d 217, 1997 N.D. LEXIS 270 (N.D. 1997).

29-22-32. Argument of special verdict.

A special verdict may be brought to argument by either party, upon two days’ notice to the other, at the same or another term of the court.

Source:

C. Crim. P. 1877, § 398; R.C. 1895, § 8239; R.C. 1899, § 8239; R.C. 1905, § 10048; C.L. 1913, § 10885; R.C. 1943, § 29-2232.

29-22-33. Judgment upon special verdict.

The court shall give judgment upon a special verdict as follows:

  1. If the plea is not guilty and the facts prove the defendant guilty of the offense charged in the information or indictment, or of any other offense of which the defendant could be convicted under the information or indictment, judgment must be given accordingly, but if otherwise, a judgment of acquittal must be given.
  2. If the plea is a former conviction or acquittal of the same offense, or once in jeopardy, the court shall give a judgment of conviction or acquittal according as the facts prove or fail to prove the plea.

Source:

C. Crim. P. 1877, § 399; R.C. 1895, § 8240; R.C. 1899, § 8240; R.C. 1905, § 10049; C.L. 1913, § 10886; R.C. 1943, § 29-2233.

29-22-34. New trial must be ordered for incomplete verdict.

If the jurors, in a special verdict, do not pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely and not the conclusions of fact from the evidence, as established to their satisfaction, the court shall order a new trial.

Source:

C. Crim. P. 1877, § 400; R.C. 1895, § 8241; R.C. 1899, § 8241; R.C. 1905, § 10050; C.L. 1913, § 10887; R.C. 1943, § 29-2234.

29-22-35. When conviction or acquittal a bar.

If the defendant has been convicted or acquitted upon an information or indictment for an offense consisting of different degrees, the conviction or acquittal is a bar to another information or indictment for the offense charged or for any lower degree of that offense or for an offense necessarily included therein.

Source:

R.C. 1895, § 8219; R.C. 1899, § 8219; R.C. 1905, § 10028; C.L. 1913, § 10865; R.C. 1943, § 29-2235.

29-22-36. When defense insanity and jury acquits. [Repealed]

Repealed by S.L. 1981, ch. 91, § 66.

29-22-37. Discharge of jurors.

After the retirement of the jurors to consider their verdict, they may be discharged from the cause when:

  1. The verdict has been returned and entered on the minutes of the court;
  2. One of the jurors becomes so sick that that juror cannot continue to discharge that juror’s duty and there is no alternate juror;
  3. Any accident or other cause prevents keeping the jurors together for deliberation;
  4. Upon the expiration of such time as the court deems proper, it appears that there is no reasonable probability that the jurors can agree upon a verdict; or
  5. The court finally adjourns.

The court in any event may discharge the jurors from the cause if the state’s attorney and the defendant consent to such discharge and their consent is entered upon the minutes of the court.

Source:

C. Crim. P. 1877, §§ 385, 386, 388, 389; R.C. 1895, §§ 8226, 8227, 8229; R.C. 1899, §§ 8226, 8227, 8229; R.C. 1905, §§ 10035, 10036, 10038; C.L. 1913, §§ 10872, 10873, 10875; R.C. 1943, § 29-2237.

CHAPTER 29-23 Proceedings after Verdict and Before Judgment

29-23-01. Statement of the case — How constituted. [Repealed]

Superseded by N.D.R.App.P., Rules 10, 28.

29-23-02. Statement of case — Its office — What need not be embodied. [Repealed]

Superseded by N.D.R.App.P., Rules 10, 28.

29-23-03. Statement of the case — By whom settled. [Repealed]

Superseded by N.D.R.App.P., Rules 10, 28.

29-23-04. Statement of the case — Filing thereof — Made part of record. [Repealed]

Superseded by N.D.R.App.P., Rules 10, 28.

29-23-05. Matters deemed excepted to. [Repealed]

Superseded by N.D.R.Crim.P., Rule 51.

29-23-06. Instructions excepted to part of record. [Repealed]

Superseded by N.D.R.Crim.P., Rules 30, 51.

29-23-07. Clerk to enter orders — Certified copies.

The clerk of the district court in which any criminal action or proceeding is pending or tried shall enter, in the minutes of such court, each ruling or decision of the court made in open court, if such ruling is not noted by the official reporter. A certified copy of any or all such entries must be and become a part of the record of said action.

Source:

R.C. 1895, § 8261; R.C. 1899, § 8261; R.C. 1905, § 10070; C.L. 1913, § 10907; R.C. 1943, § 29-2307.

Notes to Decisions

Order Granting New Trial.

An order granting or refusing a new trial must be in writing, signed by the judge, and filed in the office of the clerk of district court in which the prosecution is pending, or, if made orally in open court, it must be carefully and correctly entered in the court’s minutes. State v. Lindeman, 64 N.D. 518, 254 N.W. 276, 1934 N.D. LEXIS 229 (N.D. 1934).

29-23-08. When supreme court may settle statement. [Repealed]

Superseded by N.D.R.App.P., Rules 10, 28.

29-23-09. Time may be extended. [Repealed]

Superseded by N.D.R.App.P., Rules 10, 28.

29-23-10. Title construed.

Nothing in this title contained is to be construed so as to deprive either party of the right to take advantage of any action or decision of the court in a criminal action or proceeding which affects any other material or substantial right of either party, whether before or after the trial, or on such trial.

Source:

R.C. 1895, § 8263; R.C. 1899, § 8263; R.C. 1905, § 10072; C.L. 1913, § 10909; R.C. 1943, § 29-2310.

29-23-11. An error in record basis of motion for new trial or appeal.

Any error committed by the court in or by any decision, ruling, instruction, or other act, and appearing in the record of the action, may be taken advantage of upon a motion for a new trial or in the supreme court on an appeal.

Source:

R.C. 1895, § 8269; R.C. 1899, § 8269; R.C. 1905, § 10078; C.L. 1913, § 10915; R.C. 1943, § 29-2311.

CHAPTER 29-24 Motion for New Trial [Repealed]

[Superseded by North Dakota Rules of Civil Procedure, Rule 33]

CHAPTER 29-25 Motion in Arrest of Judgment

29-25-01. Motion in arrest of judgment defined. [Repealed]

Superseded by N.D.R.Crim.P., Rule 34.

29-25-02. Grounds for arrest of judgment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 34.

29-25-03. Form and contents of motion — Entry in minutes. [Repealed]

Superseded by N.D.R.Crim.P., Rule 34.

29-25-04. Notice of motion — When motion heard and decided. [Repealed]

Superseded by N.D.R.Crim.P., Rule 34.

29-25-05. Effect of allowing a motion in arrest.

The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which the defendant was before the information was filed or the indictment found.

Source:

C. Crim. P. 1877, § 426; R.C. 1895, § 8276; R.C. 1899, § 8276; R.C. 1905, § 10085; C.L. 1913, § 10922; R.C. 1943, § 29-2505.

Cross-References.

Arrest of judgment, see N.D.R.Crim.P., Rule 34.

29-25-06. Judgment arrested — Further prosecution — Acquittal.

If, from the evidence in a trial, there is reason to believe the defendant guilty, and a new information or indictment can be framed upon which the defendant may be convicted, the court may order the defendant to be recommitted to the officer of the proper county, or admitted to bail anew, to answer the new information or indictment. If the evidence shows the defendant guilty of another offense, the defendant must be committed or held thereon, and in neither case may the verdict be a bar to another prosecution. If no evidence appears sufficient to charge the defendant with any offense, the defendant, if in custody, must be discharged, or if admitted to bail, the defendant’s bail must be exonerated, or if money has been deposited instead of bail, it must be refunded, and the arrest of judgment operates as an acquittal of the defendant of the charge upon which the information or indictment was founded.

Source:

C. Crim. P. 1877, § 427; R.C. 1895, § 8277; R.C. 1899, § 8277; R.C. 1905, § 10086; C.L. 1913, § 10923; R.C. 1943, § 29-2506.

Cross-References.

Arrest of judgment, see N.D.R.Crim.P., Rule 34.

CHAPTER 29-26 Judgment and Sentence

29-26-01. Judgment after conviction — Time. [Repealed]

Superseded by N.D.R.Crim.P., Rule 32.

29-26-02. Time specified for pronouncing judgment. [Repealed]

Superseded by N.D.R.Crim.P., Rule 32.

29-26-03. Judgment — Where rendered.

Judgment must be rendered in open court unless for cause its rendition is deferred.

Source:

R.C. 1943, § 29-2603.

29-26-04. Defendant’s presence — Felony or misdemeanor. [Repealed]

Superseded by N.D.R.Crim.P., Rule 43.

29-26-05. Officer to produce defendant.

When the defendant is in custody, the court may direct the officer in whose custody the defendant is to bring the defendant before it for judgment, and the officer must do so accordingly.

Source:

C. Crim. P. 1877, § 431; R.C. 1895, § 8281; R.C. 1899, § 8281; R.C. 1905, § 10090; C.L. 1913, § 10927; R.C. 1943, § 29-2605.

29-26-06. Bench warrant if defendant does not appear for judgment.

If the defendant has been discharged on bail, or has deposited money in lieu thereof, and does not appear for judgment when the defendant’s personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of money deposited, may direct the clerk to issue a bench warrant for the defendant’s arrest.

Source:

C. Crim. P. 1877, § 432; R.C. 1895, § 8282; R.C. 1899, § 8282; R.C. 1905, § 10091; C.L. 1913, § 10928; R.C. 1943, § 29-2606.

29-26-07. Issuance of bench warrant — Duty of clerk.

The clerk, on the application of the state’s attorney, at any time after the order directing a bench warrant to be issued, whether the court is sitting or not, shall issue a bench warrant into one or more counties.

Source:

C. Crim. P. 1877, § 433; R.C. 1895, § 8283; R.C. 1899, § 8283; R.C. 1905, § 10092; C.L. 1913, § 10929; R.C. 1943, § 29-2607.

29-26-08. Form of bench warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 58.

29-26-09. Bench warrant service.

A bench warrant may be served in any county of the state and in the same manner as a warrant of arrest.

Source:

C. Crim. P. 1877, § 435; R.C. 1895, § 8285; R.C. 1899, § 8285; R.C. 1905, § 10094; C.L. 1913, § 10931; R.C. 1943, § 29-2609.

29-26-10. Disposition of defendant on arrest.

Whether a bench warrant issued as provided in section 29-26-06 is served in the county in which it was issued or in another county, the officer shall arrest the defendant and bring the defendant before the court, or commit the defendant to the officer mentioned in the warrant, according to the command thereof.

Source:

C. Crim. P. 1877, § 436; R.C. 1895, § 8286; R.C. 1899, § 8286; R.C. 1905, § 10095; C.L. 1913, § 10932; R.C. 1943, § 29-2610.

29-26-11. Defendant informed of rights.

When a defendant appears for judgment, the defendant must be informed by the court, or by the clerk under its direction, of the nature of the charge against the defendant, and of the defendant’s plea, and the verdict, if any, thereon, and must be asked whether the defendant has any legal cause to show why judgment should not be pronounced against the defendant.

Source:

C. Crim. P. 1877, § 437; R.C. 1895, § 8287; R.C. 1899, § 8287; R.C. 1905, § 10096; C.L. 1913, § 10933; R.C. 1943, § 29-2611.

Notes to Decisions

Corrections.

If corrections sought in the judgment are merely clerical, the court, after the term, may amend the record so as to show proceedings according to the facts, even where the defects in the original record are such as would be fatal to the judgment. Territory v. Christensen, 31 N.W. 847, 4 Dakota 410, 1887 Dakota LEXIS 6 (Dakota 1887).

Collateral References.

Voluntary absence when sentence is pronounced, 59 A.L.R.5th 135.

29-26-12. Defendant may show cause against judgment.

The defendant may show cause against pronouncement of judgment:

  1. That the defendant is insane;
  2. That the defendant has good cause to offer, either in arrest of judgment or for a new trial, in which case the court may order the judgment to be deferred, and may proceed to decide upon the motion in arrest of judgment or for a new trial;
  3. That the defendant is not the person against whom the verdict was rendered; or
  4. That the defendant has been pardoned of the offense for which judgment is to be rendered.

Source:

C. Crim. P. 1877, § 438; R.C. 1895, § 8288; R.C. 1899, § 8288; R.C. 1905, § 10097; C.L. 1913, § 10934; R.C. 1943, § 29-2612.

29-26-13. Procedure when insanity alleged as cause for not pronouncing sentence.

When the cause alleged for not pronouncing sentence is insanity, the court, if there is reasonable ground to believe that the defendant is insane, shall postpone the pronouncement of judgment and shall proceed to have the defendant’s mental condition determined in the manner prescribed in this title, so far as applicable, for the determination of the mental condition of a defendant before or during trial. Whenever it is determined that the defendant is or has become sane, the defendant must be brought before the court for judgment.

Source:

C. Crim. P. 1877, § 438; R.C. 1895, § 8288; R.C. 1899, § 8288; R.C. 1905, § 10097; C.L. 1913, § 10934; R.C. 1943, § 29-2613.

29-26-14. Procedure when nonidentity or pardon is alleged as cause for not pronouncing sentence.

When the reason alleged for not pronouncing sentence is that the person brought before the court to be sentenced is not the person against whom the verdict was rendered, or that the defendant has been pardoned of the offense charged, the court shall postpone the pronouncement of judgment, if necessary, for the purpose of hearing evidence relating to the identity or pardon of such person, and on proof of nonidentity or pardon, as the case may be, shall discharge such person from custody, unless the person is in custody on some other charge.

Source:

R.C. 1943, § 29-2614.

29-26-15. Judgment rendered. [Repealed]

Superseded by N.D.R.Crim.P., Rule 32.

29-26-16. Court to hear evidence — Degree of crime.

Upon a plea of guilty of a crime divided into degrees, the court, if such plea is accepted and the defendant does not designate in the defendant’s plea the degree thereof, before passing sentence, shall determine the degree, and the provisions, so far as applicable, of section 29-26-18 and of rule 32 of the North Dakota Rules of Criminal Procedure shall govern in said determination.

Source:

R.C. 1895, § 8290; R.C. 1899, § 8290; R.C. 1905, § 10099; C.L. 1913, § 10936; R.C. 1943, § 29-2616; S.L. 1979, ch. 187, § 66.

Notes to Decisions

Positive Plea.

A plea of guilty must be positive and definite as to the degree and must not merely refer to the information. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

Trial Court’s Discretion.

Except where a plea of guilty is received and there is doubt of degree of offense, it is entirely discretionary with trial court whether evidence shall be received in aggravation or mitigation of the punishment. State v. Gammons, 64 N.D. 702, 256 N.W. 163, 1934 N.D. LEXIS 255 (N.D. 1934).

Collateral References.

Duty of court, upon plea of guilty or nolo contendere to offense involving several degrees, to hear evidence to determine degree, 34 A.L.R.2d 919.

Mistaken belief in existence, validity, or effect of divorce or separation as mitigating punishment for bigamy or allied offense, 56 A.L.R.2d 915.

Other offenses committed by defendant, right of court in imposing sentence to consider, in absence of statute in that regard, 96 A.L.R.2d 768.

29-26-17. Extent of punishment — Aggravation or mitigation — Hearing.

After a plea or verdict of guilty, in a case when a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, in its discretion, may hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct.

Source:

C. Crim. P. 1877, § 440; R.C. 1895, § 8291; R.C. 1899, § 8291; R.C. 1905, § 10100; C.L. 1913, § 10937; R.C. 1943, § 29-2617.

Notes to Decisions

Trial Court’s Discretion.

Except where plea of guilty is received it is entirely discretionary whether evidence shall be received in aggravation or mitigation of punishment. State v. Gammons, 64 N.D. 702, 256 N.W. 163, 1934 N.D. LEXIS 255 (N.D. 1934).

Waiver of Objections.

Failure of defendant to object to exhibits presented to trial court just before sentencing was a waiver of such objections in the future. State v. Hefta, 88 N.W.2d 626, 1958 N.D. LEXIS 68 (N.D. 1958).

Collateral References.

Cruel and unusual punishment, under constitution, with respect to length of sentence, 33 A.L.R.3d 335.

Downward departure under state sentencing guidelines permitting downward departure for defendants with significantly reduced mental capacity, including alcohol or drug dependency, Sentencing — Downward Departure. 113 A.L.R.5th 597.

29-26-18. Evidence in aggravation or mitigation of punishment — How presented.

Circumstances in aggravation or mitigation of punishment must be presented by testimony of witnesses examined in open court, except when a witness is so sick or infirm as to be unable to attend, that witness’s deposition may be taken by a magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the court may direct, the criminal record of the defendant furnished by the federal bureau of investigation or the state superintendent of criminal identification and reports of the state parole office may be received by the court without verification or other foundation, and, results of psychological testing and psychiatric examination, certified in writing, may be received by the court without verification or other foundation, subject to such inspection and confrontation of witnesses as the court may permit or require in the interests of justice.

Source:

C. Crim. P. 1877, § 441; R.C. 1895, § 8292; R.C. 1899, § 8292; R.C. 1905, § 10101; C.L. 1913, § 10938; R.C. 1943, § 29-2618; S.L. 1959, ch. 259, § 1; 1963, ch. 244, § 1.

Cross-References.

Correction or reduction of sentence, see N.D.R.Crim.P., Rule 35.

Notes to Decisions

Confession as Evidence.

It was not error for trial court to receive exhibits concerning defendant’s confession although no foundation was laid by testimony, where defendant failed to object to such evidence. State v. Hefta, 88 N.W.2d 626, 1958 N.D. LEXIS 68 (N.D. 1958).

Criminal Record.

The criminal record of one accused of a crime, furnished by the Federal Bureau of Investigation, the state superintendent of criminal identification, or a state parole officer, may be received by the court, after conviction, without verification or other foundation, as evidence in considering circumstances in aggravation or mitigation of punishment. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

Failure to Object.

In prosecution for rape, where defendant was informed during trial that certain exhibits could not be received in evidence over his objection, and he did not object thereto, admission of such evidence did not violate this section. In re Stone, 171 N.W.2d 119, 1969 N.D. LEXIS 88 (N.D. 1969), cert. denied, 397 U.S. 912, 90 S. Ct. 912, 25 L. Ed. 2d 93, 1970 U.S. LEXIS 3002 (U.S. 1970).

Where court considered evidence from a newspaper article at the sentencing hearing, use of this evidence could not be reviewed on appeal because defendant did not object to the court’s consideration of the newspaper article during sentencing. State v. Wishnatsky, 491 N.W.2d 733, 1992 N.D. LEXIS 213 (N.D. 1992).

Parole or Probation Report.

Neither the Sixth Amendment nor this section requires that a defendant be permitted to cross-examine the person who prepares a parole or probation report. State v. Moran, 474 N.W.2d 77, 1991 N.D. LEXIS 153 (N.D. 1991).

Testimony of Witnesses.

Where defendant stands convicted by his own plea of guilty, the court has the right, in determining the extent of the punishment to be imposed, to hear evidence of circumstances in aggravation or mitigation of punishment. Under this section, such evidence should be presented in the form of testimony of witnesses examined in open court in the presence of the defendant. State v. Willms, 117 N.W.2d 84, 1962 N.D. LEXIS 89 (N.D. 1962).

29-26-19. Other evidence prohibited. [Repealed]

Superseded by N.D.R.Crim.P., Rule 32.

29-26-20. Successive terms of imprisonment. [Repealed]

Repealed by S.L. 1973, ch. 116, § 41.

29-26-21. Judgment for fine and costs.

A judgment that the defendant pay a fine and costs may not direct that the defendant be imprisoned until both the fine and costs are satisfied. Response to nonpayment of a fine must be as provided in section 12.1-32-05.

Source:

C. Crim. P. 1877, § 444; R.C. 1895, § 8295; R.C. 1899, § 8295; R.C. 1905, § 10104; C.L. 1913, § 10941; R.C. 1943, § 29-2621; S.L. 1975, ch. 106, § 334.

Notes to Decisions

Constitutionality.

This statute does not violate either the state or federal constitutions. State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, 1915 N.D. LEXIS 193 (N.D. 1915).

Additional Imprisonment.

A judgment that a prisoner be imprisoned and fined a certain sum, and that there be additional imprisonment in default of the payment of the fine, is valid. State v. Merry, 20 N.D. 337, 127 N.W. 83, 1910 N.D. LEXIS 85 (N.D. 1910).

Assault and Battery.

Person convicted of assault and battery, who fails to pay the fine and costs, may be imprisoned for nonpayment of costs as well as the fine. State v. Fleming, 20 N.D. 105, 126 N.W. 565, 1910 N.D. LEXIS 68 (N.D. 1910).

Building Ordinances.

A person convicted of violating an ordinance regulating the construction of wooden buildings could be imprisoned if the fine was not paid. City of Mayville v. Rosing, 19 N.D. 98, 123 N.W. 393, 1909 N.D. LEXIS 91 (N.D. 1909).

Charge on Estate.

Judgments imposed as punishment for the violation of a criminal law do not survive the death of the party against whom they are entered, so as to be a charge upon his estate. United States v. Jacob Schmidt Brewing Co., 254 F. 714, 1918 U.S. Dist. LEXIS 779 (D.N.D. 1918).

Court Costs.

An assessment of court costs is not a “fine” within the meaning of this section, and failure to pay such costs cannot result in imprisonment under its authority. State v. Allred, 254 N.W.2d 701, 1977 N.D. LEXIS 275 (N.D. 1977).

Interest.

Judgments in criminal cases do not bear interest. United States v. Jacob Schmidt Brewing Co., 254 F. 714, 1918 U.S. Dist. LEXIS 779 (D.N.D. 1918).

Justice Courts.

Justice of the peace cannot imprison defendant for failure to pay the fine. Ex parte Salhus, 63 N.D. 238, 247 N.W. 401, 1933 N.D. LEXIS 177 (N.D. 1933).

Unauthorized Insurance Agent.

Insurance agent who acted without a certificate of authority was guilty of a misdemeanor and subject to imprisonment for failure to pay his fine. In re Hogan, 8 N.D. 301, 78 N.W. 1051, 1899 N.D. LEXIS 7 (N.D. 1899).

29-26-22. Judgment for fines — Court administration fee — Community service supervision fee — Special funds — Docketing and enforcement.

  1. In all criminal cases except infractions, upon a plea or finding of guilt, the court shall impose a court administration fee in lieu of the assessment of court costs. The court administration fee must include a fee of one hundred twenty-five dollars for a class B misdemeanor, two hundred dollars for a class A misdemeanor, four hundred dollars for a class C felony, six hundred fifty dollars for a class B felony, and nine hundred dollars for a class A or AA felony.
  2. In addition, in all criminal cases except infractions, the court administration fee must include one hundred dollars. Of the additional one hundred dollar court administration fee, the first seven hundred fifty thousand dollars collected per biennium must be deposited in the indigent defense administration fund, which must be used for indigent defense services in this state, and the next four hundred sixty thousand dollars collected per biennium must be deposited in the court facilities improvement and maintenance fund. After the minimum thresholds have been collected, one-half of the additional court administration fee must be deposited in each fund.
  3. In addition to any court administration fees that may be imposed under subsections 1 and 2, the court shall impose upon each defendant who receives a sentence that includes community service a community service supervision fee of twenty-five dollars. The community service supervision fee must be deposited in the community service supervision fund. The fees deposited in this fund must be used to provide community service supervision grants subject to legislative appropriations.
  4. A court may waive the administration fee or community service supervision fee upon a showing of indigency as provided in section 25-03.1-13. District court administration fees, exclusive of amounts deposited in the indigent defense administration fund and the court facilities and improvement fund, and forfeitures must be deposited in the state general fund. A judgment that the defendant pay a fine or fees, or both, may be docketed and if docketed constitutes a lien upon the real estate of the defendant in like manner as a judgment for money rendered in a civil action. The court may allow the defendant to pay any assessed administration fee or community service supervision fee in installments. When a defendant is assessed administration fees or a community service supervision fee, the court may not impose at the same time an alternative sentence to be served if the fees are not paid.

Source:

Pen. C. 1877, § 793; C. Crim. P. 1877, § 445; R.C. 1895, §§ 7737, 8296; R.C. 1899, §§ 7737, 8296; R.C. 1905, §§ 9545, 10105; C.L. 1913, §§ 10381, 10941a; R.C. 1943, § 29-2622; S.L. 1975, ch. 288, § 1; 1977, ch. 293, § 1; 1987, ch. 385, § 5; 1987, ch. 394, § 1; 1989, ch. 158, § 10; 1995, ch. 321, § 1; 2003, ch. 266, § 6; 2007, ch. 282, § 1; 2009, ch. 281, § 1; 2011, ch. 240, § 1.

Cross-References.

Penitentiary prisoner’s compensation for labor, see § 12-48-14.

Notes to Decisions

Burden of Proof.

On appeal, the defendant has the burden of showing whether the costs as taxed were excessive. State v. McCauley, 68 N.D. 198, 277 N.W. 605, 1938 N.D. LEXIS 97 (N.D. 1938).

Amount of costs taxed will not be disturbed unless it affirmatively appears that amount fixed by trial court exceeded costs of prosecution. State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Costs As in Civil Case.

The costs upon conviction in a criminal action should be taxed by the clerk as is done in a civil case. State v. Kruse, 19 N.D. 203, 124 N.W. 385, 1909 N.D. LEXIS 106 (N.D. 1909).

Lien.

A judgment for maintaining a liquor nuisance presumptively is a lien upon the property occupied by the judgment debtor. State v. Ildvedson, 20 N.D. 62, 126 N.W. 489, 1910 N.D. LEXIS 63 (N.D. 1910).

Collateral References.

Parties liable for storage or similar caretaking charges as taxable costs in proceeding to forfeit personal property, 60 A.L.R.2d 813.

Extent of defendant’s liability for costs of prosecution, 65 A.L.R.2d 854.

29-26-22.1. Judgment for fine, costs, restitution, or reparation in criminal cases — Docketing and enforcement.

The court, within ten years of the date of entry of a judgment that imposes a fine, imposes a requirement that restitution or reparation be paid, or assesses costs against a defendant, may order the judgment to be docketed by the clerk of court in the judgment docket maintained pursuant to section 28-20-13 in the same manner in which a civil judgment for money is docketed. The docketing of the judgment has the same effect as the docketing of a civil judgment. The docketed judgment may be docketed in any other county in the same manner, it imposes a lien upon the real property owned by the defendant to the same extent, it is subject to the same statute of limitations, and it is enforceable by execution in the same manner as provided for a civil judgment for money. The court may direct a judgment be entered in favor of a person to whom restitution or reparation is ordered to be paid. That person may enforce the judgment as a civil judgment.

Source:

S.L. 1947, ch. 239, § 1; R.C. 1943, 1957 Supp., § 29-26221; S.L. 1987, ch. 385, § 6; 2019, ch. 270, § 2, effective August 1, 2019.

29-26-22.2. Authority to compromise judgment by county commissioners.

  1. If, after a lapse of two years from the filing of a judgment, the board of county commissioners determines the judgment cannot be collected in full, the board of county commissioners may compromise and settle any judgment for fines or costs arising from criminal proceedings which are payable to the state treasurer.
  2. The county’s compromise or settlement may include a request to the district court to convert any amount still owed to a civil judgment.
  3. Upon receipt of a certified copy of the board’s action, the state’s attorney of the county where the judgment was filed shall file a partial or total satisfaction of the judgment.
  4. In the absence of a compromise or settlement, or after one year has passed following the date of a compromise or settlement, the county may contract with a private debt collection company to collect any remaining balance. The county shall deposit any additional revenue collected under this subsection in the county general fund.

Source:

S.L. 1947, ch. 239, §§ 2, 3; R.C. 1943, 1957 Supp., § 29-26222; S.L. 1995, ch. 321, § 2; 2019, ch. 271, § 1, effective August 1, 2019.

Notes to Decisions

No Property Interest Created.

This section created no “claim of entitlement” in defendants to a compromise of their costs and fees. The statute merely authorizes the board to compromise and settle judgments for such costs and fees, accords the board broad, unfettered discretion in exercising its authority, and the statute provides no objective criteria or standards, nor any significant limitation upon the board’s discretion. At best, the statute creates “an abstract need or desire,” or a “mere unilateral expectation,” of potential benefits; therefore, the statute does not create a constitutionally protected property interest that would give rise to due process rights. Ennis v. Williams County Bd. of Comm'rs, 493 N.W.2d 675, 1992 N.D. LEXIS 244 (N.D. 1992).

Proof of Inability to Pay.

This section, although granting to the board broad discretion in deciding whether to compromise and settle a judgment for fines and costs, does provide one concrete benchmark: The board is to exercise its authority only “if in the opinion of said board said judgment cannot be collected in full.” Accordingly, a party seeking compromise and settlement of fines and costs must provide information demonstrating that he is, and will continue to be, unable to pay the judgment in full. Ennis v. Williams County Bd. of Comm'rs, 493 N.W.2d 675, 1992 N.D. LEXIS 244 (N.D. 1992).

29-26-22.3. Renewal of prior judgments. [Repealed]

Repealed by omission from this code.

29-26-23. Judgment upon conviction entered in minutes — Record.

When judgment upon a conviction is rendered, the clerk shall enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and, as soon as possible, shall annex together and file the following papers which constitute a record of the action:

  1. The information or indictment and all the papers filed in the action, together with a copy of the minutes of the plea;
  2. A copy of the minutes of the trial;
  3. The written charges given or refused, with endorsements, if any, thereon, and the written instructions given by the court, and the copy of any oral instructions by the court and filed with the clerk; and
  4. A copy of the judgment.

Source:

C. Crim. P. 1877, § 446; R.C. 1895, § 8297; R.C. 1899, § 8297; R.C. 1905, § 10106; C.L. 1913, § 10942; R.C. 1943, § 29-2623.

Notes to Decisions

Harmless Error.

Judgment will not be reversed, because charge was not made a part of the judgment roll, where record fails to show defendant requested judge to charge jury in writing. Territory v. Christensen, 31 N.W. 847, 4 Dakota 410, 1887 Dakota LEXIS 6 (Dakota 1887).

Oral Judgment Basis for Judgment of Record.

The statute contemplates that the written judgment that is ultimately filed and made a part of the records is a copy of the judgment pronounced by the court. There is no authority to add any penalty in the written judgment not contained in the oral pronouncement. State ex rel. Perry v. Garecht, 70 N.D. 599, 297 N.W. 132, 1941 N.D. LEXIS 206 (N.D. 1941).

29-26-24. Provisions governing suspension of sentence, probation, and parole not affected by this chapter.

Nothing in this chapter may be construed as affecting any statute governing suspension of sentence, suspension of imposition of sentence, probation, or parole.

Source:

R.C. 1943, § 29-2624.

Cross-References.

Correction or reduction of sentence, see N.D.R.Crim.P., Rule 35.

CHAPTER 29-27 Execution

29-27-01. Execution to officer.

When a judgment imposing a penalty other than a fine only has been pronounced, a certified copy of the entry thereof upon the minutes must be furnished forthwith to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.

Source:

C. Crim. P. 1877, § 447; R.C. 1895, § 8298; R.C. 1899, § 8298; R.C. 1905, § 10107; C.L. 1913, § 10961; R.C. 1943, § 29-2701; S.L. 1975, ch. 106, § 335.

Notes to Decisions

Evidence of Authority.

Commitment papers evidence authority of officer to hold the defendant in custody, but such detention is on account of, and in execution of, sentence and judgment of the court. State v. Blum, 57 N.D. 619, 223 N.W. 697, 1929 N.D. LEXIS 304 (N.D. 1929).

29-27-02. Judgment for fine or costs.

If the judgment mentioned in section 29-27-01 imposes a fine or assesses costs and the judgment has been docketed in the judgment docket by order of the court, the judgment is enforceable by execution in the same manner as provided for a judgment for money in a civil action.

Source:

C. Crim. P. 1877, § 448; R.C. 1895, § 8299; R.C. 1899, § 8299; R.C. 1905, § 10108; C.L. 1913, § 10962; R.C. 1943, § 29-2702; S.L. 1987, ch. 385, § 7.

29-27-02.1. Disposition of statutory fees, fines, forfeitures, pecuniary penalties, and bond forfeitures.

Except as otherwise provided by law, all statutory fees, fines, forfeitures, and pecuniary penalties prescribed for a violation of state laws, when collected, must be paid into the treasury of the proper county to be added to the state school fund. When any bail bond or other property or money deposited as bail is forfeited to the state, the proceeds collected therefrom must be paid over to the proper state official and credited to the state general fund.

Source:

S.L. 1973, ch. 301, § 16; 1995, ch. 321, § 3.

Cross-References.

Constitutional provision requiring fines to be added to school funds, see N.D. Const., Art. IX, § 2.

Municipal ordinance, fine for violation paid into municipal treasury, see § 40-11-13.

Notes to Decisions

Fines Not Collected from Violator.

There is no statutory authority which gives the state the right, upon conviction, to collect from the county an amount of money equivalent to the amount of the statutorily mandated fine. The state could not demand payment from a county for an imposed fine which could not be collected from a statutory violator. State ex rel. Rayl v. Hettinger County, 467 N.W.2d 98, 1991 N.D. LEXIS 53 (N.D. 1991).

DECISIONS UNDER PRIOR LAW

Payment of Fines.

It was within the power of the territorial legislature to provide that all fines, penalties, and forfeitures for any criminal offense committed within an incorporated city be paid into the city treasury to the credit of the board of education, a body corporate created by special charter to control the public schools within a city. County of Yankton v. Faulk, 46 N.W. 583, 1 Dakota 348 (1876).

Collateral References.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.

29-27-03. Judgment for imprisonment or as response to nonpayment of fine.

If a judgment is for imprisonment, initially or as response to nonpayment of a fine in accordance with section 12.1-32-05, the defendant forthwith must be committed to the custody of the proper officer and be detained by that officer until the judgment is complied with.

Source:

C. Crim. P. 1877, § 449; R.C. 1895, § 8300; R.C. 1899, § 8300; R.C. 1905, § 10109; C.L. 1913, § 10963; R.C. 1943, § 29-0703; S.L. 1975, ch. 106, § 336.

29-27-04. Judgment — By what officer executed.

When the judgment in a criminal action or proceeding under section 12.1-32-05 is imprisonment in the county jail, the judgment must be executed by the sheriff of the county. In all other cases when the sentence is imprisonment, the sheriff of the county shall deliver the defendant to the proper officer in execution of the judgment.

Source:

C. Crim. P. 1877, § 450; R.C. 1895, § 8301; R.C. 1899, § 8301; R.C. 1905, § 10110; C.L. 1913, § 10964; R.C. 1943, § 29-2704; S.L. 1975, ch. 106, § 337.

29-27-05. Judgment of imprisonment in department of corrections and rehabilitation.

If the judgment is for commitment to the legal and physical custody of the department of corrections and rehabilitation, the sheriff of the county, upon receipt of a certified copy thereof, shall take and deliver the defendant to the correctional facility designated by the department. The sheriff also shall deliver to the department a certified copy of the judgment and take from the department a receipt for the defendant and make return thereof to the court.

Source:

C. Crim. P. 1877, § 451; R.C. 1895, § 8302; R.C. 1899, § 8302; R.C. 1905, § 10111; C.L. 1913, § 10965; R.C. 1943, § 29-2705; 2005, ch. 108, § 24.

Cross-References.

For transportation of persons to penitentiary, see § 11-15-24.

29-27-06. Authority of sheriff while conveying defendant. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

29-27-07. Commitment of offenders to department of corrections and rehabilitation — Place of confinement.

  1. If a judge of the district court imposes a term of imprisonment to a state correctional facility upon conviction of a felony or a class A misdemeanor, the judge may not designate a state correctional facility in which the offender is to be confined but shall commit the offender to the legal and physical custody of the department of corrections and rehabilitation.
  2. After assuming custody of the convicted person, the department of corrections and rehabilitation may transfer the inmate from one correctional facility to another for the purposes of safety, security, discipline, medical care, or if the department determines it is in the best interest of the public, the inmate, or the department.

Source:

S.L. 1995, ch. 120, § 1; 1997, ch. 114, § 7.

CHAPTER 29-28 Appeals

29-28-01. Review proceedings by appeal — Writ of error abolished. [Repealed]

Superseded by N.D.R.App.P., Rule 1.

29-28-02. Who may appeal.

Either the defendant or the state may take an appeal as provided in this chapter.

Source:

R.C. 1943, § 29-2802.

Cross-References.

Appeal as of right to district court, or county court; how taken, see N.D.R.Crim.P., Rule 37.

Notes to Decisions

Statutory Right.

There is no right of appeal in the absence of a statute conferring such privilege. State v. Fortune, 29 N.D. 289, 150 N.W. 926, 1915 N.D. LEXIS 12 (N.D. 1915).

Collateral References.

Plea of guilty in police, magistrate, municipal, or similar inferior court as precluding appeal, 42 A.L.R.2d 995, 1014.

Right of municipal corporation to review of unfavorable decision in action or prosecution for violation of ordinance — modern status, 11 A.L.R.4th 399.

Power of state court, during same term, to increase severity of lawful sentence — modern status, 26 A.L.R.4th 905.

Power of court to increase severity of unlawful sentence — modern status, 28 A.L.R.4th 147.

Abatement of state criminal case by accused’s death pending appeal of conviction — modern cases, 80 A.L.R.4th 189.

29-28-03. Appeals are matter of right.

An appeal to the supreme court provided for in this chapter may be taken as a matter of right.

Source:

R.C. 1895, § 8326; R.C. 1899, § 8326; R.C. 1905, § 10135; C.L. 1913, § 10990; R.C. 1943, § 29-2803.

Notes to Decisions

Fugitive Dismissal Rule.

Trial court appropriately adopted the reasoning of the fugitive dismissal rule in dismissing defendant’s criminal appeal where defendant escaped from custody and was involuntarily recaptured after filing his appeal. State v. Bell, 2000 ND 58, 608 N.W.2d 232, 2000 N.D. LEXIS 44 (N.D.), cert. denied, 531 U.S. 867, 121 S. Ct. 163, 148 L. Ed. 2d 110, 2000 U.S. LEXIS 5780 (U.S. 2000).

Transcript Not Required.

In exercising his right of appeal, a defendant is not required to procure a complete transcript of testimony unless incidents of the trial upon which he predicates error cannot be made a part of the record in any other way. State v. Moore, 82 N.W.2d 217, 1957 N.D. LEXIS 114 (N.D. 1957).

Law Reviews.

Article: The Law Of Unintended Consequences: The North Dakota Supreme Court Recognizes the Right to a Jury Trial for Noncriminal Traffic Offenses in Riemers v. Eslinger, see 86 N.D. L. Rev. 505.

29-28-04. Designation of parties on appeal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 37.

29-28-05. Appeal by one of several defendants. [Repealed]

Superseded by N.D.R.App.P., Rule 3.

29-28-06. From what defendant may appeal.

An appeal may be taken by the defendant from:

  1. A verdict of guilty;
  2. A final judgment of conviction;
  3. An order refusing a motion in arrest of judgment;
  4. An order denying a motion for a new trial; or
  5. An order made after judgment affecting any substantial right of the party.

Source:

C. Crim. P. 1877, § 475; R.C. 1895, § 8328; R.C. 1899, § 8328; R.C. 1905, § 10137; C.L. 1913, § 10992; R.C. 1943, § 29-2806; S.L. 1965, ch. 229, § 1.

Notes to Decisions

Appeal from Guilty Verdict.

Where judgment of conviction has not been entered in the record, appeal may be taken from the record of the guilty verdict. State v. Jacob, 222 N.W.2d 586, 1974 N.D. LEXIS 157 (N.D. 1974).

Appeal from Justice Court.

No appeal will lie from an order of the district court dismissing an appeal from a justice court in a criminal action for jurisdictional reasons. Quarton v. O'Neil, 51 N.D. 842, 200 N.W. 1010, 1924 N.D. LEXIS 77 (N.D. 1924).

Appeal from Motion to Dismiss a Prosecution.

There is no right to appeal in this state in the absence of a statute conferring such right, and therefore, since this section does not authorize an appeal from an order denying defendant’s motion to dismiss the prosecution against him, no such appeal may be taken. State v. Johnson, 142 N.W.2d 110, 1966 N.D. LEXIS 184 (N.D. 1966).

Appeal from Municipal Court.

Criminal judgment entered after a district court held a trial anew was reviewed on appeal because it was appropriately designated an appeal, rather than a transfer. A municipal judge erroneously treated defendant's notice of appeal as a request for “transfer.” City of Napoleon v. Kuhn, 2015 ND 75, 860 N.W.2d 460, 2015 N.D. LEXIS 54 (N.D. 2015).

Appeal from Pretrial Diversion Order.

Because the matter was resolved by pretrial diversion, there was no trial, verdict, or final judgment, the order approving pretrial diversion and the order to pay restitution were not appealable orders; however, although defendant’s appeal was not authorized by statute, the supreme court could and did exercise its supervisory jurisdiction to review the orders. State v. Jorgenson, 2018 ND 169, 914 N.W.2d 485, 2018 N.D. LEXIS 161 (N.D. 2018).

Conditional Guilty Pleas.

Defendants who enter conditional guilty pleas may not appeal; the defendants have no order or judgment from which an appeal may be properly taken. State v. Schmitz, 431 N.W.2d 305, 1988 N.D. LEXIS 224 (N.D. 1988).

Counsel on Appeal.

Where indigent criminal defendant has a right to appeal as a matter of law and court appointed defense counsel believes the appeal is frivolous and without merit, the proper procedure is for the court to appoint another attorney to represent defendant on appeal as soon after the initially appointed counsel makes his opinion as to frivolity known to the court as is practical. State v. Lewis, 291 N.W.2d 735, 1980 N.D. LEXIS 236 (N.D. 1980).

When a second court-appointed counsel is appointed pursuant to the Lewis doctrine, the court-appointed counsel must fulfill the ethical duty to the client and pursue an appeal with full diligence even if the attorney feels the appeal is without merit. State v. Vondal, 1998 ND 188, 585 N.W.2d 129, 1998 N.D. LEXIS 200 (N.D. 1998).

Defendant’s constitutional right to counsel did not attach in an appellate proceeding as there was no federal or state constitutional right to appeal; thus, defendant’s right to counsel was not violated when the trial court neither informed him of his right to counsel nor appointed defendant counsel on appeal from his probation revocation and resentencing. State v. Causer, 2004 ND 75, 678 N.W.2d 552, 2004 N.D. LEXIS 171 (N.D.), cert. denied, 543 U.S. 906, 125 S. Ct. 139, 160 L. Ed. 2d 182, 2004 U.S. LEXIS 6076 (U.S. 2004).

County Court Sentence for Municipal Ordinance Violation.

There exists no statutory authority for an appeal from a sentence imposed by a county court as a result of a conviction for a municipal ordinance violation. City of Riverside v. Smuda, 339 N.W.2d 768, 1983 N.D. LEXIS 397 (N.D. 1983).

Lack of Jurisdiction.

There is no provision authorizing appeals from a denial of a defendant’s motion to dismiss the prosecution against him. The right of appeal is purely statutory in this state. Without statutory authorization to hear an appeal, a court will on its own motion take notice of the lack of jurisdiction. State v. Robideaux, 475 N.W.2d 915, 1991 N.D. LEXIS 173 (N.D. 1991).

Supreme Court dismissed defendant’s appeal on counts 1, 2, and 5, referenced in the order approving pretrial diversion, for lack of jurisdiction because the order was not appealable under N.D.C.C. § 29-28-06 and the Supreme Court declined to exercise its supervisory jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. State v. Abuhamda, 2019 ND 44, 923 N.W.2d 498, 2019 N.D. LEXIS 38 (N.D. 2019).

Memorandum Opinion.

The standard in civil cases, that the supreme court will treat an appeal from a memorandum opinion as an appeal from the order contained in the memorandum opinion where the memorandum opinion contains an order which was intended as a final order and the order is one from which an appeal may be taken pursuant to statute, should be applied in criminal cases. State v. Gelvin, 318 N.W.2d 302, 1982 N.D. LEXIS 326 (N.D.), cert. denied, 459 U.S. 987, 103 S. Ct. 341, 74 L. Ed. 2d 383, 1982 U.S. LEXIS 4231 (U.S. 1982).

Defendant’s appeal from district court’s memorandum opinion was dismissed, by the supreme court where it was clear the memorandum opinion was not intended to be the district court’s final order. State v. Tinsley, 325 N.W.2d 177, 1982 N.D. LEXIS 338 (N.D. 1982), decided prior to the enactment of N.D.C.C. chapter 29-32.1.

Motion to Suppress.

In defendant’s conviction for possession of drug paraphernalia, defendant’s attempt to appeal the denial of her motion to suppress was not authorized by N.D.C.C. § 29-28-06; the supreme court, however, treated the appeal from the suppression order as an appeal from the judgment. State v. Guscette, 2004 ND 71, 678 N.W.2d 126, 2004 N.D. LEXIS 178 (N.D. 2004).

In a drug case, defendant was able to raise an issue relating to the denial of his motion to suppress evidence because, even though the motion was not appealable by itself, it was reviewable in an appeal from the subsequently entered criminal judgment. State v. Ostby, 2014 ND 180, 853 N.W.2d 556, 2014 N.D. LEXIS 184 (N.D. 2014).

Order Affecting Any Substantial Right.

Under subdivision 5 of this section, a “substantial right” is the right to notice and the opportunity to be heard. State v. Jefferson Park Books, 314 N.W.2d 73, 1981 N.D. LEXIS 363 (N.D. 1981).

Appellant, who was subject to an injunctive order barring him from future filings without the district court's approval, failed to show a district court's order denying him leave for further filings affected a substantial right under either N.D.C.C. § 28-27-02 or § 29-28-06. The district court's order denying appellant leave to allow him further filings was not an appealable order. Everett v. State, 2017 ND 93, 892 N.W.2d 898, 2017 N.D. LEXIS 106 (N.D. 2017).

Order After Judgment Not Affecting Substantial Right.

Order made after judgment denying prisoner’s motion for court records to be sent to him did not affect prisoner’s substantial rights and was not appealable. State v. Peterson, 334 N.W.2d 483, 1983 N.D. LEXIS 284 (N.D. 1983).

Defendant’s numerous discovery motions filed with the district court eight months after his conviction were not timely and did not affect any of his substantial rights, and, thus, denial of these motions was not appealable, as defendant’s appeal did not fall within any of the subsections of N.D.C.C. § 29-28-06. State v. Moore, 2003 ND 83, 662 N.W.2d 263, 2003 N.D. LEXIS 93 (N.D.), cert. denied, 540 U.S. 906, 124 S. Ct. 268, 157 L. Ed. 2d 192, 2003 U.S. LEXIS 6452 (U.S. 2003).

Order Changing Venue.

An order by the district court changing the venue in a criminal action is not appealable. State v. Fortune, 29 N.D. 289, 150 N.W. 926, 1915 N.D. LEXIS 12 (N.D. 1915).

An order changing the venue in a criminal action is not appealable, but it may be reviewed on appeal from the judgment. State v. Duffy, 65 N.D. 671, 261 N.W. 661, 1935 N.D. LEXIS 154 (N.D. 1935).

Order Constituting Revocation of Sentence As Appealable.

Where a commitment order pursuant to N.D.C.C. § 40-11-12 constituted revocation of a sentence which had been suspended conditioned upon payment of a fine, the order was appealable under the provisions of this section. City of Kenmare v. Murray, 404 N.W.2d 513, 1987 N.D. LEXIS 309 (N.D. 1987).

Order Deferring Imposition of Judgment and Sentence.

An order deferring imposition of judgment and sentence is not appealable; however, it is reviewable upon appeal from a verdict or judgment. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

Trial court’s modification of an order deferring imposition of defendant’s sentence was appealable because (1) the modification maintained defendant’s guilty plea, imposed sentence, and was a judgment of conviction, and (2) the order affected defendant’s substantial rights. State v. Overholt, 2019 ND 173, 930 N.W.2d 185, 2019 N.D. LEXIS 178 (N.D. 2019).

Order Denying Closure of Pretrial Proceedings.

Defendant had no right to appeal from an interlocutory order denying a closure of pretrial proceedings. State v. La Fontaine, 293 N.W.2d 426, 1980 N.D. LEXIS 244 (N.D. 1980).

Order Denying Correction of Illegal Sentence.

An order denying correction of a sentence claimed to be illegal under N.D.R.Crim.P., Rule 35(a) is appealable under subsection 5 of this section. State v. Nace, 371 N.W.2d 129, 1985 N.D. LEXIS 351 (N.D. 1985), decided prior to the enactment of N.D.C.C. section 12.1-32-06.1.

An order denying correction of a sentence claimed to be illegal is appealable under this section. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Order Denying Motion for Judgment of Acquittal.

An order denying a motion for judgment of acquittal is not appealable per se, but is reviewable as an issue if an appeal is taken from the judgment of conviction or a verdict. State v. Jenkins, 339 N.W.2d 567, 1983 N.D. LEXIS 404 (N.D. 1983).

Order Denying Reduction in Sentence.

Order denying defendant’s motion under N.D.R.Crim.P., Rule 35 for a reduction in sentence was not appealable under this section. State v. Jefferson Park Books, 314 N.W.2d 73, 1981 N.D. LEXIS 363 (N.D. 1981).

Order “Made After Judgment.”

Municipal court’s order denying defendant’s motion requesting a trial and the county court order dismissing his appeal constituted orders “made after judgment” affecting defendant’s substantial right to a jury trial and were thus appealable under subsection 5 of this section. City of Minot v. Mattern, 449 N.W.2d 560, 1989 N.D. LEXIS 248 (N.D. 1989).

Order Revoking Suspended Sentence.

Under subdivision 5 of this section, an order revoking a suspended sentence is appealable. State v. Lesmeister, 288 N.W.2d 57, 1980 N.D. LEXIS 220 (N.D. 1980).

Order Substituting Counsel.

A trial court’s order which vacated an earlier order substituting counsel and reappointed prior counsel as defendant’s attorney, was not appealable, although, in the absence of fraud or other similar circumstances, the interest and appearance of justice are ordinarily better served if the trial court abides by its decision rather than summarily reversing its prior order granting a request to substitute counsel. State v. Robertson, 502 N.W.2d 249, 1993 N.D. LEXIS 140 (N.D. 1993).

Order Suspending Imposition of Sentence.

Order suspending imposition of sentence, where no separate judgment of conviction was entered, complied with the requirements of N.D.R.Crim.P., Rule 32(b) for criminal judgments, and therefore served as judgment of conviction; thus, the appeal was properly before the Supreme Court. State v. Trosen, 547 N.W.2d 735, 1996 N.D. LEXIS 138 (N.D. 1996).

Pretrial Review.
—Certification of Factual Issues.

North Dakota has no method for certification of factual issues for appellate review prior to a criminal trial. State v. Lefthand, 523 N.W.2d 63, 1994 N.D. LEXIS 227 (N.D. 1994).

Right to Appeal.

Defendant has a right to appeal as a matter of law a verdict of guilty and judgment of conviction for robbery. State v. Lewis, 291 N.W.2d 735, 1980 N.D. LEXIS 236 (N.D. 1980).

This section does not include a right to appeal from an order dismissing the complaint, and there is no right of appeal in the absence of a statute conferring such right. State v. Yagow, 423 N.W.2d 804, 1988 N.D. LEXIS 129 (N.D. 1988).

Because North Dakota law does not authorize a third-person surety to appeal a bail bond forfeiture order, the Supreme Court concluded that defendant's father could not appeal from the bond forfeiture order and that the Supreme Court lacked jurisdiction over the appeal. State v. Brendel, 2016 ND 230, 887 N.W.2d 316, 2016 N.D. LEXIS 228 (N.D. 2016).

Rule 4(b) of Appellate Rules of Procedure.

Rule 4(b) of the North Dakota Appellate Rules of Procedure does not permit criminal appeals that are not allowed by this section. State v. La Fontaine, 293 N.W.2d 426, 1980 N.D. LEXIS 244 (N.D. 1980).

DECISIONS UNDER PRIOR LAW

Contempt Proceeding.

Contempt proceeding was reviewable by writ of error. State v. Markuson, 5 N.D. 147, 64 N.W. 934, 1895 N.D. LEXIS 22 (N.D. 1895).

Order Suspending Imposition of Sentence.

An order suspending the imposition of sentence pursuant to former section 12-53-13 is not a final judgment and may not be appealed. State v. Carroll, 123 N.W.2d 659, 1963 N.D. LEXIS 112 (N.D. 1963).

Collateral References.

Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

29-28-07. From what the state may appeal.

An appeal may be taken by the state from:

  1. An order quashing an information or indictment or any count thereof.
  2. An order granting a new trial.
  3. An order arresting judgment.
  4. An order made after judgment affecting any substantial right of the state.
  5. An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the notice of appeal.

Source:

C. Crim. P. 1877, § 476; R.C. 1895, § 8329; R.C. 1899, § 8329; R.C. 1905, § 10138; C.L. 1913, § 10993; R.C. 1943, § 29-2807; S.L. 1977, ch. 294, § 1; 1985, ch. 363, § 1; 2015, ch. 238, § 1, effective August 1, 2015.

Note.

Motions to quash were abolished in N.D.R.Crim.P., Rule 12.

Notes to Decisions

Acquittal of Defendant.

Where trial court stated in the judgment, which it labeled as “Judgment of Acquittal”, that the evidence having been submitted and the court having rendered its verdict thereon, there existed a reasonable doubt as to defendant’s guilt requiring the charge against the defendant to be dismissed, judgment constituted an acquittal from which the state had no right to an appeal. State v. Flohr, 259 N.W.2d 293, 1977 N.D. LEXIS 214 (N.D. 1977).

There can be no appeal from a true judgment of acquittal. There can, however, be appeal from “[a]n order quashing an information or indictment or any count thereof.” City of Dickinson v. Kraft, 472 N.W.2d 441, 1991 N.D. LEXIS 127 (N.D. 1991).

Where the judgment of acquittal was based upon a lack of evidence as to a factual element of the crime of driving under the influence, i.e., proof that defendant had a blood-alcohol concentration of one tenth of one hundredth percent or more within two hours of operation or control of a vehicle, the order for dismissal was based upon factual elements, which was not appealed under this section. State v. Meyer, 494 N.W.2d 364, 1992 N.D. LEXIS 247 (N.D. 1992).

Jurisdiction of court.

Because the State of North Dakota lacked the ability to realistically appeal the district court’s orders denying a motion to amend the charge against defendant or the order denying a plea agreement, the Supreme Court of North Dakota concluded that the matter was an appropriate circumstance to consider exercising the court’s supervisory jurisdiction and considered the issues raised by the State on the merits. State v. Louser, 2021 ND 89, 959 N.W.2d 883, 2021 N.D. LEXIS 92 (N.D. 2021).

Reduction in sentence.

Supreme Court of North Dakota exercised jurisdiction over the State of North Dakota’s appeal when a district court ordered a reduction in a criminal sentence because the State could appeal as the district court’s reduction of the sentence affected a substantial right of the State. State v. Neilan, 2021 ND 217, 967 N.W.2d 765, 2021 N.D. LEXIS 224 (N.D. 2021).

Advised Verdict.

The state has no right of appeal where, in a prosecution for unlawful possession of intoxicating liquor, the court advised a verdict, and a verdict of acquittal was returned, and a judgment of acquittal was entered, and defendant’s bondsmen were exonerated, and the defendant was discharged. State v. Kelsey, 49 N.D. 148, 190 N.W. 817, 1922 N.D. LEXIS 29 (N.D. 1922).

Where the trial court advises a verdict, and the defendant is acquitted and cash bail is delivered to him and he is discharged, the state has no right of appeal. State v. Burdo, 54 N.D. 47, 209 N.W. 657, 1926 N.D. LEXIS 110 (N.D. 1926).

Confession.

A defendant’s confession was substantial proof of fact which was material to the proceedings. State v. Murray, 510 N.W.2d 107, 1994 N.D. LEXIS 4 (N.D. 1994).

Dismissal of Complaint, Information or Indictment.

The state may appeal from an order, made at the close of the state’s case, dismissing the information. State v. Allesi, 211 N.W.2d 733, 1973 N.D. LEXIS 120 (N.D. 1973).

Not only an order entered pursuant to the procedural device of a motion to quash, but any order which has the effect of quashing an information is appealable under subdivision 1 of this section; thus, dismissal of an action for insufficiency of evidence is appealable because its effect is to annul the information. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Order dismissing complaint has effect of quashing it, and is appealable under subsection 1 of this section. State v. Jelliff, 251 N.W.2d 1, 1977 N.D. LEXIS 235 (N.D. 1977).

A motion to dismiss a complaint is equivalent to a motion to quash an information, regardless of the court in which the complaint was originally filed. State v. Hanson, 252 N.W.2d 872 (N.D. 1977), decided under former N.D.C.C. § 33-12-40.

A motion to quash an information and a motion to dismiss an information are substantially equivalent, and an order which on its face, without more, has effect of quashing an information is appealable by state. State v. O'Boyle, 356 N.W.2d 122, 1984 N.D. LEXIS 392 (N.D. 1984).

An order of the district court dismissing a criminal complaint was an appealable order. State v. Swanson, 407 N.W.2d 204, 1987 N.D. LEXIS 325 (N.D. 1987).

The trial court’s dismissal of a complaint charging the defendants with violating the compulsory school-attendance law was appealable by the state under subsection 1 of this section, where the trial dismissed, the complaint because it found the compulsory school-attendance law unconstitutional. State v. Melin, 428 N.W.2d 227, 1988 N.D. LEXIS 175 (N.D.), cert. denied, 488 U.S. 942, 109 S. Ct. 367, 102 L. Ed. 2d 357, 1988 U.S. LEXIS 5035 (U.S. 1988).

A city has a right to appeal pursuant to this section when the complaint alleges conduct violative of a city ordinance which is also expressly prohibited by state statute. City of Bismarck v. Hoopman, 421 N.W.2d 466, 1988 N.D. LEXIS 85 (N.D. 1988).

Where, although labeled a judgment of acquittal, the trial court’s order did not constitute an acquittal, but was, instead, an order which had the effect of quashing an information, the order was appealable by the state under subsection 1. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

This section does not authorize the state to appeal from an acquittal, but the state may appeal from a dismissal of an information or other order, regardless of its label, that has the same effect as an order quashing an information. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

An order dismissing a criminal complaint has the same effect as an order quashing an information for the purposes of appealability, and can therefore be appealed by the city pursuant to this section. City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 1990 N.D. LEXIS 136 (N.D. 1990).

When a dismissal is based upon legal conclusions, rather than the resolution of some or all of the factual elements of the offense charged, the dismissal is equivalent to an order quashing an information and is, therefore, appealable by the state. State v. Bettenhausen, 460 N.W.2d 394, 1990 N.D. LEXIS 179 (N.D. 1990).

The state may appeal from an order quashing an information or indictment or any count thereof. This includes the right to appeal from a dismissal, regardless of its label, that has the same effect as an order quashing an information. State v. Thill, 468 N.W.2d 643, 1991 N.D. LEXIS 71 (N.D. 1991).

Appeal of an order dismissing complaint which emanated from a pretrial conference, and which disposed of defendant’s motion at a stage in the proceedings before the trier of fact commenced to take evidence, was not barred by the Double Jeopardy Clause. State v. Hammond, 498 N.W.2d 126, 1993 N.D. LEXIS 53 (N.D. 1993).

The State has the right to appeal from an order of dismissal that has the same effect as an order quashing an information. State v. DuPaul, 509 N.W.2d 266, 1993 N.D. LEXIS 232 (N.D. 1993).

While court unification eliminated county courts, this section still allows the State to appeal an order dismissing a complaint. State v. Serr, 1998 ND 66, 575 N.W.2d 896, 1998 N.D. LEXIS 64 (N.D. 1998).

The State’s authority to appeal an order quashing an indictment or information includes appeals from orders of dismissal that have the same effect as orders quashing an information. City of Jamestown v. Snellman, 1998 ND 200, 586 N.W.2d 494, 1998 N.D. LEXIS 213 (N.D. 1998).

District court’s order dismissing criminal complaints because city was not ready to proceed was appealable. City of Jamestown v. Snellman, 1998 ND 200, 586 N.W.2d 494, 1998 N.D. LEXIS 213 (N.D. 1998).

An order dismissing a complaint, information, indictment, or any count with or without prejudice is appealable under subsection (1). State v. Gwyther, 1999 ND 15, 589 N.W.2d 575, 1999 N.D. LEXIS 17 (N.D. 1999).

Trial court’s decision quashing the criminal information against defendant for failing to register as a convicted sexual offender was based upon its legal interpretation of N.D.C.C. § 12.1-32-15 and not upon the resolution of any factual element of the crime charged, therefore the trial court’s ruling was not a judgment of acquittal, but a quashing of the information from which the State had a right to appeal under N.D.C.C. § 29-28-07(1). State v. Jackson, 2005 ND 137, 701 N.W.2d 887, 2005 N.D. LEXIS 180 (N.D. 2005).

Appeal was dismissed because the State was unable to challenge the dismissal of its cases under N.D.C.C. § 29-28-07(1) where it was the party seeking the dismissal after the suppression of evidence in a drug case; the ruling on the motion to suppress was not heard either since it was then moot. State v. Grager, 2006 ND 102, 713 N.W.2d 531, 2006 N.D. LEXIS 109 (N.D. 2006).

District court’s decision was a legal conclusion concerning whether it could take judicial notice of the ordinance prohibiting the offense charged; therefore, the order was treated as an order quashing an information, giving the city the right to appeal. City of Bismarck v. McCormick, 2012 ND 53, 813 N.W.2d 599, 2012 N.D. LEXIS 55 (N.D. 2012).

District court erred in dismissing the felony theft of property count for lack of probable cause because, at the preliminary hearing, the State needed to establish that someone other than defendant had an interest in the property which defendant was not privileged to infringe without consent; the State did not need to have the victim testify as probable cause could be based on hearsay and other evidence that would be inadmissible at trial; a deputy testified that the victim told him that she owned the vehicles and defendant did not have permission to take them; the vehicle was property of the victim; and, even if defendant had a marital property interest in the vehicle, that interest did not prevent him from being prosecuted for theft. State v. Gratton, 2020 ND 41, 938 N.W.2d 902, 2020 N.D. LEXIS 37 (N.D. 2020).

Dismissal of Complaint in Justice Court.

Order dismissing complaint originally filed in county justice court was not one from which state might appeal. State v. Bauer, 153 N.W.2d 895, 1967 N.D. LEXIS 105 (N.D. 1967), decided prior to the adoption of N.D.R.Crim.P., Rule 37.

Double Jeopardy.

Where the trial court’s decision was based upon the legal conclusion that theft of an automobile could only be charged as a class C felony and not as a class B felony, there was no resolution of factual elements of the offense of theft, and defendant successfully avoided submission of his factual guilt or innocence to the jury; he was, therefore, not acquitted and suffered no injury cognizable under the double jeopardy clause when the state was permitted to appeal. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

Exclusion of Evidence.

The trial court’s exclusion of evidence of a prior conviction does not amount to an order “quashing” an information. City of Fargo v. Cossette, 512 N.W.2d 459, 1994 N.D. LEXIS 45 (N.D. 1994).

Forfeiture.

In a forfeiture case, the State had a statutory right to appeal a district court's order because this statute allowed the State to appeal an order granting the return of property; moreover, the State properly appealed because the State Attorney's statement satisfied both prongs of this statute, asserting the purpose of the appeal was not to delay and the property was substantial proof of a fact material in a criminal proceeding. State v. Horning, 2016 ND 10, 873 N.W.2d 920, 2016 N.D. LEXIS 10 (N.D. 2016).

Illegal Sentence.

The State may appeal from an order granting a motion for correction of an illegal sentence. State v. Vavrosky, 442 N.W.2d 433, 1989 N.D. LEXIS 133 (N.D. 1989).

A trial court’s order denying the State’s motion to correct an illegal sentence affects a substantial right of the State, and is appealable. State v. Wika, 1998 ND 33, 574 N.W.2d 831, 1998 N.D. LEXIS 35 (N.D. 1998).

Jurisdiction of Court.

This section authorized state to appeal issue whether trial court had jurisdiction to grant parole on the basis that an order issued by a court allegedly having no jurisdiction to act in the matter is one which affects the substantial rights of the state. State v. Hunt, 293 N.W.2d 419, 1980 N.D. LEXIS 243 (N.D. 1980).

Dismissal of an appeal by the State of North Dakota from a district court order denying the State’s pretrial motion to allow the introduction of evidence at a jury trial about defendant’s refusal to submit to an on-site screening test for intoxication was appropriate because the appeal was not authorized as the appeal was not from an order granting defendant’s motion to suppress, or from an order granting defendant’s motion for the return of evidence. State v. Corona, 2018 ND 196, 916 N.W.2d 610, 2018 N.D. LEXIS 206 (N.D. 2018).

Memorandum Opinion.

The standard in civil cases, that the supreme court will treat an appeal from a memorandum opinion as an appeal from the order contained in the memorandum opinion where the memorandum opinion contains an order which was intended as a final order and the order is one from which an appeal may be taken pursuant to statute, should be applied in criminal cases. State v. Gelvin, 318 N.W.2d 302, 1982 N.D. LEXIS 326 (N.D.), cert. denied, 459 U.S. 987, 103 S. Ct. 341, 74 L. Ed. 2d 383, 1982 U.S. LEXIS 4231 (U.S. 1982).

Although state’s notice of appeal stated that appeal was taken from district court’s memorandum opinion rather than subsequently entered order dismissing information, appeal was treated as an appeal from order of dismissal where memorandum opinion itself contained a final order of dismissal which had effect of quashing information. State v. O'Boyle, 356 N.W.2d 122, 1984 N.D. LEXIS 392 (N.D. 1984).

Motion to Compel Testimony.

Appeal by the state of a district court order which denied in part its motion to compel wife to testify in a criminal proceeding against her husband was not authorized by this section. State v. Counts, 472 N.W.2d 756, 1991 N.D. LEXIS 142 (N.D. 1991).

No Order Quashing Information.

State was not authorized to appeal the order of dismissal because the written order of dismissal and the trial court’s oral statements at sentencing, together, proved the order of dismissal resolved factual elements of the offense charged and thus, N.D.C.C. § 29-28-07(1) was not applicable. However, the court considered the State’s attempt at an appeal to be a petition for a supervisory writ. State v. Deutscher, 2009 ND 98, 766 N.W.2d 442, 2009 N.D. LEXIS 104 (N.D. 2009).

Oral Ruling on Motion.

An oral ruling on a motion is not an appealable order; however, where a signed written order and a judgment consistent with the oral ruling were subsequently entered, the state’s appeal was treated as an appeal from the judgment. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

Order for Return of Seized Property.

Trial court’s order, made and entered after defendant’s conviction, requiring return to defendant money seized as profits from illegal drug sales was appealable by state under subsection 4 of this section as being an order made after judgment affecting any substantial right of state; and such appeal was not subject to dismissal because of state’s failure to file statement required under subsection 5. State v. Ronngren, 356 N.W.2d 903, 1984 N.D. LEXIS 415 (N.D. 1984).

Order Modifying Sentence.

An order modifying a sentence previously imposed is a postjudgment order, since under N.D.R.Crim.P., Rule 32, a judgment consists of the plea, the verdict, and the adjudication of sentence; where defendant was convicted of taking indecent liberties with a minor child and sentenced to three years imprisonment, trial court’s grant, four months later, of his motion to modify sentence to five years probation was an “order made after judgment affecting [a] substantial right of the state”, and was therefore appealable under subsection 4 of this section. State v. Rueb, 249 N.W.2d 506, 1976 N.D. LEXIS 182 (N.D. 1976).

Restitution Order.

State had no statutory right to appeal a restitution order in a criminal case because, although an order for restitution affected with finality the State’s ability to obtain recompense for a crime victim, the victim could seek recovery of damages independent from any action by the State in a civil action to recover other or additional damages suffered as a result of the crime; and the right of restitution would not be undermined or lost without appellate review as the victim could maintain a civil action seeking recovery of damages. State v. Conry, 2020 ND 247, 951 N.W.2d 226, 2020 N.D. LEXIS 237 (N.D. 2020).

Statement Accompanying Notice of Appeal.
—Generally.

Where the State filed a notice of appeal prior to the time when an appealable order was in existence, and the notice of appeal contained an acknowledgement that it would not be deemed as filed until a written order was entered, since all the documents required by subsection 5 of this section were waiting for the written order when it was entered, the State met the requirements to appeal. State v. Murray, 510 N.W.2d 107, 1994 N.D. LEXIS 4 (N.D. 1994).

—“Fact Material.”

Evidence that is substantial proof of a fact material is evidence that would significantly assist the factfinder’s evaluation of a fact relevant to the outcome of the case. State v. Schindele, 540 N.W.2d 139, 1995 N.D. LEXIS 208 (N.D. 1995).

Cumulative testimony does not offer substantial proof of a fact material as required by subsection (5). State v. Schindele, 540 N.W.2d 139, 1995 N.D. LEXIS 208 (N.D. 1995).

—Failure to File Prosecutor’s Statement with Notice of Appeal.

Although supreme court declined to make the filing of the prosecutor’s statement a jurisdictional rather than a procedural requirement, the state’s appeal was dismissed, where the prosecutor’s statement was not filed with the notice of appeal. State v. Freed, 340 N.W.2d 172, 1983 N.D. LEXIS 407 (N.D. 1983).

Where the State failed to file a statement by the prosecuting attorney along with its notice of appeal of a suppression order, the court denied the State’s motion to then file a later statement and dismissed its appeal holding that accepting the State’s tardy statement would thwart the statutory purpose of requiring the State’s prosecutors to “make a good-faith evaluation of its case before it appeals”. State v. Norton, 2000 ND 153, 615 N.W.2d 531, 2000 N.D. LEXIS 166 (N.D. 2000).

City failed to comply with the requirements of this statute where the affidavit filed by the prosecutor in support of the City’s motion for continuance failed to address both of the two prongs required by this section for an appeal and failed to outline the specific relevance of and need for the evidence which was suppressed. City of Harvey v. Fettig, 2001 ND 12, 621 N.W.2d 324, 2001 N.D. LEXIS 6 (N.D. 2001).

Statutory Right.

Right of state to appeal in a criminal case is limited to those instances provided by statute. State v. McEnroe, 69 N.D. 445, 287 N.W. 817, 1939 N.D. LEXIS 170 (N.D. 1939).

Supreme Court of North Dakota lacked jurisdiction to consider the State’s appeal of the district court’s orders limiting the admission of video evidence and denying the State’s motion to amend the criminal information because the State had no statutory right to appeal the issues where the State made no argument that the case raised issues of vital concern regarding matters of important public interest or why the case was extraordinary, nothing required the court to amend an information, and a possible error by the court did not require supervision. State v. Powley, 2019 ND 51, 923 N.W.2d 123, 2019 N.D. LEXIS 37 (N.D. 2019).

Suppression of Evidence.
—Generally.

Where district court issued a memorandum opinion granting defendant’s motion to suppress evidence, and it was clear from the circumstances that the district court intended the memorandum opinion to have the effect of a final order, supreme court treated state’s appeal from the memorandum opinion as an appeal from the order contained in the memorandum opinion suppressing the evidence. State v. Gelvin, 318 N.W.2d 302, 1982 N.D. LEXIS 326 (N.D.), cert. denied, 459 U.S. 987, 103 S. Ct. 341, 74 L. Ed. 2d 383, 1982 U.S. LEXIS 4231 (U.S. 1982).

This section does not require state to dismiss pending charge or otherwise discontinue further prosecution when supreme court affirms order suppressing evidence on appeal taken by state. State v. Anderson, 353 N.W.2d 324, 1984 N.D. LEXIS 368 (N.D. 1984).

North Dakota Century Code authorizes a city to appeal an order granting the suppression of evidence if the appeal is not for the purpose of delay, and the evidence is a substantial proof of a material fact in the case. City of W. Fargo v. Ross, 2001 ND 163, 634 N.W.2d 527, 2001 N.D. LEXIS 175 (N.D. 2001).

Where the district court granted defendant’s motion to suppress evidence and the State referenced N.D.C.C. § 29-28-07(5) and both prongs of the statute in its notice of appeal, while the State failed to outline the specific relevance of the evidence which was suppressed, a review of the facts clearly demonstrated the relevance of the evidence suppressed and, therefore, the State’s appeal was allowed to proceed. State v. Gay, 2008 ND 84, 748 N.W.2d 408, 2008 N.D. LEXIS 96 (N.D. 2008).

State’s appeal was dismissed because the State failed to file sufficient prosecutor’s statements under N.D.C.C. § 29-28-07(5); the prosecutor did not explain the relevance of the suppressed evidence, and such relevance was not clear from the record. State v. Emil, 2010 ND 117, 784 N.W.2d 137, 2010 N.D. LEXIS 126 (N.D. 2010).

State’s appeal of an order granting defendant’s motion to suppress evidence from a traffic stop was heard because (1) the prosecutor’s statements justifying the appeal did not merely paraphrase N.D.C.C. § 29-28-07(5), (2) the prosecutor adequately explained why the suppressed evidence was relevant, and (3) such relevance was apparent from the record. State v. Rahier, 2014 ND 153, 849 N.W.2d 212, 2014 N.D. LEXIS 154 (N.D. 2014).

State was allowed to appeal from a district court’s order granting defendant’s motion to suppress blood test results. The prosecuting attorney’s statements were more than simply paraphrasing the requirements of N.D.C.C. § 29-28-07(5) and provided adequate explanation of the relevance of the suppressed evidence. State v. Boehm, 2014 ND 154, 849 N.W.2d 239, 2014 N.D. LEXIS 158 (N.D. 2014).

—Applicable Rules.

Appeals by the state pursuant to subsection (5) of this section are limited to appeals from the granting of a motion to suppress under N.D.R.Crim.P., Rule 12(b)(3), and from the granting of a motion to return evidence under N.D.R.Crim.P., Rule 41(e). State v. Counts, 472 N.W.2d 756, 1991 N.D. LEXIS 142 (N.D. 1991).

—Relevance of Evidence Suppressed.

State’s appeal was timely under N.D. R. App. P. 4(b); although the prosecutor’s statement accompanying the notice of appeal merely parroted the language of N.D.C.C. § 29-28-07(5), the appeal was properly before the court because a review of the facts clearly demonstrated the relevance of the evidence suppressed and the court had jurisdiction under N.D. Const. art. VI, §§ 2 and 6 and N.D.C.C. § 29-28-07. State v. Beane, 2009 ND 146, 770 N.W.2d 283, 2009 N.D. LEXIS 155 (N.D. 2009).

Prosecuting attorney’s statement in support of an appeal of the order granting defendant’s motion to suppress did not satisfy the requirements of N.D.C.C. § 29-28-07(5), because it did not explain the need for the suppressed evidence; the State could proceed with the charge of possession of drug paraphernalia using the non-suppressed evidence. State v. Peterson, 2011 ND 109, 799 N.W.2d 67, 2011 N.D. LEXIS 116 (N.D. 2011).

—Standard of Review.

Under this section the state is authorized to bring an appeal from an order granting suppression, and the suppression is upheld unless there is insufficient competent evidence to support the decision, or it is determined that the decision goes against the manifest weight of the evidence. State v. Kenner, 1997 ND 1, 559 N.W.2d 538, 1997 N.D. LEXIS 7 (N.D. 1997).

—Suppression of Blood Test.

Where the trial court excluded parts of a blood test on the ground that defendant was deprived of the opportunity to cross-examine the expert who conducted the test and not on the ground that the evidence was “illegally obtained,” the state’s appeal was not authorized by subsection 5 of this section. State v. Simon, 510 N.W.2d 635, 1994 N.D. LEXIS 20 (N.D. 1994).

Where the trial court excluded the result of the blood test under N.D.R.Ev. 402 and 403, upon what was essentially a pretrial motion in limine to preclude the State from introducing the results of the blood alcohol test into evidence, the State’s appeal was not authorized by subsection 5 of this section. State v. Miller, 512 N.W.2d 469, 1994 N.D. LEXIS 38 (N.D. 1994).

The city may not appeal from the suppression of the blood test results. City of Fargo v. Casper, 512 N.W.2d 668, 1994 N.D. LEXIS 52 (N.D. 1994).

District court erred in granting defendant's motion to suppress because it did not indicate that it reviewed the patrol car video or considered any other findings in its determination of involuntary consent where the State complied with the statutory requirements, a review of the facts clearly demonstrated the relevance of the suppressed evidence, the implied consent advisory read to defendant did not indicate that refusing the test was a crime. State v. Fleckenstein, 2018 ND 52, 907 N.W.2d 365, 2018 N.D. LEXIS 62 (N.D. 2018).

State’s appeal of a grant of defendant’s motion to suppress was dismissed because the motion was a motion in limine based on evidentiary grounds, and the State did not have statutory authority to appeal from an in limine order excluding evidence based on the physician-patient privilege. State v. Grzadzieleski, 2019 ND 254, 934 N.W.2d 864, 2019 N.D. LEXIS 258 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Motion to Quash Complaint.

Because of uniformity of practice and procedure, under section 27-08-24, in criminal actions in district courts and in county courts of increased jurisdiction and because there was no real distinction between criminal information and criminal complaint, motion to quash, based on former section 29-14-04 [now N.D.R.Crim.P., Rule 12] having reference to criminal informations, was available and could be employed in county court of increased jurisdiction to test jurisdictional and legal sufficiency of criminal complaint; thus, order granting motion to quash complaint was appealable. State v. Hart, 162 N.W.2d 499, 1968 N.D. LEXIS 75 (N.D. 1968).

City, under subsection 1, could appeal from district court order quashing complaint charging violation of an ordinance prohibiting an act also prohibited by statute. City of Minot v. Knudson, 184 N.W.2d 58, 1971 N.D. LEXIS 159 (N.D. 1971).

Under former laws, an order setting aside an indictment could not be appealed by the state. State ex rel. Shafer v. District Court of Third Judicial Dist., 49 N.D. 1127, 194 N.W. 745, 1923 N.D. LEXIS 55 (N.D. 1923).

Motion to Set Aside Information.

An order setting aside an information pursuant to statute was not appealable by the state. State v. McEnroe, 69 N.D. 445, 287 N.W. 817, 1939 N.D. LEXIS 170 (N.D. 1939).

Suppression of Evidence.

—Statement of Prosecutor.

When the state appeals from an order suppressing evidence, the prosecuting attorney should, in addition to the statement prescribed by subsection 5 of this section, provide supreme court with an explanation, not inconsistent with the record, stating the reasons why the trial court’s order has effectively destroyed any possibility of prosecuting the criminal charge to a conviction; prosecutor’s explanation of why the suppressed evidence is essential to the state’s case need not be, although it may be, based upon the record, and it should be included either with the statement prescribed by this section, or in the state’s brief filed for purposes of the appeal. State v. Dilger, 322 N.W.2d 461, 1982 N.D. LEXIS 317 (N.D. 1982).

Mere recitation of the statutory language of subsection 5 of this section in the required prosecutor’s statement does not give the state an automatic right to appeal an order suppressing evidence; such a mere recitation does not satisfy state’s burden of establishing that the order suppressing evidence has rendered the proof available to the state, with respect to the criminal chargee, so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed. State v. Dilger, 322 N.W.2d 461, 1982 N.D. LEXIS 317 (N.D. 1982).

When state appeals from an order suppressing evidence, supreme court’s review of the sufficiency of prosecutor’s statement filed pursuant to subsection 5 of this section is guided by the utmost deference for the prosecutor’s judgment in evaluating the remaining proof; there is reluctance to dismiss state’s appeal unless the prosecution’s determination of the need for the suppressed evidence is clearly inconsistent with the record or is without foundation in reason or logic. State v. Dilger, 322 N.W.2d 461, 1982 N.D. LEXIS 317 (N.D. 1982).

State’s appeal from order suppressing evidence will not be dismissed, unless the prosecutor’s determination of the need for the suppressed evidence is clearly inconsistent with the record or is without foundation in reason or logic. State v. Anderson, 336 N.W.2d 634, 1983 N.D. LEXIS 389 (N.D. 1983).

In a driving while under the influence prosecution, state marginally established its ground for appeal from order suppressing the result of a blood-alcohol test where the only remaining evidence was that of a witness who observed the defendant in a hospital emergency room after the auto accident and the arresting officer testified that he did not discover any alcohol in defendant’s car and that he lacked the opportunity to observe the defendant immediately after the accident; however, supreme court emphasized that the suppression of blood-alcohol test result alone does not automatically establish a ground for appeal under this section because the state, without the admission of the test result, can establish that a defendant was driving while intoxicated. State v. Frank, 350 N.W.2d 596, 1984 N.D. LEXIS 320 (N.D. 1984).

In appealing an order suppressing evidence, prosecutor’s statement need not be based on the record, but may include other evidence in order to establish that further prosecution without the suppressed evidence would be futile, not just somewhat more difficult. State v. Frank, 350 N.W.2d 596, 1984 N.D. LEXIS 320 (N.D. 1984).

In appeal from order suppressing chemical test results in a DWI case, prosecutor’s assertion that the evidence, in the absence of the suppressed chemical test results, was insufficient because it was “subjective” was insufficient to establish supreme court’s jurisdiction, and the appeal was dismissed. State v. Gawryluk, 351 N.W.2d 94, 1984 N.D. LEXIS 325 (N.D. 1984).

On appeal of an order suppressing evidence, prosecuting attorney may satisfy requirement of explaining reasons for appeal by filing a statement that explains reasons for appeal or by filing a terse statement and providing explanation in a brief; both procedures satisfy requirements of subsection 5 of this section. State v. Kisse, 351 N.W.2d 97, 1984 N.D. LEXIS 327 (N.D. 1984).

State’s appeal from order suppressing results of a breathalyzer test was dismissed, where suppression order did not necessarily determine outcome of case as there was sufficient evidence to sustain a conviction of driving while under influence without test results. State v. Kisse, 351 N.W.2d 97, 1984 N.D. LEXIS 327 (N.D. 1984).

On appeal of trial court’s order suppressing evidence, requirement that state provide an explanation as to why suppressed evidence is essential to case was satisfied where state provided such explanation in a reply brief rather than with prosecutor’s statement required by this section or in state’s initial brief. State v. Rambousek, 358 N.W.2d 223, 1984 N.D. LEXIS 428 (N.D. 1984).

State’s attempt to include required prosecutor’s statement in an amended notice of appeal filed after time for taking an appeal had expired did not satisfy requirement of this section that a copy of statement accompany notice of appeal. State v. Grant, 361 N.W.2d 243, 1985 N.D. LEXIS 245 (N.D. 1985).

The words “an order . . . suppressing evidence” relate to a decision by a lower court granting a motion to suppress evidence pursuant to N.D.R.Crim.P., Rule 12. State v. Miller, 391 N.W.2d 151, 1986 N.D. LEXIS 362 (N.D. 1986).

Appeals by the state pursuant to subsection 5 of this section are limited to appeals from the granting of a motion to suppress under N.D.R.Crim.P., Rule 12(b)(3), and from the granting of a motion to return evidence under N.D.R.Crim.P., Rule 41(e). State v. Miller, 391 N.W.2d 151, 1986 N.D. LEXIS 362 (N.D. 1986).

State’s explanation why the court’s order suppressing evidence rendered the available proof insufficient as a matter of law may be provided in the state’s brief filed for the purposes of the appeal. State v. Thompson, 369 N.W.2d 363, 1985 N.D. LEXIS 330 (N.D. 1985).

Assertion of the state in its brief that since the state’s entire case was based on the evidence in question, the judge’s ruling suppressing same left the state without a case at all constituted an adequate explanation of the state’s reasons for appeal in light of the nature and circumstances of the case and the necessary reliance placed by the prosecution upon evidence obtained in execution of the search warrant. State v. Thompson, 369 N.W.2d 363, 1985 N.D. LEXIS 330 (N.D. 1985).

When the state appeals from a suppression order, it has the burden to establish that further prosecution without the suppressed evidence would be futile and not merely more difficult. State v. Allery, 371 N.W.2d 133, 1985 N.D. LEXIS 355 (N.D. 1985).

Subsection 5 of this section was amended in 1985 to provide that the prosecuting attorney’s statement must assert only that the appeal is not taken for purposes of delay and that the evidence is substantial proof of a fact material in the proceeding, but the 1985 amendment did not apply in a case where the state filed its appeal prior to its effective date of July 1, 1985. State v. Whitney, 377 N.W.2d 132, 1985 N.D. LEXIS 437 (N.D. 1985).

Law Reviews.

For Case Comment: Criminal Law – Search And Seizure: The North Dakota Supreme Court Adopts a Four-Prong Test to Determine Whether Miranda Warnings Are Sufficient to Cure a Fourth Amendment Violation State v. Gay, 2008 ND 84, 748 N.W.2d 408, see 85 N.D. L. Rev. 215 (2009).

Article: Constitutional Roadkill in the Courts: Looking To the Legislature To Protect North Dakota Motorists Against Almost Unlimited Police Power To Stop and Investigate Crime, see 86 N.D. L. Rev. 1 (2010).

29-28-08. Time for appeals in criminal cases. [Repealed]

Superseded by N.D.R.Crim.P., Rule 37.

29-28-09. Manner of taking appeal — Notice. [Repealed]

Superseded by N.D.R.Crim.P., Rules 37, 38.

29-28-10. Personal service impossible — Publication. [Repealed]

Superseded by N.D.R.Crim.P., Rule 49.

29-28-11. When appeal deemed taken. [Repealed]

Superseded by N.D.R.Crim.P., Rule 37.

29-28-12. Appeal by state — Effect.

An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant until the judgment is reversed.

Source:

R.C. 1895, § 8334; R.C. 1899, § 8334; R.C. 1905, § 10143; C.L. 1913, § 10998; R.C. 1943, § 29-2812.

Cross-References.

Stay of execution and relief pending review, see N.D.R.Crim.P., Rule 38.

29-28-13. What judgments superseded by appeal — Certificate of probable cause. [Repealed]

Superseded by N.D.R.Crim.P., Rule 38.

29-28-14. Certificate of probable cause issued — Duty of sheriff. [Repealed]

Superseded by N.D.R.Crim.P., Rule 38.

29-28-15. Execution suspended during pendency of appeal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 38.

29-28-16. Stay on appeal — Custody of defendant. [Repealed]

Superseded by N.D.R.Crim.P., Rules 38, 46.

29-28-17. Certificate of appeal taken and bail put in — Duty of sheriff. [Repealed]

Superseded by N.D.R.Crim.P., Rules 38, 46.

29-28-18. Transmission of papers to supreme court. [Repealed]

Superseded by N.D.R.App.P., Rule 11.

29-28-19. Printing of transcripts or briefs not required. [Repealed]

Superseded by N.D.R.App.P., Rule 32.

29-28-20. Irregularity in substantial particulars — Notice. [Repealed]

Superseded by N.D.R.App.P., Rules 3, 27.

29-28-21. An appeal must not be dismissed for informality. [Repealed]

Superseded by N.D.R.App.P., Rule 3.

29-28-22. Appeal stands for argument at first term. [Repealed]

Superseded by N.D.R.App.P., Rule 45.

29-28-23. When verdict or judgment must be affirmed — Reversal. [Repealed]

Superseded by N.D.R.App.P., Rule 34.

29-28-24. Number of counsel heard. [Repealed]

Superseded by N.D.R.App.P., Rule 34.

29-28-25. Defendant need not appear in supreme court. [Repealed]

Superseded by N.D.R.App.P., Rule 34.

29-28-26. Technical errors to be disregarded on appeal. [Repealed]

Superseded by N.D.R.Crim.P., Rule 52.

29-28-27. Court may review intermediate orders. [Repealed]

Superseded by N.D.R.App.P., Rule 35.

29-28-28. Power of supreme court on appeal. [Repealed]

Superseded by N.D.R.App.P., Rule 35.

29-28-29. New trial ordered — Where had. [Repealed]

Superseded by N.D.R.App.P., Rule 35.

Collateral References.

DNA evidence as newly discovered evidence which will warrant grant of new trial or other postconviction relief in criminal case,125 A.L.R.5th 497.

29-28-30. Judgment reversed without new trial — Defendant discharged — Disposal of bail.

If a judgment against the defendant is reversed without ordering a new trial, the supreme court, if the defendant is in custody, shall direct that the defendant be discharged therefrom, or if on bail, that the defendant’s bail be exonerated, or if money was deposited instead of bail, that it be refunded to the defendant.

Source:

C. Crim. P. 1877, § 495; R.C. 1895, § 8352; R.C. 1899, § 8352; R.C. 1905, § 10161; C.L. 1913, § 11017; R.C. 1943, § 29-2830.

29-28-30.1. Verdict affirmed — Must be enforced.

If a verdict against the defendant is affirmed, the original verdict must stand and any court orders thereon, including suspension and deferred imposition of sentence, must be enforced.

Source:

S.L. 1965, ch. 229, § 9.

29-28-31. Judgment affirmed must be enforced.

If a judgment against the defendant is affirmed, the original judgment must be enforced.

Source:

C. Crim. P. 1877, § 496; R.C. 1895, § 8353; R.C. 1899, § 8353; R.C. 1905, § 10162; C.L. 1913, § 11018; R.C. 1943, § 29-2831.

29-28-32. Judgment of court entered — Certificate. [Repealed]

Superseded by N.D.R.App.P., Rule 36.

29-28-33. Certificate remitted — District court only has jurisdiction.

After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings therein, and all orders necessary to carry the judgment into effect must be made by the district court to which the certificate is remitted.

Source:

C. Crim. P. 1877, § 498; R.C. 1895, § 8355; R.C. 1899, § 8355; R.C. 1905, § 10164; C.L. 1913, § 11020; R.C. 1943, § 29-2833.

29-28-34. Imprisonment, reversal, reimprisonment — Deduction of time already served. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

29-28-35. Appeal by state — Power of supreme court.

If the appeal is taken by the state, the supreme court cannot reverse the judgment or modify it so as to increase the punishment, but may affirm it, and shall point out any errors in the proceedings or in the measure of punishment, and its opinion is obligatory on the district court as the correct exposition of the law.

Source:

R.C. 1895, § 8356; R.C. 1899, § 8356; R.C. 1905, § 10165; C.L. 1913, § 11021; R.C. 1943, § 29-2835.

Notes to Decisions

Grounds for Appeal.

This section does not provide any grounds upon which the state can appeal in criminal cases, but sets forth the relief which can be granted the state once an appeal is authorized by N.D.C.C. § 29-28-07. State v. Flohr, 259 N.W.2d 293, 1977 N.D. LEXIS 214 (N.D. 1977).

Court’s authority.

Although a district court abused the court’s discretion in accepting a plea agreement and then subsequently modifying the agreed upon sentence from a term of incarceration to probation to circumvent the plea agreement, the Supreme Court of North Dakota was required to affirm the judgment because the reversal of the judgment would have resulted in increased punishment. State v. Neilan, 2021 ND 217, 967 N.W.2d 765, 2021 N.D. LEXIS 224 (N.D. 2021).

CHAPTER 29-29 Search Warrants

29-29-01. Search warrant defined.

A search warrant is an order in writing, made in the name of the state, signed by a magistrate, directed to a peace officer, commanding the peace officer to search for personal property and to bring it before the magistrate.

Source:

C.Crim.P. 1877, § 561; R.C. 1895, § 8461; R.C. 1899, § 8461; R.C. 1905, § 10271; C.L. 1913, § 11129; R.C. 1943, § 29-2901.

Cross-References.

Declaration of rights, see N.D. Const., Art. I.

Search and seizure, see N.D.R.Crim.P., Rule 41.

Notes to Decisions

Federal Prosecution.

In bank robbery prosecution under federal statute, search warrant issued by police magistrate rather than federal court was held proper. Gallagher v. United States, 406 F.2d 102, 1969 U.S. App. LEXIS 9209 (8th Cir. N.D.), cert. denied, 395 U.S. 968, 89 S. Ct. 2117, 23 L. Ed. 2d 756, 1969 U.S. LEXIS 1341 (U.S. 1969).

Collateral References.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone, 38 A.L.R.4th 1145.

Validity of anticipatory search warrants — state cases, 67 A.L.R.5th 361.

29-29-02. Grounds for issuance of search warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-03. Issued only upon probable cause. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-04. Sworn complaint must be made — Depositions of witnesses. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-05. Requisites of search warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-06. Form of search warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rules 41, 58.

29-29-07. By whom search warrant served. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-08. Execution of warrant — Use of force.

An officer directed to serve a search warrant may break open an outer or inner door or window of a house, or any part of the house, or anything therein, to execute the warrant:

  1. If, after notice of the officer’s authority and purpose, the officer is refused admittance; or
  2. Without notice of the officer’s authority and purpose if the warrant was issued by a magistrate who is learned in the law and who has inserted a direction therein that the officer executing it shall not be required to give such notice.

The magistrate may so direct only upon written or recorded oral petition and proof under oath, to the magistrate’s satisfaction, that the property sought may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, if such notice were to be given.

Source:

C. Crim. P. 1877, § 568; R.C. 1895, § 8468; R.C. 1899, § 8468; R.C. 1905, § 10278; C.L. 1913, § 11136; R.C. 1943, § 29-2908; S.L. 1967, ch. 260, § 1; 1991, ch. 347, § 1.

Cross-References.

Uniform Controlled Substances Act, issuance and execution of search warrants, see § 19-03.1-32.

Notes to Decisions

“Breaking.”

“Breaking” includes, under ordinary circumstances, an entry made without permission. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

The failure of law enforcement officers to announce their presence and mission prior to entering through an open door to a house constitutes a “breaking” under this section, requiring suppression of the evidence seized in the subsequent search. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

Common Law.

This section is a codification of the common-law rule that police may enter a home only after announcing their presence and purpose in seeking entry. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

Conflict with § 19-03.1-32.

Insofar as there may be a conflict between this section and § 19-03.1-32, the latter prevails with respect to offenses involving controlled substances. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

Constitutional Imperative.

The rule of announcement is more than a statutory requirement. It is a constitutional imperative implicit in the fourth amendment prohibition against unreasonable searches and seizures. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

Delay Before Entry.

Given defendant’s inability to maneuver within the dwelling because he was in a wheelchair, the time of night of the search, defendant’s conviction for possessing an illegal shotgun, and that officers had reason to conclude illegal contraband was being destroyed, officers’ 10-minute wait to force entry was not unreasonable. State v. LaFromboise, 542 N.W.2d 110, 1996 N.D. LEXIS 17 (N.D. 1996).

Door.

Where vestibule and stairway were not a common area open to the public, but rather, were a private area of the defendants’ home, as evidenced by the clothing and personal effects they kept there, there was sufficient evidence to support the finding that the main door was the threshold to the defendants’ home, requiring the officers to comply with this section. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

Probable Cause.

Probable cause is required for issuance of a no-knock warrant under § 19-03.1-32. State v. Herrick, 1997 ND 155, 567 N.W.2d 336, 1997 N.D. LEXIS 174 (N.D. 1997).

Purpose.

The primary policies underlying the knock-and-announce rule are the protection of privacy in the home and the prevention of violent confrontations. State v. Sakellson, 379 N.W.2d 779, 1985 N.D. LEXIS 456 (N.D. 1985).

Collateral References.

What constitutes compliance with knock-and-announce rule in search of private premises — State cases, 85 A.L.R.5th 1.

Propriety of Execution of No-Knock Search Warrant. 59 A.L.R.6th 311.

29-29-09. Liberating self or assistant — Use of force.

To execute a search warrant, an officer may break open any outer or inner door or window of a house for the purpose of liberating a person who, having entered to aid the officer in the execution of the warrant, is detained therein, or when necessary for the officer’s own liberation.

Source:

C. Crim. P. 1877, § 569; R.C. 1895, § 8469; R.C. 1899, § 8469; R.C. 1905, § 10279; C.L. 1913, § 11137; R.C. 1943, § 29-2909.

29-29-10. Search warrant to be served in daytime — Exception. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-11. Search warrant void if not executed in ten days. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-12. Return of warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-13. Copy of inventory — To whom delivered. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-14. Complaint controverted — Testimony in writing — Authentication. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-15. When property taken under search warrant to be restored. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-16. Papers relating to search warrant to be returned to district court. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-17. Disposal of property taken on a warrant. [Repealed]

Superseded by N.D.R.Crim.P., Rule 41.

29-29-18. Causing issuance of search warrant on false information — Penalty.

A person who recklessly and without probable cause causes a search warrant to be issued and executed is guilty of a class A misdemeanor.

Source:

C. Crim. P. 1877, § 579; R.C. 1895, § 8479; R.C. 1899, § 8479; R.C. 1905, § 10289; C.L. 1913, § 11147; R.C. 1943, § 29-2918; S.L. 1975, ch. 106, § 338.

29-29-19. Officer exceeding authority guilty of misdemeanor. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

29-29-20. Search of accused for dangerous weapons — Circumstances permitting.

When a person charged with a felony is supposed by the magistrate before whom the person is brought to have possession of a dangerous weapon, or anything which may be used as evidence of the commission of the offense, the magistrate may direct the person to be searched in the magistrate’s presence, and the weapon or other thing to be retained, subject to the magistrate’s order or the order of the court in which the defendant may be tried.

Source:

C. Crim. P. 1877, § 581; R.C. 1895, § 8481; R.C. 1899, § 8481; R.C. 1905, § 10291; C.L. 1913, § 11149; R.C. 1943, § 29-2920.

29-29-21. Temporary questioning of persons in public places — Search for weapons.

A peace officer may stop any person abroad in a public place whom the officer reasonably suspects is committing, has committed, or is about to commit:

  1. Any felony.
  2. A misdemeanor relating to the possession of a concealed or dangerous weapon or weapons.
  3. Burglary or unlawful entry.
  4. A violation of any provision relating to possession of marijuana or of narcotic, hallucinogenic, depressant, or stimulant drugs.

The peace officer may demand of such person the person’s name, address, and an explanation of the person’s actions. When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that the officer is in danger of life or limb, the officer may search such person for a dangerous weapon. If the peace officer finds such a weapon or any other thing, the possession of which may constitute a crime, the officer may take and keep it until the completion of the questioning, at which time the officer shall either return it, if lawfully possessed, or arrest such person.

Source:

S.L. 1969, ch. 302, § 1; 1971, ch. 319, § 1.

Cross-References.

Unreasonable searches and seizures, see N.D. Const., Art. I, § 8.

Notes to Decisions

Application.

Officer was permitted to stop defendant for the purpose of having him identify himself because he matched the physical description of a suspicious person recently reported in the area. State v. Mercier, 2016 ND 160, 883 N.W.2d 478, 2016 N.D. LEXIS 164 (N.D. 2016).

—Investigatory Stops of Motor Vehicles.

This section is not applicable to investigatory stops of motor vehicles and, therefore, does not itself prohibit law enforcement from using checkpoints. City of Bismarck v. Uhden, 513 N.W.2d 373, 1994 N.D. LEXIS 68 (N.D. 1994).

Criminal Trespass.

Where, shortly after midnight, officers responded to a call that a person was knocking on an inhabitant’s door, and found defendant and a companion at the inhabitant’s door, they had a reasonable and articulable suspicion that defendant was engaged in unlawful activity and were justified in temporarily detaining him. State v. Parizek, 2004 ND 78, 678 N.W.2d 154, 2004 N.D. LEXIS 170 (N.D. 2004).

Domestic Violence.

Itemized reasons under this section are not exclusive; police may stop a person to investigate an allegation of domestic violence when reasonable and articulable suspicion exists. State v. Boline, 1998 ND 67, 575 N.W.2d 906, 1998 N.D. LEXIS 74 (N.D. 1998).

Driving Under the Influence.

Even though this section does not include DUI among the offenses where a temporary stop for questioning is authorized upon reasonable suspicion and less than probable cause, where deputy sheriff reasonably suspected defendant was driving under the influence of alcohol, he was properly stopped. State v. Zimmerman, 516 N.W.2d 638, 1994 N.D. LEXIS 114 (N.D. 1994).

Collateral References.

Propriety of stop and search by law enforcement officers based solely on drug courier profile, 37 A.L.R.5th 1.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations, 82 A.L.R.5th 103.

Law Reviews.

The Predicates of Suspicion: Stop and Frisk on an Informant’s Tip — Extending Terry to Possessory Offenses, 49 N.D. L. Rev. 127 (1972).

Criminal Procedure — Is “Reasonable Suspicion” Becoming “Probable Cause”?, 69 N.D. L. Rev. 999 (1993).

Summary of North Dakota Supreme Court Decisions on Criminal Law — Search and Seizure, 71 N.D. L. Rev. 871 (1995).

Criminal Procedure — Searches and Seizures: As Long as There is Probable Cause to Make a Traffic Stop, Pretextual Arrests are Constitutional, 73 N.D. L. Rev. 373 (1997).

29-29-22. Release of information contained in complaint or warrant.

The magistrate who issues a search warrant shall order the information in the complaint and warrant confidential, if the law enforcement officer articulates a reason for the confidentiality that convinces the issuing magistrate that limited confidentiality is necessary for the safety of the law enforcement officer or to enable the warrant to be properly served. The magistrate shall limit the duration of the order to the time of the arrest of the accused and shall exempt law enforcement officers in the performance of official duties.

Source:

S.L. 1995, ch. 319, § 2.

CHAPTER 29-29.1 Administrative Search Warrants

29-29.1-01. Warrants to conduct inspections authorized by law.

  1. Notwithstanding the provisions of chapter 29-29, any official or employee of the state or of a unit of county or local government of North Dakota may, under the conditions specified herein, obtain a warrant authorizing to conduct a search or inspection of property if such a search or inspection is one that is elsewhere authorized by law, either with or without the consent of the person whose privacy would be thereby invaded, and is one for which such a warrant is constitutionally required.
  2. The warrant may be issued by any magistrate whose territorial jurisdiction encompasses the property to be inspected.

Source:

S.L. 1969, ch. 303, § 1.

Notes to Decisions

Authority to Seek Warrant.

North Dakota State Electrical Board had the authority to seek an administrative search warrant to inspect electrical work done on a homeowner’s addition to his home, but the issuance of the administrative search warrant was not a final, appealable order. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784, 2008 N.D. LEXIS 189 (N.D. 2008).

29-29.1-02. Conditions to be met before issuance.

The issuing magistrate shall issue the warrant when the magistrate is satisfied the following conditions are met:

  1. The one seeking the warrant shall establish under oath or affirmation that the property to be searched or inspected is to be searched or inspected as a part of a legally authorized program of inspection which naturally includes that property, or that there is probable cause for believing that there is a condition, object, activity, or circumstance which legally justifies such a search or inspection of that property;
  2. An affidavit indicating the basis for the establishment of one of the grounds described in subsection 1 must be signed under oath or affirmation by the affiant; and
  3. The issuing magistrate shall examine the affiant under oath or affirmation to verify the accuracy of the matters indicated by the statement in the affidavit.

Source:

S.L. 1969, ch. 303, § 1.

29-29.1-03. Requirements for valid issuance.

The warrant is validly issued only if it meets the following requirements:

  1. It must be signed by the issuing magistrate and must bear the date and hour of its issuance above the magistrate’s signature with a notation that the warrant is valid for only twenty-four hours following its issuance;
  2. It must describe, either directly or by reference to the affidavit, the property where the search or inspection is to occur and be accurate enough in description so that the executor of the warrant and the owner or the possessor of the property can reasonably determine from it what person or property the warrant authorizes an inspection of;
  3. It must indicate the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal; and
  4. It must be attached to the affidavit required to be made in order to obtain the warrant.

Source:

S.L. 1969, ch. 303, § 1.

Collateral References.

Sufficiency of search warrant description of place to be searched in multiple-occupancy structure, 11 A.L.R.3d 1330.

29-29.1-04. Warrant valid for twenty-four hours.

Any warrant issued under this chapter for a search or inspection is valid for only twenty-four hours after its issuance, must be personally served upon an owner or possessor of the property, or upon any person present on the premises if an owner or possessor cannot reasonably be found between the hours of 8:00 a.m. and 8:00 p.m., and must be returned within forty-eight hours.

Source:

S.L. 1969, ch. 303, § 1.

29-29.1-05. Competency of evidence discovered.

No facts discovered or evidence obtained in a search or inspection conducted under authority of a warrant issued under this chapter may be competent as evidence in any civil, criminal, or administrative action, nor considered in imposing any civil, criminal, or administrative sanction against any person, nor as a basis for further seeking to obtain any warrant, if the warrant is invalid or if what is discovered or obtained is not a condition, object, activity, or circumstance which it was the legal purpose of the search or inspection to discover; but this does not prevent any such facts or evidence to be so used when the warrant issued is not constitutionally required in those circumstances.

Source:

S.L. 1969, ch. 303, § 1.

Collateral References.

Admissibility of evidence obtained from search by private individual, 36 A.L.R.3d 553.

29-29.1-06. Not criminal search warrants.

The warrants authorized under this chapter may not be regarded as search warrants for the purpose of application of chapter 29-29.

Source:

S.L. 1969, ch. 303, § 1.

CHAPTER 29-29.2 Wiretapping in Drug Offense Investigations

29-29.2-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Aggrieved person” means a person who was a party to any intercepted wire, electronic, or oral communication or a person against whom the interception was directed.
  2. “Common carrier” is defined in section 8-07-01.
  3. “Contents”, when used with respect to any wire, electronic, or oral communication, includes any information concerning the identity of the parties to the communication or the existence, substance, purport, or meaning of that communication.
  4. “Electronic communication” means transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system, but does not include:
    1. The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;
    2. A wire or oral communication;
    3. A communication made through a tone-only paging device; or
    4. A communication from a tracking device, defined as an electronic or mechanical device that permits the tracing of the movement of a person or object.
  5. “Electronic, mechanical, or other device” means any device or apparatus that can be used to intercept a wire, electronic, or oral communication, other than:
    1. Any telephone or telegraph instrument, equipment, or facility, or any component thereof, either:
      1. Furnished to the subscriber or user in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by a subscriber or user for connection to the facilities of service and used in the ordinary course of its business; or
      2. Being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of the officer’s duties.
    2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal;
    3. A device or apparatus specifically designed to only record conversations to which the operator of the device is a party;
    4. A device or apparatus used in the normal course of broadcasting by radio or television; or
    5. A device or apparatus that is otherwise commonly used for a purpose other than overhearing or recording conversations.
  6. “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.
  7. “Judge of competent jurisdiction” means justice of the supreme court of this state or judge of any district court of this state.
  8. “Law enforcement officer” means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.
  9. “Oral communication” means a communication uttered by a person believing that the communication is not subject to interception, under circumstances justifying that belief, but does not include any electronic communication.
  10. “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including any electronic storage of the communication, but does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

In determining whether a device that is alleged to be an electronic, mechanical, or other device is, in fact, such a device, there must be taken into account, among other things, the size, appearance, directivity, range, sensitivity, frequency, power, or intensity, and the representation of the maker or manufacturer as to its performance and use.

Source:

S.L. 1989, ch. 399, § 1.

29-29.2-02. Ex parte order for wiretapping and eavesdropping.

  1. An ex parte order for wiretapping or eavesdropping, or both, may be issued by any judge of competent jurisdiction. The order may be issued upon application of the attorney general, or an assistant attorney general, or a state’s attorney, or an assistant state’s attorney, showing by affidavit that there is probable cause to believe that evidence will be obtained of the commission or attempted commission of a felony violation of chapter 19-03.1, or a criminal conspiracy to commit a felony violation of chapter 19-03.1.
  2. Unless otherwise provided by law, an ex parte order for wiretapping or eavesdropping may be issued only for a crime specified in subsection 1 for which a felony penalty is authorized upon conviction.
  3. Each application for wiretapping or eavesdropping, or both, must be made in writing upon oath or affirmation to a judge of competent jurisdiction and must state the applicant’s authority to make the application. Each application must include:
    1. The identity of the law enforcement officer making the application, and the officer authorizing the application.
    2. A complete statement of the facts and circumstances relied upon by the applicant, to justify the belief that an order should be issued, including details as to the particular offense that has been, is being, or is about to be committed; a particular description of the nature and location of the facilities from which, or the place where, the communication is to be intercepted; a particular description of the type of communication sought to be intercepted; and the identity of the person, if known, committing the offense and whose communications are to be intercepted.
    3. A complete statement as to whether other investigative procedures have been tried and failed, or why they reasonably appear to be unlikely to succeed if tried, or to be too dangerous.
    4. A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, there must be a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur thereafter.
    5. A complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, electronic, or oral communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application.
    6. If the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain those results.
  4. The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
  5. Upon an application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving wiretapping or eavesdropping within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that:
    1. There is probable cause for belief that a person is committing, has committed, or is about to commit a felony violation of chapter 19-03.1 or a criminal conspiracy to commit a felony violation of chapter 19-03.1;
    2. There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;
    3. Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous; and
    4. There is probable cause for belief that the facilities from which or the place where the wire, electronic, or oral communications are to be intercepted are being used, or about to be used, in connection with the commission of an offense, or are leased to, listed in the name of, or commonly used by the person alleged to be involved in the commission of the offense.
  6. Each order authorizing or approving wiretapping or eavesdropping must specify:
    1. The identity of the person, if known, whose communications are to be intercepted.
    2. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted.
    3. A particular description of the type of communications sought to be intercepted, and a statement of the particular offense to which it relates.
    4. The identity of the agency authorized to intercept the communications, and of the person authorizing the application.
    5. The period of time during which an interception is authorized, including a statement as to whether the interception automatically terminates when the subscribed communication is first obtained.
  7. No order entered under this chapter may authorize or approve the interception of any wire, electronic, or oral communication for any period longer than is necessary to achieve the objective of the authorization. In no event may the period exceed thirty days. The thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered. An extension of an order may be granted, but only upon application for an extension made in accordance with subsection 3, and to the court making the findings required by subsection 5. The period of the extension may be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted, and in no event for longer than thirty days. Every order and extension of an order must contain provisions that the authorization to intercept must be executed as soon as practicable, must be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this section, and must terminate upon attainment of the authorized objective, or in any event in thirty days. No more than one extension may be granted for any order entered under this section.
  8. If an order authorizing interception is entered pursuant to this section, the order may require reports to be made to the judge who issued the order, showing what progress has been made toward achievement of the authorized objective and the need for continued interception. A report must be made at any time the judge requires.
    1. The contents of any wire, electronic, or oral communication intercepted by any means authorized by this section must, if possible, be recorded on tape, wire, or other comparable device. The recording of the contents of any wire, electronic, or oral communication under this subsection must be done in such a way as will protect the recording from editing or other alterations. Immediately upon expiration of the period of the order, or extension of the order, the recording must be made available to the judge issuing the order and sealed under the judge’s directions. The judge shall direct where the recording must be maintained. A recording may not be destroyed except upon an order of the judge, and in any event must be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to this section. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, is a prerequisite for the use or disclosure of the contents of any wire, electronic, or oral communication or evidence derived under this section.
    2. Applications made and orders granted under this section must be sealed by the judge. The judge shall direct where applications and orders must be maintained. The applications and orders may be disclosed only upon a showing of good cause before a judge of competent jurisdiction, and may not be destroyed except on order of the judge to whom presented. In any event applications and orders must be kept for ten years. Information obtained pursuant to a court order authorizing interception of wire, electronic, or oral communications may not be used, published, or divulged except in accordance with this chapter.
    3. The court may punish violation of this subsection as contempt of court.
  9. Within a reasonable time, but not later than ninety days after the termination of the period of an order or extension thereof, the judge to whom the application was presented shall cause to be served, on the persons named in the order or the application, and any other party to intercepted communications as the judge may determine is in the interest of justice, notice of the following:
    1. The fact of the entry of the order.
    2. The date of the entry and the period of authorized interception.
    3. The fact that during the period wire, electronic, or oral communications were intercepted.
  10. The contents of any intercepted wire, electronic, or oral communication or evidence derived therefrom may not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a court, unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the court if the court finds that it was not possible to furnish the party with the information ten days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving this information.
  11. An aggrieved person in any trial, hearing, or proceeding in or before any court, officer, agency, or other authority of this state, or a political subdivision of this state, may move to suppress the contents of any intercepted wire, electronic, or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted, the order of authorization or approval under which it was intercepted is insufficient on its face, or the interception was not made in conformity with the order of authorization or approval. This motion must be made before the trial, hearing, or proceeding unless there was no opportunity to make the motion, or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, electronic, or oral communication, or evidence derived from the communication may not be received as evidence. The court, upon the filing of the motion by the aggrieved person, may make available to the aggrieved person or the person’s counsel for inspection any portion of the intercepted communication or evidence derived from the communication as the court determines to be in the interests of justice.
  12. In addition to any other right to appeal, the state has the right to appeal from an order granting a motion to suppress made under subsection 12, or the denial of an application for an order of approval, if the person making or authorizing the application certifies to the judge granting the motion or denying an application that the appeal is not taken for purposes of delay. The appeal must be taken within thirty days after the date the order was entered and must be diligently prosecuted.
  13. A law enforcement officer who, by any means authorized by this section, has obtained knowledge of the contents of a wire, electronic, or oral communication, or evidence derived from the communication, may disclose the contents to another law enforcement officer to the extent that this disclosure is appropriate in the proper performance of the official duties of the officer making or receiving the disclosure.
  14. A law enforcement officer who, by means authorized by this section, has obtained knowledge of the contents of any wire, electronic, or oral communication, or evidence derived therefrom, may use those contents to the extent the use is appropriate in the official performance of official duties.
  15. A person who has received, by means authorized by this section, information concerning a wire, electronic, or oral communication, or evidence derived from the communication, intercepted in accordance with this section, may disclose the contents of that communication or derivative evidence while giving testimony in any proceeding held under the authority of the United States or this state.
  16. No otherwise privileged wire, electronic, or oral communication intercepted in accordance with, or in violation of, this section loses its privileged character.
  17. When a law enforcement officer, while engaged in intercepting wire, electronic, or oral communications in the manner authorized in this section, intercepts wire, electronic, or oral communications relating to an offense other than one specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections 14 and 15 only if an offense other than one specified in the order is an offense that constitutes a felony under the laws of this state. The contents, and evidence derived from the contents, as authorized by this section, may be used under subsection 16 only when authorized or approved by a judge of competent jurisdiction, when the judge finds on subsequent application that the contents were otherwise intercepted in accordance with this section. This application must be made as soon as practicable.
  18. The requirements of subdivision b of subsection 3 and subdivision d of subsection 5 relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:
    1. In the case of an application with respect to the interception of an oral communication, the application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted and the judge finds that such specification is not practical; or
    2. In the case of an application with respect to a wire or electronic communication, the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities and the judge finds that such purpose has been adequately shown.
  19. An interception of a communication under an order with respect to which the requirements of subdivision b of subsection 3 and subdivision d of subsection 5 do not apply by reason of subsection 19 may not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communication service which has received an order as provided for in subdivision b of subsection 19 may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the government, shall rule on such a motion expeditiously.

The judge, upon the filing of a motion, may make available to any person or counsel for inspection such portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the matter required by this subsection may be postponed.

Source:

S.L. 1989, ch. 399, § 2.

29-29.2-03. Order may direct others to furnish assistance.

An order authorizing the interception of a wire, electronic, or oral communication must, upon request of the applicant, direct that a communication common carrier shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the carrier is according the person whose communications are to be intercepted. A communication common carrier furnishing these facilities or technical assistance must be compensated by the applicant for reasonable expenses incurred in providing the facilities or assistance.

Source:

S.L. 1989, ch. 399, § 3.

29-29.2-04. Reports to attorney general.

A state’s attorney shall report annually to the attorney general information as to the number of applications made for orders permitting the interception of wire, electronic, or oral communications; the offense specified in the order or application; the nature of the facilities from which or the place where communications were to be intercepted; the number of persons whose communications were intercepted, the number of arrests resulting from interceptions made under such order or extension, and the offenses for which arrests were made; the number of motions to suppress made with respect to such interceptions and the number granted or denied; the number of convictions resulting from the interceptions and the offenses for which the convictions were obtained; and a general assessment of the importance of the interceptions. The state’s attorney shall submit the report to the attorney general by January first of each year. The report must include all orders and applications made, but not in effect, during the preceding year.

Source:

S.L. 1989, ch. 399, § 4.

29-29.2-05. Inapplicability.

This chapter does not apply to the interception, disclosure, or use of a wire, electronic, or oral communication if the person intercepting, disclosing, or using the wire, electronic, or oral communication:

  1. Was a person acting under color of law to intercept a wire, electronic, or oral communication and was a party to the communication or one of the parties to the communication had given prior consent to such interception; or
  2. Was a party to the communication or one of the parties to the communication had given prior consent to such interception and such communication was not intercepted for the purpose of committing a crime or other unlawful harm.

Source:

S.L. 1989, ch. 399, § 5.

Notes to Decisions

Constitutionality.

Trial court did not err in denying defendant’s motion to suppress because the state constitution was not violated by law enforcement’s warrantless electronic monitoring of defendant’s face-to-face conversations with an informant when the conversations and drug transactions occurred in the informant’s car and the informant consented to the electronic monitoring; defendant’s suggestion to declare the statute unconstitutional was declined. State v. Loh, 2010 ND 66, 780 N.W.2d 719, 2010 N.D. LEXIS 57 (N.D. 2010).

Coercion.

Where there is an allegation of coercion regarding an informant’s consent to electronic surveillance, the government must show that there has been no undue pressure, threats, or improper inducements. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

Favorable Treatment for Informant.

The fact that an informant anticipates favorable treatment or leniency in return for cooperation does not make a consent to participate in electronic surveillance involuntary. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

Where there was no dispute that the informant who wore the body transmitter was cooperating with authorities in return for a favorable recommendation to the prosecutor, there was testimony that the informants were fully aware of the nature of the transaction, and the informant wore the body transmitter during the transaction and it was undisputed that he knew the transaction was being monitored, the court concluded that the evidence satisfactorily established the informant’s consent. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

Federal Precedent.

Supreme court looked to federal precedent’s interpretation of the consent clause of this section. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

Improper Police Conduct.

Only when an informant’s consent to cooperate in conducting electronic surveillance is the product of improper police conduct, such as coercion or promises which have no realistic basis in fact, is the consent deemed involuntary. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

CHAPTER 29-29.3 Pen Registers and Trap and Trace Devices

29-29.3-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Electronic communication” means transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a wire or oral communication, a communication made through a tone-only paging device, or a communication from a tracking device.
  2. “Electronic communication service” means any service that provides to users of the service the ability to send or receive wire or electronic communications.
  3. “Pen register” means a device that records or decodes electronic or other impulses that identify the number dialed or otherwise transmitted on the telephone line to which the device is attached, but the term does not include a device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or a device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.
  4. “Tracking device” means an electronic or mechanical device that permits the tracing of the movement of a person or object.
  5. “Trap and trace device” means a device which captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.
  6. “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including any electronic storage of the communication, but does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.

Source:

S.L. 1989, ch. 400, § 1.

29-29.3-02. Prohibition on pen register and trap and trace device use — Exception.

A person may not install or use a pen register or trap and trace device without first obtaining a court order under this chapter. The prohibition in this section does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:

  1. Relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of such provider, or to the protection of users of that service from abuse of service or unlawful use of service;
  2. To record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful, or abusive use of service; or
  3. When the consent of the user of that service has been obtained.

Source:

S.L. 1989, ch. 400, § 2.

29-29.3-03. Application for an order for a pen register or a trap and trace device.

  1. The attorney general, an assistant attorney general, a state’s attorney, or an assistant state’s attorney may make application, in writing under oath or equivalent affirmation, for an order or an extension of an order under this chapter authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter to a court of competent jurisdiction.
  2. An investigative or law enforcement officer may make application, in writing under oath or equivalent affirmation, for an order or an extension of an order under this chapter authorizing or approving the installation and use of a pen register or a trap and trace device under this chapter to a court of competent jurisdiction of this state.
  3. An application under subsection 1 or 2 must include:
    1. The identity of the attorney general, assistant attorney general, state’s attorney, or assistant state’s attorney or the law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation; and
    2. A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

Source:

S.L. 1989, ch. 400, § 3.

29-29.3-04. Issuance of an order for a pen register or a trap and trace device — Notice.

  1. Upon an application made under this chapter, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the attorney general, assistant attorney general, state’s attorney, or assistant state’s attorney or the law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to ongoing criminal investigation.
  2. An order issued under this section:
    1. Must specify:
      1. The identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached;
      2. The identity, if known, of the person who is the subject of the criminal investigation;
      3. The number and, if known, physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and
      4. A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
    2. Must direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under this chapter.
  3. An order issued under this section authorizes the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days. Extensions of the order may be granted, but only upon an application for an order under this chapter and upon the judicial finding required by subsection 1. The period of extension may not exceed sixty days.
  4. An order authorizing or approving the installation and use of a pen register or a trap and trace device must direct that:
    1. The order be sealed until otherwise ordered by the court; and
    2. The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless otherwise ordered by the court.
  5. Within a reasonable time, but not later than one year after the termination of the period of an order or extension of an order, the judge to whom the application was presented shall cause to be served on the persons named in the order or application, and on any other party the notification of whom the judge determines is in the interest of justice, notice of:
    1. The fact of the entry of the order.
    2. The date of the entry and the period of authorized installation and use of the pen register or trap and trace device.
    3. The fact that during the period of the order or extension information was obtained through use of the pen register or trap and trace device.

Source:

S.L. 1989, ch. 400, § 4.

29-29.3-05. Assistance in installation and use of a pen register or a trap and trace device.

  1. Upon the request of the attorney general, assistant attorney general, state’s attorney, or assistant state’s attorney or an officer of a law enforcement agency authorized to install and use a pen register under this chapter, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the investigative or law enforcement officer all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such assistance is directed by a court order as provided in this chapter.
  2. Upon the request of the attorney general, assistant attorney general, state’s attorney, or assistant state’s attorney or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under this chapter, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device on the appropriate line and shall furnish the investigative or law enforcement officer all additional information, facilities, and technical assistance, including installation and operation of the device, unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such installation and assistance is directed by a court order as provided in this chapter. Unless otherwise ordered by the court, the results of the trap and trace device must be furnished to the officer of a law enforcement agency designated by the court at reasonable intervals during regular business hours for the duration of the order.
  3. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance under this section must be reasonably compensated for reasonable expenses incurred in providing the facilities and assistance.
  4. No cause of action lies in any court against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under this chapter.
  5. A good-faith reliance on a court order, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under this chapter or any other law.

Source:

S.L. 1989, ch. 400, § 5.

CHAPTER 29-29.4 Surveillance by Unmanned Aerial Vehicle

29-29.4-01. Definitions.

As used in this chapter:

  1. “Flight data” means imaging or other observation recording.
  2. “Flight information” means flight duration, flight path, and mission objective.
  3. “Law enforcement agency or agents” has the meaning provided for law enforcement officer in section 12.1-01-04.
  4. “Unmanned aerial vehicle” means any aerial vehicle that is operated without the possibility of direct human intervention within or on the aerial vehicle. The term does not include satellites.
  5. “Unmanned aerial vehicle system” means an unmanned aerial vehicle and associated elements, including communication links and the components that control the unmanned aerial vehicle, which are required for the pilot in command to operate safely and efficiently in state airspace.

Source:

S.L. 2015, ch. 239, § 1, effective August 1, 2015.

Effective Date.

This chapter became effective August 1, 2015.

29-29.4-02. Limitations on use of unmanned aerial vehicle system.

  1. Information obtained from an unmanned aerial vehicle is not admissible in a prosecution or proceeding within the state unless the information was obtained:
    1. Pursuant to the authority of a search warrant; or
    2. In accordance with exceptions to the warrant requirement.
  2. Information obtained from the operation of an unmanned aerial vehicle may not be used in an affidavit of probable cause in an effort to obtain a search warrant, unless the information was obtained under the circumstances described in subdivision a or b of subsection 1 or was obtained through the monitoring of public lands or international borders.

Source:

S.L. 2015, ch. 239, § 1, effective August 1, 2015.

29-29.4-03. Warrant requirements.

A warrant for the use of an unmanned aerial vehicle must satisfy the requirements of the Constitution of North Dakota. In addition, the warrant must contain a data collection statement that includes:

  1. The persons that will have the power to authorize the use of the unmanned aerial vehicle;
  2. The locations in which the unmanned aerial vehicle system will operate;
  3. The maximum period for which the unmanned aerial vehicle system will operate in each flight; and
  4. Whether the unmanned aerial vehicle system will collect information or data about individuals or groups of individuals, and if so:
    1. The circumstances under which the unmanned aerial vehicle system will be used; and
    2. The specific kinds of information or data the unmanned aerial vehicle system will collect about individuals and how that information or data, as well as conclusions drawn from that information or data, will be used, disclosed, and otherwise handled, including:
      1. The period for which the information or data will be retained; and
      2. Whether the information or data will be destroyed, and if so, when and how the information or data will be destroyed.

Source:

S.L. 2015, ch. 239, § 1, effective August 1, 2015.

29-29.4-04. Exceptions.

This chapter does not prohibit any use of an unmanned aerial vehicle for surveillance during the course of:

  1. Patrol of national borders. The use of an unmanned aerial vehicle to patrol within twenty-five miles [40.23 kilometers] of a national border, for purposes of policing that border to prevent or deter the illegal entry of any individual, illegal substance, or contraband.
  2. Exigent circumstances. The use of an unmanned aerial vehicle by a law enforcement agency is permitted when exigent circumstances exist. For the purposes of this subsection, exigent circumstances exist when a law enforcement agency possesses reasonable suspicion that absent swift preventative action, there is an imminent danger to life or bodily harm.
  3. An environmental or weather-related catastrophe. The use of an unmanned aerial vehicle by state or local authorities to preserve public safety, protect property, survey environmental damage to determine if a state of emergency should be declared, or conduct surveillance for the assessment and evaluation of environmental or weather-related damage, erosion, flood, or contamination.
  4. Research, education, training, testing, or development efforts undertaken by or in conjunction with a school or institution of higher education within the state and its political subdivisions, nor to public and private collaborators engaged in mutually supported efforts involving research, education, training, testing, or development related to unmanned aerial vehicle systems or unmanned aerial vehicle system technologies and potential applications.

Source:

S.L. 2015, ch. 239, § 1, effective August 1, 2015.

29-29.4-05. Prohibited use.

  1. A law enforcement agency may not authorize the use of, including granting a permit to use, an unmanned aerial vehicle armed with any lethal weapons.
  2. This chapter prohibits any use of an unmanned aerial vehicle for:
    1. Domestic use in private surveillance. A law enforcement agency may not authorize the use of, including granting a permit to use, an unmanned aerial vehicle to permit any private person to conduct surveillance on any other private person without the express, informed consent of that other person or the owner of any real property on which that other private person is present.
    2. Surveillance of the lawful exercise of constitutional rights, unless the surveillance is otherwise allowed under this chapter.

Source:

S.L. 2015, ch. 239, § 1, effective August 1, 2015.

29-29.4-06. Documentation of unmanned aerial vehicle use.

  1. The person authorized to conduct the surveillance under this chapter shall document all use of an unmanned aerial vehicle for surveillance. The person shall document all surveillance flights as to duration, flight path, and mission objectives.
  2. The flight information must be verified as accurate and complete by the supervising person authorized by a court to conduct the surveillance.
  3. The flight information required under this section must be retained for five years.
  4. Any imaging or any other forms of data lawfully obtained under this chapter which are not accompanied by a reasonable and articulable suspicion that the images or data contain evidence of a crime, or are relevant to an ongoing investigation or trial, may not be retained for more than ninety days.
  5. Except for the operational capabilities of the unmanned aerial vehicle system and other operational information strictly related to the technical conduct and physical security of the surveillance operation, a person accused of a crime that includes evidence gathered through the use of an unmanned aerial vehicle system surveillance may obtain all information relating to the person acquired in the course of the surveillance through subpoena and discovery proceedings available in criminal proceedings.
  6. Any other person that has an interest in obtaining the documentation required by this section may obtain that documentation pursuant to chapter 44-04.

Source:

S.L. 2015, ch. 239, § 1, effective August 1, 2015.

CHAPTER 29-29.5 Confidential Informants

Source:

S.L. 2017, hb1221, § 2, effective August 1, 2017.

29-29.5-01. Definitions.

  1. “Benefit” means any of the following conferred on a confidential informant or a third party:
    1. Leniency in a criminal case or probation or parole matter, including a decision whether to arrest or charge an offense or to limit the number or severity of charges;
    2. Sentence reduction of any kind or amount; or
    3. A favorable sentencing or bond recommendation.
  2. “Confidential informant” means an individual who cooperates with a law enforcement agency and:
    1. Is willing to attempt a controlled buy or controlled sale or agrees to surreptitiously record a target offender; and
    2. Seeks or is offered a benefit.
  3. “Controlled buy” means the purchase or attempted purchase of contraband, controlled substances, or other items material to a criminal investigation while under supervision or direction of law enforcement.
  4. “Controlled sale” means the sale or attempted sale of contraband, controlled substances, or other items material to a criminal investigation while under supervision or direction of enforcement.
  5. “Informant agreement” means a written agreement describing the rights and obligations of a confidential informant and law enforcement agency.
  6. “Law enforcement agency” means an agency authorized by law to enforce the law and to conduct or engage in investigations or prosecutions for violations of the law.
  7. “Target offender” means an individual suspected of a violation of the law, whose identity is known or unknown, and who is the focus of an informant agreement.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-02. Limitation on use of juvenile confidential informants.

  1. A law enforcement agency may not use a juvenile fifteen years of age or younger as a confidential informant.
  2. A juvenile over the age of fifteen, but under the age of eighteen, may not be used as a confidential informant unless:
    1. The juvenile is married;
    2. The juvenile is emancipated;
    3. The juvenile is serving in the active duty armed forces; or
    4. The juvenile is subject to criminal charges; and
      1. There are no other reasonable avenues to obtain evidence of the crime being investigated and the risk of harm to the juvenile is minimal;
      2. The juvenile’s custodial parent or guardian has signed the informant agreement; and
      3. The juvenile has consulted with legal counsel.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-03. Limitation on use of campus police.

A law enforcement officer employed under section 15-10-17 may not enter an informant agreement with a student enrolled in an institution under the control of the state board of higher education.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-04. Law enforcement confidential informant training and guidelines.

  1. After July 1, 2018, a law enforcement agency may not use a confidential informant unless the law enforcement agency is trained in the use of confidential informants in a training course approved by the attorney general.
    1. Training must occur at least once every three years, and must establish that the law enforcement agency has trained all personnel who are involved in the use or recruitment of confidential informants in the law enforcement agency’s policies and procedures in a manner consistent with the peace officer standards and training requirements.
    2. The law enforcement agency shall document the date and scope of all training along with all law enforcement personnel trained.
  2. The peace officers standards and training board shall adopt rules for the use of confidential informants which at a minimum:
    1. Assign the consideration of the preservation of the safety of a confidential informant.
    2. Execute reasonable protective measures for a confidential informant.
    3. Establish guidelines for the training and briefing of confidential informants.
    4. Restrict off-duty association or social relationships by law enforcement agency personnel with confidential informants.
    5. Establish procedures to deactivate confidential informants which maintain the safety and anonymity of confidential informants.
    6. Establish a process to evaluate and report the criminal history and propensity for violence of any target offenders.
    7. Establish written security procedures protecting the identity of a confidential informant.
    8. Establish written procedures relating to the use of a paid confidential informant.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-05. Written agreement required.

Except for court proceedings, a law enforcement agency may use a confidential informant only with a written agreement executed by the confidential informant and the law enforcement agency. An agreement for use of a confidential informant must be in writing, and include:

  1. The confidential informant’s right to remain silent, the right to speak with legal counsel at any time, and the right to cease working as a confidential informant;
  2. A statement of the benefit, which will be recommended upon substantial compliance with the informant agreement;
  3. A statement that an absolute guarantee or promise may not be made to the confidential informant other than law enforcement will truthfully report cooperation;
  4. A statement of the inherent risk associated with acting as a confidential informant;
  5. Confidential informant responsibilities, including testifying truthfully if called as a witness in a court proceeding;
  6. A written waiver of right to counsel which must be executed separately and attached to the informant agreement, signed by the confidential informant and a law enforcement officer, and include language stating that consulting legal counsel at any time will not invalidate the agreement;
  7. The parameters of the agreement, detailing the anticipated number of buys, sales, acts, or the duration of service;
  8. A description of any penalty for violating the terms of the written agreement, including any additional criminal charges;
  9. A warning that sexual relations with an intended target of a police investigation is a violation of the agreement and may be a violation of the law;
  10. A statement that money or property loaned or entrusted to the confidential informant by law enforcement may not be used for personal use and must be accounted for at all times; and
  11. Specification of any known crimes of violence committed by a target offender.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-06. Death of a confidential informant.

Upon the death of a confidential informant, the supervising law enforcement agency shall withdraw from the investigation of the death of its confidential informant. The supervising law enforcement agency promptly shall notify the attorney general of its withdrawal from the investigation, and the attorney general shall authorize an independent law enforcement agency investigation.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-07. Reporting violations of this chapter.

  1. An individual may report a suspected violation of this chapter to the appropriate law enforcement agency administration. The law enforcement agency shall investigate any reported violation within twenty days from receiving the complaint and, within forty-five days from receiving the complaint, make a written determination on whether a violation occurred. Upon completion, the law enforcement agency shall forward the written report to the individual who filed the initial complaint and to the peace officer standards and training board for review. An individual who filed a report for a suspected violation may seek additional remedies from the peace officer standards and training board.
  2. A licensed peace officer or a prosecutor who reasonably believes a law enforcement officer or a law enforcement agency has violated this chapter shall file a written report with the peace officer standards and training board.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017.

29-29.5-08. Disposition of cases involving confidential informants.

  1. An informant agreement may be presented to the court at the time of sentencing. A court shall give consideration at sentencing to a confidential informant who has substantially complied with an informant agreement.
  2. After consideration of an informant agreement, a court may defer imposition of sentence or suspend a portion of a minimum mandatory sentence when a confidential informant has substantially complied with an informant agreement.
  3. If necessary to protect a confidential informant or the integrity of an ongoing investigation, a court may direct submission of sentencing memoranda in writing under seal when sentencing or deferring imposition of sentence of a confidential informant.
  4. If necessary to protect a confidential informant or the integrity of an investigation, a court may dispense with reporting departure from a mandatory sentence under subsection 3 of section 12.1-32-03.
  5. This section does not prohibit disposition of cases by deferral of prosecution with or without court approval.

Source:

S.L. 2017, ch. 229, § 2, effective August 1, 2017; 2019, ch. 187, § 7, effective August 1, 2019.

CHAPTER 29-29.6 Tracking Warrants

Source:

S.L. 2019, sb2272, § 1, effective August 1, 2019.

29-29.6-01. Definitions.

As used in this chapter:

  1. “Electronic communication service” has the meaning given in subsection 2 of section 29-29.3-01.
  2. “Electronic device” means a device that enables access to or use of an electronic communication service, remote computing service, or location information service.
  3. “Government entity” means a state or local agency, including a law enforcement entity or any other investigative entity, agency, department, division, bureau, board, or commission or an individual acting or purporting to act for or on behalf of a state or local agency.
  4. “Location information” means information concerning the location of an electronic device that, in whole or in part, is generated or derived from or obtained by the operation of an electronic device. This information could include historical cell site location information, real time cell site location information, or any cell site location information from a specific period of time.
  5. “Location information service” means the provision of a global positioning service or other mapping, locational, or directional information service.
  6. “Remote computing service” means the provision to the public of computer storage or processing services by means of an electronic communication system.
  7. “Tracking warrant” means an order in writing, in the name of the state, signed by a court directed to a peace officer, granting the officer access to location information of an electronic device.

Source:

S.L. 2019, ch. 272, § 1, effective August 1, 2019.

29-29.6-02. Tracking warrant required for location information.

  1. Except as provided in subsection 2, a government entity may not obtain the location information of an electronic device without a tracking warrant. A warrant granting access to location information must be issued only if the government entity shows that there is probable cause the person who possesses an electronic device is committing, has committed, or is about to commit a crime. An application for a warrant must be made in writing and include:
    1. The identity of the government entity’s peace officer making the application, and the officer authorizing the application; and
    2. A statement of the facts and circumstances relied on by the applicant to justify the applicant’s belief that a warrant should be issued, including:
      1. Details as to the particular offense that has been, is being, or is about to be committed; and
      2. The identity of the person, if known, committing the offense whose location information is to be obtained.
  2. A government entity may obtain location information without a tracking warrant:
    1. When the electronic device is reported lost or stolen by the owner;
    2. In order to respond to the user’s call for emergency services;
    3. With the informed, affirmative, documented consent of the owner or user of the electronic device;
    4. With the informed, affirmative consent of the legal guardian or next of kin of the owner or user if the owner or user is believed to be deceased or reported missing and unable to be contacted; or
    5. In an emergency situation that involves injury or death to a person who possesses an electronic communications device pursuant to section 8-10-11.

Source:

S.L. 2019, ch. 272, § 1, effective August 1, 2019.

29-29.6-03. Time period and extensions.

  1. A tracking warrant issued under this section must authorize the collection of location information for a period not to exceed sixty days, or the period of time necessary to achieve the objective of the authorization, whichever is less.
  2. Extensions of a tracking warrant may be granted, but only upon an application for an order and upon the judicial finding required by subdivision b of subsection 1 of section 29-29.6-02. The period of extension must be for a period not to exceed sixty days, or the period of time necessary to achieve the objective for which it is granted, whichever is less.
  3. Subsections 1 and 2 apply only to tracking warrants issued for the contemporaneous collection of electronic device location information.

Source:

S.L. 2019, ch. 272, § 1, effective August 1, 2019.

29-29.6-04. Notice — Temporary nondisclosure of tracking warrant.

  1. Within a reasonable time, but not later than ninety days after the court unseals the tracking warrant under this section, the issuing or denying judge shall cause to be served on the persons named in the warrant and the application an inventory which shall include notice of:
    1. The fact of the issuance of the warrant or the application;
    2. The date of the issuance and the period of authorized, approved, or disapproved collection of location information, or the denial of the application; and
    3. The fact that during the period location information was or was not collected.
  2. A tracking warrant authorizing collection of location information must direct that:
    1. The warrant be sealed for a period of ninety days; and
    2. The warrant be filed with the court administrator within ten days of the expiration of the warrant.
  3. The prosecutor may request that the tracking warrant, supporting affidavits, and any order granting the request not be filed. An order must be issued granting the request in whole or in part if, from affidavits, sworn testimony, or other evidence, the court finds reasonable grounds exist to believe that filing the warrant may cause the search or a related search to be unsuccessful, create a substantial risk of injury to an innocent person, or severely hamper an ongoing investigation.
  4. The tracking warrant must direct that following the commencement of any criminal proceeding utilizing evidence obtained in or as a result of the search, the supporting application or affidavit must be filed either immediately or at any other time as the court directs. Until such filing, the documents and materials ordered withheld from filing must be retained by the judge or the judge’s designee.

Source:

S.L. 2019, ch. 272, § 1, effective August 1, 2019.

CHAPTER 29-30 Fugitives From Justice [Repealed]

[Repealed by S.L. 1979, ch. 375, § 31]

CHAPTER 29-30.1 Uniform Rendition of Accused Persons Act [Repealed]

[Repealed by S.L. 1985, ch. 364, § 27]

CHAPTER 29-30.2 Criminal Extradition Act [Repealed]

[Repealed by S.L. 1985, ch. 364, § 27]

CHAPTER 29-30.3 Uniform Extradition and Rendition Act

29-30.3-01. (1-101) Definitions.

As used in this chapter:

  1. “Arrest warrant” means any document that authorizes a peace officer to take custody of a person.
  2. “Certified copy” means a copy of a document accompanied by a statement of a custodian authorized by the law of a state to maintain the document that the copy is a complete and true copy of an official record filed and maintained in a public office.
  3. “Demanded person” means a person whose return to a demanding state is sought from another state by extradition under sections 29-30.3-08 through 29-30.3-14.
  4. “Demanding state” means a state that is seeking the return of a person from another state through the process of extradition under sections 29-30.3-08 through 29-30.3-14.
  5. “Executive authority” means the chief executive in a state other than this state, any person performing the functions of chief executive, or a representative designated by the chief executive.
  6. “Governor” means the governor of this state, any person performing the functions of governor, or a representative designated by the governor.
  7. “Issuing authority” means any person who may issue or authorize the issuance of an arrest warrant.
  8. “Requested person” means a person whose return to a requesting state is sought from another state by rendition under sections 29-30.3-15 through 29-30.3-20.
  9. “Requesting state” means a state that is seeking the return of a person from another state through the process of rendition under sections 29-30.3-15 through 29-30.3-20.

Source:

S.L. 1985, ch. 364, § 1.

Collateral References.

Immunity of extradited person from service of process, 20 A.L.R.2d 163.

Determination whether crime is charged, 40 A.L.R.2d 1151.

Charge of crime, indictment as prima facie evidence of sufficiency of, 40 A.L.R.2d 1151.

Extradition under state statutes providing for reciprocal enforcement of duty to support defendants, 42 A.L.R.2d 768.

Comparative Legislation.

The Uniform Extradition and Rendition Act was approved in 1980 by the National Conference of Commissioners on Uniform State Laws.

North Dakota appears to be the first state to enact the Uniform Extradition and Rendition Act.

The Uniform Extradition and Rendition Act was approved in 1980 by the National Conference of Commissioners on Uniform State Laws.

Jurisdictions which have enacted the Uniform Criminal Extradition Act and/or the Uniform Rendition of Accused Persons Act, both of which preceded the Uniform Extradition and Rendition Act (1980), include: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virgin Islands, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

29-30.3-02. (1-102) Conditions of release.

The law of pretrial release of this state governs release of a person pursuant to sections 29-30.3-06, 29-30.3-13, 29-30.3-19, and 29-30.3-21.

Source:

S.L. 1985, ch. 364, § 2.

29-30.3-03. (1-103) Nonwaiver by this state.

This chapter and proceedings under it are not exclusive and do not affect the authority of this state to:

  1. Try a demanded or requested person for a crime committed within this state;
  2. Take custody of a demanded or requested person by extradition or rendition proceedings for the purpose of trial, sentence, or punishment for a crime committed within this state;
  3. Take custody of a person under other provisions of law, including interstate agreements; or
  4. Release a person from custody upon any valid conditions.

Source:

S.L. 1985, ch. 364, § 3.

29-30.3-04. (2-101) Arrest without warrant.

  1. A peace officer may arrest a person without an arrest warrant upon probable cause to believe that the person is the subject of another state’s arrest warrant issued for:
    1. Commission of a crime punishable by death or imprisonment for a term exceeding one year;
    2. Escape from confinement; or
    3. Violation of any term of bail, probation, parole, or an order arising out of a criminal proceeding.
  2. The arrested person must be brought before the nearest available magistrate.
  3. The magistrate shall issue an order to continue custody or other process to assure the appearance of the person, if testimony or affidavit shows probable cause to believe the person is the subject of another state’s arrest warrant issued for:
    1. The commission of a crime punishable by death or imprisonment for a term exceeding one year;
    2. Escape from confinement; or
    3. Violation of any term of bail, probation, parole, or an order arising out of a criminal proceeding.

Source:

S.L. 1985, ch. 364, § 4; 1997, ch. 281, § 1.

Note.

In light of the similarity of the subject matter, a decision under former section 29-30-04 is included in the annotations for this section.

Notes to Decisions

Standard for Investigatory Stop.

Officers were not required to actually confirm outstanding warrant prior to making investigatory stop. Such an argument would, in essence, require law enforcement officers to have an “absolute” suspicion that a person had violated the law, as opposed to a “reasonable and articulable” suspicion. State v. Rodriguez, 454 N.W.2d 726, 1990 N.D. LEXIS 93 (N.D. 1990).

Information that defendant was the subject of a felony warrant from South Dakota met the standard of articulable suspicion that the motorist violated the law, which was sufficient to entitle the officer to make a legal investigative stop of the vehicle. State v. Rodriguez, 454 N.W.2d 726, 1990 N.D. LEXIS 93 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Arrest Without Warrant.

Former section 29-30-04 did not specifically or by implication prohibit the arrest of fugitives from justice without a warrant. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

29-30.3-05. (2-102) Issuance of process or arrest warrant prior to receipt of demand or request.

  1. A magistrate for the county where arrest is sought shall authorize the issuance of an arrest warrant or other process to obtain the appearance of a person, if testimony or affidavit shows probable cause to believe:
    1. The person is in this state; and
    2. The person is the subject of another state’s arrest warrant issued for:
      1. The commission of a crime punishable by death or imprisonment for a term exceeding one year;
      2. Escape from confinement; or
      3. Violation of any term of bail, probation, parole, or order arising out of a criminal proceeding.
  2. Other process to obtain the appearance of a person must require the appearance before a magistrate.
  3. The arrest warrant must require that the person be brought forthwith before a magistrate.

Source:

S.L. 1985, ch. 364, § 5; 1997, ch. 281, § 2.

29-30.3-06. (2-103) Appearance prior to receipt of demand or request.

  1. The magistrate shall inform the person appearing pursuant to section 29-30.3-04 or 29-30.3-05 of:
    1. The name of the other state that has subjected the person to an arrest warrant;
    2. The basis for the arrest warrant in the other state;
    3. The right to assistance of counsel; and
    4. The right to require a judicial hearing under this chapter before transfer of custody to the other state.
  2. After being informed by the magistrate of the effect of a waiver, the arrested person may waive the right to require a judicial hearing under this chapter and consent to return to the other state by executing a written waiver in the presence of the magistrate. If the waiver is executed, the magistrate shall issue an order to transfer custody pursuant to section 29-30.3-21 or, with the consent of the official upon whose application the arrest warrant was issued in the other state, authorize the voluntary return of the person to that state.
  3. Unless a waiver is executed pursuant to subsection 2, the magistrate shall:
    1. Release the person upon conditions that will reasonably assure availability of the person for arrest pursuant to section 29-30.3-12 or 29-30.3-18; or
    2. Direct a law enforcement officer to maintain custody of the person.

Subject to section 29-30.3-07, the period of conditional release or custody may not exceed thirty days.

Source:

S.L. 1985, ch. 364, § 6.

29-30.3-07. (2-104) Extension of time.

  1. If the person is not arrested pursuant to section 29-30.3-12 or 29-30.3-18 within the period specified in the arrest warrant or other process, the magistrate for good cause may issue further orders under subsection 3 of section 29-30.3-06 for additional periods not exceeding a total of sixty days. Further extensions of orders may be requested by the person under subsection 3 of section 29-30.3-06.
  2. If the person is not arrested pursuant to section 29-30.3-12 or 29-30.3-18 within the time specified by the magistrate, the person may not be subjected to any further order in this state under subsection 3 of section 29-30.3-06. If the person is subsequently arrested in this state under section 29-30.3-04 or 29-30.3-05 on the basis of the same arrest warrant of the other state, the person may not be subjected to the issuance of orders under subsection 3 of section 29-30.3-06 and must be released from custody. However, the person may be arrested thereafter pursuant to section 29-30.3-12 or 29-30.3-18.

Source:

S.L. 1985, ch. 364, § 7.

Note.

In light of the similarity of the subject matter, a decision under former section 29-30-05 is included in the annotations for this section.

DECISIONS UNDER PRIOR LAW

Extension.

Magistrate did not abuse his discretion under former section 29-30-05 by allowing demanding state a forty-day extension for completing extradition process, since he was aware of circumstances making extension necessary and time allowed was not unreasonable. Wilkins v. Granrud, 178 N.W.2d 644, 1970 N.D. LEXIS 119 (N.D. 1970).

29-30.3-08. (3-101) Demand for extradition.

  1. The governor may recognize a written demand by an executive authority for the extradition of a person, alleging that the person:
    1. Is charged with a crime in the demanding state; or
    2. Having been charged with or convicted of a crime in the demanding state has:
      1. Escaped from confinement; or
      2. Violated any term of bail, probation, parole, or an order arising out of a criminal proceeding in the demanding state.
  2. The governor may demand the extradition of a person from another state in accordance with the Constitution of the United States and may comply with the requirements of the other state for recognition of a demand.

Source:

S.L. 1985, ch. 364, § 8.

Note.

In light of the similarity of the subject matter, decisions under former chapter 29-30 are included in the annotations for this section.

DECISIONS UNDER PRIOR LAW

Analysis

Abandoning Children.

One charged with the abandonment of minor children was a fugitive from justice within the extradition laws. Ex parte Quint, 54 N.D. 515, 209 N.W. 1006, 1926 N.D. LEXIS 54 (N.D. 1926).

Charged with Crime.

“Charged with crime” as used in former section 29-30-02 included all persons of accused of crime and continued until sentence had been completed. Wilkins v. Granrud, 178 N.W.2d 644, 1970 N.D. LEXIS 119 (N.D. 1970).

Definition.

A person is a fugitive from justice where, after having committed a crime within one state, he, when sought to be subjected to criminal process, is found within the jurisdiction of another state. In re Galbreath, 24 N.D. 582, 139 N.W. 1050, 1913 N.D. LEXIS 11 (N.D. 1913).

Violation of Parole.

Minnesota could extradite from North Dakota a prisoner who had been paroled to Wisconsin authorities and who subsequently committed felonies in North Dakota and other states. Ex parte Amundson, 74 N.D. 134, 20 N.W.2d 340, 1945 N.D. LEXIS 61 (N.D. 1945).

29-30.3-09. (3-102) Supporting documentation.

A demand for extradition must be accompanied by a certified copy of an arrest warrant and one of the following:

  1. A statement by the issuing authority that the arrest warrant was issued after a determination of probable cause to believe that a crime has been committed and the demanded person committed the crime, together with a copy of the provisions of law defining the crime and fixing the penalty therefor.
  2. A certified copy of the indictment upon which the arrest warrant is based.
  3. A statement by the issuing authority that the arrest warrant was issued after a determination of probable cause to believe that the demanded person has violated any term of bail, probation, or an order arising out of a criminal proceeding.
  4. A certified copy of a judgment of conviction or a sentencing order accompanied by a statement by the issuing authority that the demanded person has escaped from confinement or violated any term of parole.

Source:

S.L. 1985, ch. 364, § 9.

Note.

In light of the similarity of the subject matter, a decision under former § 29-30-04 is included in the annotations for this section.

DECISIONS UNDER PRIOR LAW

Exemplified Copy of Judicial Proceedings.

Where original warrant of the demanding state was attached to and by reference made part of complaint requesting issuance of warrant pursuant to former section 29-30-03, magistrate had sufficient information of accused’s status, criminal record, conviction and violation of parole, so that exemplified copy of other judicial proceedings was unnecessary. Wilkins v. Granrud, 178 N.W.2d 644, 1970 N.D. LEXIS 119 (N.D. 1970).

29-30.3-10. (3-103) Governor’s investigation.

The governor may:

  1. Investigate the demand for extradition and the circumstances of the demanded person;
  2. Request the attorney general or any state’s attorney to investigate; or
  3. Hold a hearing.

Source:

S.L. 1985, ch. 364, § 10.

29-30.3-10.1. Guilt or innocence of accused — When inquiry made.

The guilt or innocence of the accused as to the crime with which the person is charged may not be inquired into by the governor or in any proceeding after a demand for extradition has been presented to the governor or a demand for rendition has been filed with the attorney general, except as it may be involved in identifying the person held as the person charged with the crime.

Source:

S.L. 1987, ch. 395, § 1.

29-30.3-11. (3-104) Extradition of persons imprisoned or awaiting trial.

  1. If a demanded person is being prosecuted, is imprisoned, is on parole or probation, or is subject to an order arising out of a criminal proceeding, in this state, the governor may:
    1. Grant extradition;
    2. Delay action; or
    3. Agree with the executive authority of the demanding state to grant extradition upon conditions.
  2. The governor may agree with an executive authority of another state for the extradition of a person who is being prosecuted, is imprisoned, is on parole or probation, or is subject to an order arising out of a criminal proceeding, in that state upon conditions prescribed by the agreement.

Source:

S.L. 1985, ch. 364, § 11.

29-30.3-12. (3-105) Governor’s warrant.

  1. If the governor decides to comply with the demand for extradition, the governor shall issue a warrant for the arrest and extradition of the demanded person. The governor’s warrant must recite the name of the state demanding extradition and the crime charged or other basis for the demand.
  2. The governor may specify the time and manner in which the warrant is executed.
  3. At any time before the transfer of custody of the demanded person to the agent of the demanding state, the governor may recall the warrant or issue another warrant.
  4. The warrant must be directed to any law enforcement officer and require compliance with section 29-30.3-13.
  5. The law relating to assistance in the execution of other arrest warrants in this state applies to the execution of the governor’s warrant.

Source:

S.L. 1985, ch. 364, § 12.

Note.

In light of the similarity of the subject matter, a decision under former section 29-30-02 is included in the annotations for this section.

DECISIONS UNDER PRIOR LAW

Accuracy of Rendition Warrant.

Arrest on governor’s rendition warrant was not invalidated by fact that rendition warrant charged different crime than that for which prisoner was held under fugitive warrant. Bebeau v. Granrud, 184 N.W.2d 577, 1971 N.D. LEXIS 149 (N.D. 1971).

29-30.3-13. (3-106) Rights of demanded person.

  1. A person arrested under a governor’s warrant must be brought before the nearest available magistrate who shall receive the warrant and inform the person of:
    1. The name of the state demanding extradition;
    2. The crime charged or other basis for the demand;
    3. The right to assistance of counsel; and
    4. The right to a judicial hearing under section 29-30.3-14.
  2. After being informed by the magistrate of the effect of a waiver, the demanded person may waive the right to a judicial hearing and consent to return to the demanding state by executing a written waiver in the presence of the magistrate. If the waiver is executed, the magistrate shall issue an order to transfer custody pursuant to section 29-30.3-21 or, with the consent of the executive authority of the demanding state, authorize the voluntary return of the person.
  3. If a hearing is not waived, the magistrate shall hold it within ten days after the appearance. The demanded person and the state’s attorney of the county in which the hearing is to be held must be informed of the time and the place of the hearing. The magistrate shall:
    1. Release the person upon conditions that will reasonably assure availability of the person for the hearing; or
    2. Direct a law enforcement officer to maintain custody of the person.

Source:

S.L. 1985, ch. 364, § 13; 1997, ch. 281, § 3.

Note.

In light of the similarity of the subject matter, a decision under former § 29-30-06 is included in the annotations for this section.

Cross-References.

Bail pending extradition, see § 29-08-26.

DECISIONS UNDER PRIOR LAW

Bail Pending Determination of Writ of Habeas Corpus.

Fugitive from justice held in custody on governor’s warrant in extradition proceedings could not be admitted to bail under former section 29-30-06 pending determination of application for habeas corpus. In re Amundson, 74 N.D. 83, 19 N.W.2d 918, 1945 N.D. LEXIS 55 (N.D. 1945).

Notice and Opportunity to Be Heard.

Where detention of alleged fugitive was sought to be extended for a period of time, fugitive should have been given notice and an opportunity to be heard rather than being further detained by ex parte order. Alkerton v. Wingenbach, 217 N.W.2d 787, 1974 N.D. LEXIS 229 (N.D. 1974).

29-30.3-14. (3-107) Judicial extradition hearing.

  1. If the magistrate after hearing finds that the governor has issued a warrant supported by the documentation required by subsection 1 of section 29-30.3-08 and section 29-30.3-09, the magistrate shall issue an order to transfer custody pursuant to section 29-30.3-21 unless the arrested person establishes by clear and convincing evidence that the arrested person is not the demanded person.
  2. If the magistrate does not order transfer of custody, the magistrate shall order the arrested person to be released. If the agent of the demanding state has not taken custody within the time specified in the order to transfer custody, the demanded person must be released. Thereafter, an order to transfer custody may be entered only if a new arrest warrant is issued as a result of a new demand for extradition or a new request for rendition.
  3. An order to transfer custody is not appealable.
  4. An order denying transfer is appealable.

Source:

S.L. 1985, ch. 364, § 14.

29-30.3-15. (4-101) Request for rendition.

  1. Subject to subsections 2 and 3, this state may grant a written request by an issuing authority of another state for the rendition of a person in this state.
  2. The request must be refused if the requested person is:
    1. Being prosecuted or is imprisoned in this state for a criminal offense;
    2. The subject of a pending proceeding in a juvenile court of this state brought for the purpose of adjudicating the person to be a delinquent child;
    3. In the custody of an agency of this state pursuant to an order of disposition of a juvenile court of this state as a delinquent child; or
    4. Under the supervision of the juvenile court of this state pursuant to informal adjustment or an order of disposition of the court.
  3. The request must allege that the person:
    1. Is charged with a crime punishable in the requesting state by death or imprisonment for a term exceeding one year in the requesting state; or
    2. Having been charged with or convicted of a crime in the requesting state, has escaped from confinement or violated any term of bail, probation, parole, or an order arising out of a criminal proceeding in the requesting state.
  4. Upon application of the attorney general or a state’s attorney, an issuing authority may request rendition of a person from another state and may comply with requirements of that state for the granting of the request. A correction official who is also an issuing authority may request rendition from another state of a person described in subdivision b of subsection 3, and subject to the jurisdiction of the correction official.

Source:

S.L. 1985, ch. 364, § 15.

29-30.3-16. (4-102) Supporting documentation.

A request for rendition must be accompanied by a certified copy of the arrest warrant and one of the following:

  1. A statement by the issuing authority that the arrest warrant was issued after a determination of probable cause to believe that a crime has been committed and the requested person committed the crime, together with a copy of the provisions of law defining the crime and fixing the penalty therefor.
  2. A certified copy of the indictment upon which the arrest warrant is based.
  3. A statement by the issuing authority that the warrant was issued after a determination of probable cause to believe that the requested person has violated any term of bail, probation, or other judicial order arising out of a criminal proceeding.
  4. A certified copy of a judgment of conviction or a sentencing order accompanied by a statement by the issuing authority that the requested person has escaped from confinement or violated any term of parole.

Source:

S.L. 1985, ch. 364, § 16.

29-30.3-17. (4-103) Filing of request.

A request for rendition under section 29-30.3-15 must be filed with the attorney general’s office, which office shall forward the request to the proper state’s attorney. The governor by written order may terminate the use of rendition at any time before the issuance of an order to transfer custody.

Source:

S.L. 1985, ch. 364, § 17.

29-30.3-18. (4-104) Issuance of arrest warrant or process.

Upon receipt of a request under section 29-30.3-17, the prosecuting official shall apply to a magistrate for the issuance of an arrest warrant, or other process, to obtain the appearance of the requested person. If the magistrate finds that the provisions of sections 29-30.3-15 and 29-30.3-16 have been complied with, the magistrate shall issue the warrant or other process. The warrant must require that the person be brought forthwith before the magistrate. Other process to obtain the appearance of a person must require the appearance before a magistrate.

Source:

S.L. 1985, ch. 364, § 18.

29-30.3-19. (4-105) Rights of requested person.

  1. The magistrate shall inform the person appearing pursuant to section 29-30.3-18 of:
    1. The name of the state requesting rendition;
    2. The basis for the arrest warrant in the other state;
    3. The right to assistance of counsel; and
    4. The right to require a judicial hearing pursuant to section 29-30.3-20.
  2. After being informed by the magistrate of the effect of a waiver, the requested person may waive the right to a judicial hearing and consent to return to the requesting state by executing a written waiver in the presence of the magistrate. If the waiver is executed, the magistrate shall issue an order to transfer custody pursuant to section 29-30.3-21 or with consent of the official upon whose application the request was issued authorize the voluntary return of the person.
  3. If a hearing is not waived, the magistrate shall hold it within ten days after the appearance. The requested person and the state’s attorney of the county in which the hearing is to be held must be informed of the time and place of the hearing. The magistrate shall:
    1. Release the person upon conditions that will reasonably assure availability of the person for the hearing; or
    2. Direct a law enforcement officer to maintain custody of the person.

Source:

S.L. 1985, ch. 364, § 19.

Collateral References.

Habeas corpus discharge of one held in extradition proceedings are precluding subsequent such proceedings, 33 A.L.R.3d 1443.

Right of extraditee to bail after issuance of governor’s warrant and pending final disposition of habeas corpus claim, 13 A.L.R.5th 118.

Allowance of Bail in International Extradition Proceedings. 60 A.L.R. Fed. 2d 203.

29-30.3-20. (4-106) Judicial rendition hearing.

  1. If the magistrate after hearing finds that sections 29-30.3-15 and 29-30.3-16 have been complied with, the magistrate shall issue an order to transfer custody pursuant to section 29-30.3-21 unless the arrested person establishes by clear and convincing evidence that arrested person is not the requested person.
  2. If the magistrate does not order transfer of custody, the magistrate shall order the arrested person to be released. If the agent of the requesting state has not taken custody within the time specified in the order to transfer custody, the requested person must be released. Thereafter, an order to transfer custody may be entered only if a new arrest warrant is issued as a result of a new demand for extradition or a new request for rendition.
  3. An order to transfer custody is not appealable.
  4. An order denying transfer is appealable.

Source:

S.L. 1985, ch. 364, § 20.

29-30.3-21. (5-101) Order to transfer custody.

  1. Except as provided in subsection 2, a judicial order to transfer custody issued pursuant to section 29-30.3-06, 29-30.3-13, 29-30.3-14, 29-30.3-19, or 29-30.3-20 must direct a law enforcement officer to take or retain custody of the person until an agent of the other state is available to take custody. If the agent of the other state has not taken custody within ten days, the magistrate may:
    1. Order the release of the person upon conditions that will assure the person’s availability on a specified date within thirty days; or
    2. Extend the original order for an additional ten days upon good cause shown for the failure of an agent of the other state to take custody.
  2. If the agent of the other state has not taken custody within the time specified in the order, the person must be released. Thereafter, an order to transfer custody may be entered only if a new arrest warrant or other process to obtain appearance of a person is issued as a result of a new demand for extradition or a new request for rendition.
  3. The magistrate in the order may authorize the voluntary return of the person with consent of the executive authority or with the consent of the official upon whose application the request for rendition was made.

Source:

S.L. 1985, ch. 364, § 21.

29-30.3-22. (5-102) Confinement.

An agent who has custody of a person pursuant to an order to transfer custody issued in any state may request confinement of the person in any detention facility in this state while transporting the person pursuant to the order. Upon production of proper identification of the agent and a copy of the order, the detention facility shall confine the person for that agent. The person is not entitled to another extradition or rendition proceeding in this state.

Source:

S.L. 1985, ch. 364, § 22.

Collateral References.

Right of extraditee to bail after issuance of governor’s warrant and pending final disposition of habeas corpus claim, 13 A.L.R.5th 118.

29-30.3-23. (5-103) Cost of return.

Unless the states otherwise agree, the state to which the person is being returned shall pay the cost of returning the person incurred after transfer of custody to its agent.

Source:

S.L. 1985, ch. 364, § 23.

29-30.3-24. (5-104) Applicability of other law.

  1. A person returned to this state is subject to the law of this state as well as the provisions of law that constituted the basis for the return.
  2. This chapter does not limit the powers, rights, or duties of the officials of a demanding or requesting state or of this state.

Source:

S.L. 1985, ch. 364, § 24.

29-30.3-25. (5-105) Payment of transportation and subsistence costs.

If a person returned to this state is found not to have violated the law that constituted the basis for the return, the magistrate may order the county or state to pay the person the cost of transportation and subsistence to:

  1. The place of the person’s initial arrest; or
  2. The person’s residence.

Source:

S.L. 1985, ch. 364, § 25.

29-30.3-26. Payment of expenses.

When the charged offense is a felony, the expenses of returning the demanded person to this state must be paid out of the state treasury, on the certificate of the governor and warrant of the county auditor and in all other cases they must be paid out of the county treasury in the county in which the crime is alleged to have been committed. The expenses are the fees paid to the officers of the state under sections 44-08-04 and 54-06-09.

Source:

S.L. 1987, ch. 395, § 2.

CHAPTER 29-31 Confiscation of Equipment Used in Commission of Crime [Repealed]

[Repealed by S.L. 1991, ch. 346, § 3]

Cross-References.

As to present provisions relating to the forfeiture and disposition of property obtained by law enforcement agencies, see Chapter 29-31.1.

CHAPTER 29-31.1 Property Forfeiture and Disposition

29-31.1-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Forfeitable property” means any of the following:
    1. Property that is illegally possessed or is contraband.
    2. Property that has been used or is intended to be used to facilitate the commission of a criminal offense or to avoid detection or apprehension of a person committing a criminal offense. For purposes of this subdivision, property does not include a residence or other real estate where a co-owner, whether by joint tenancy, tenancy in common, or tenancy by the entireties, of the residence or other real estate, has not been convicted of the criminal offense that was facilitated by the use or intended use of the property.
    3. Property that is acquired as or from the proceeds of a criminal offense.
    4. Property offered or given to another as an inducement for the commission of a criminal offense.
    5. A vehicle or other means of transportation used in the commission of a felony, the escape from the scene of the commission of a felony, or in the transportation of property that is the subject matter of a felony.
    6. Personal property used in the theft of livestock or the transportation of stolen livestock.
  2. “Seized property” means property taken or held by any law enforcement agency in the course of that agency’s official duties with or without the consent of the person, if any, who had possession or a right to possession of the property at the time it was taken into custody.
  3. “Seizing agency” is the law enforcement agency that has taken possession of or seized property in the course of that agency’s official duties.

Source:

S.L. 1991, ch. 346, § 2.

Notes to Decisions

Appeal by State.

In a forfeiture case, the State had a statutory right to appeal a district court's order because this statute allowed the State to appeal an order granting the return of property; moreover, the State properly appealed because the State Attorney's statement satisfied both prongs of this statute, asserting the purpose of the appeal was not to delay and the property was substantial proof of a fact material in a criminal proceeding. State v. Horning, 2016 ND 10, 873 N.W.2d 920, 2016 N.D. LEXIS 10 (N.D. 2016).

Construction with Other Law.

The “promptness” requirement in N.D.C.C. § 19-03.1-36 does not apply to forfeiture proceedings under this chapter. State v. Koble, 2000 ND 29, 606 N.W.2d 521, 2000 N.D. LEXIS 30 (N.D. 2000).

Due Process.

Although the promptness requirement in N.D.C.C. § 19-03.1-36 does not apply to proceedings under this chapter, and although pending criminal proceedings do not toll the application of the Due Process Clause to commencement of civil forfeiture proceedings, where the money was held as evidence for trial and the time between the end of trial and the institution of forfeiture proceedings was short, there was no constitutional due process violation. State v. Koble, 2000 ND 29, 606 N.W.2d 521, 2000 N.D. LEXIS 30 (N.D. 2000).

Because district court erred in its due process analysis of whether a claimant’s due process rights had been violated by a delay in the forfeiture of items seized as evidence for his criminal trial and because findings of fact were inadequate to provide an understanding of the basis used to reach its decision, case was remanded for a new hearing. State v. Bergstrom, 2006 ND 45, 710 N.W.2d 407, 2006 N.D. LEXIS 44 (N.D. 2006).

Forfeitable Property.
—Vehicles.

The general ground for forfeiting property used to facilitate a crime does not apply to a vehicle; a vehicle can be forfeited only for the specified reason of use in a felony. State v. One 1990 Chevrolet Pickup, 523 N.W.2d 389, 1994 N.D. LEXIS 225 (N.D. 1994).

—Computers.

Ordering forfeiture and the destruction of defendant's laptop and portable hard drive was not error where the term property subject to forfeiture under N.D.C.C. § 29-31.1-01(1)(a) and (b) included non-contraband computer files as well as contraband computer files contained on an electronic device. State v. Kremer, 2018 ND 61, 907 N.W.2d 403, 2018 N.D. LEXIS 60 (N.D. 2018).

—Gaming Devices.

Ordering forfeiture and the destruction of two gaming devices was error where the basis was that the devices enabled defendant to access the Internet, he had not been denied access to the Internet for the remainder of his life, and there was no authority for the proposition that the possibility a defendant might have used otherwise unforfeitable property in an unlawful manner after completion of his criminal sentence rendered the property forfeitable. State v. Kremer, 2018 ND 61, 907 N.W.2d 403, 2018 N.D. LEXIS 60 (N.D. 2018).

Supreme Court of North Dakota agrees with the federal courts which have addressed the issue and concludes the term property subject to forfeiture under N.D.C.C. § 29-31.1-01(1)(a) and (b) includes non-contraband computer files as well as contraband computer files contained on an electronic device. State v. Kremer, 2018 ND 61, 907 N.W.2d 403, 2018 N.D. LEXIS 60 (N.D. 2018).

29-31.1-02. Disposition of nonforfeitable property.

Seized property that is not required as evidence or for use in an investigation may be returned to the owner without the requirement of a hearing, if the person’s possession of the property is not prohibited by law, the property is not forfeitable property, and there is no forfeiture proceeding filed on behalf of the seizing agency. The seizing agency shall send notice by regular mail, if the value of the property is less than two hundred fifty dollars, or certified mail, if the value of the property is equal to or greater than two hundred fifty dollars, to the last-known address of any person having an ownership or possessory right in the property stating that the property is released and must be claimed within thirty days. Notice is deemed to have been made upon the mailing of the notice. The notice must state that if no written claim for the property is made upon the seizing agency within thirty days after the mailing of the notice, the property will be deemed abandoned and disposed of accordingly. If there is more than one party who may assert a right to possession or ownership of the property, the seizing agency may not release the property to any party until the expiration of the date for filing claims unless all other claimants execute a written waiver. If there is more than one claim filed for the return of property under this section, at the expiration of the period for filing claims the seizing agency shall file a copy of all such claims with the clerk of the district court and deposit the property with the court in accordance with the provisions of chapter 32-11. If no owner can be located or no claim is filed under this section, the property is deemed abandoned and the seizing agency becomes the owner of the property and may dispose of it in any reasonable manner.

Source:

S.L. 1991, ch. 346, § 2; 2009, ch. 282, § 1.

29-31.1-03. Seizure of forfeitable property.

Forfeitable property may be seized whenever and wherever the property is found within this state. Forfeitable property may be seized by taking custody of the property or by serving upon the person in possession of the property a notice of forfeiture and seizure. If the court finds that the forfeiture is warranted, an order transferring ownership to the seizing agency must be entered and the property must be delivered to the seizing agency for disposition as directed by the court. Property that has been seized for forfeiture, and is not already secured as evidence in a criminal case, must be safely secured or stored by the agency that caused its seizure.

Source:

S.L. 1991, ch. 346, § 2.

29-31.1-04. Forfeiture proceedings.

  1. Forfeiture is a civil proceeding not dependent upon a prosecution for, or conviction of, a criminal offense and forfeiture proceedings are separate and distinct from any related criminal action.
  2. Forfeiture proceedings brought under this chapter must be conducted in accordance with the procedures established for the forfeiture of property in sections 19-03.1-36.1 through 19-03.1-36.7.

Source:

S.L. 1991, ch. 346, § 2.

Notes to Decisions

Criminal Conviction Not a Prerequisite.

Neither a criminal charge nor a criminal conviction of a felony is a prerequisite to civil forfeiture of the vehicle used in that felony. State v. One 1990 Chevrolet Pickup, 523 N.W.2d 389, 1994 N.D. LEXIS 225 (N.D. 1994).

Law Reviews.

Constitutional Issues in North Dakota Asset Forfeiture Law After Austin v. United States, Alexander v. United States, and United States v. Good Real Property, 70 N.D. L. Rev. 851 (1994).

29-31.1-05. Transfer of forfeitable property.

Title to, and responsibility for, forfeitable property vests with the seizing agency at the time of the seizure. Once forfeitable property is seized, no right to the property may be transferred by anyone other than the seizing agency unless the seizure and forfeiture is declared by the court to be a nullity or as otherwise ordered by the court.

Source:

S.L. 1991, ch. 346, § 2.

29-31.1-06. Disposition of forfeited property.

When property is forfeited under this chapter, the seizing agency may:

  1. Retain the property for official use or transfer the custody or ownership of any forfeited property to any federal, state, or local agency.
  2. Sell the forfeited property that is not required to be destroyed by law and which is not harmful to the public. The proceeds from the sale, together with any monetary funds ordered to be forfeited, must be used first for the payment of all proper costs and expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs with any remaining proceeds to be deposited, subject to section 54-12-14, in the appropriate state, county, or city general fund.
  3. Dispose of the property in accordance with the order of the court if the property cannot be retained, used, or sold by the seizing agency.

Source:

S.L. 1991, ch. 346, § 2.

29-31.1-07. Nonforfeitable interest — Purchase of forfeitable interest.

  1. Property may not be forfeited under this chapter to the extent of an interest of an owner who had no part in the commission of the crime and who had no knowledge of the criminal use or intended use of the property. However, if it is established that the owner permitted the use of the property under circumstances in which a reasonable person should have inquired into the intended use of the property and that the owner failed to do so, there is a rebuttable presumption that the owner knew that the property was intended to be used in the commission of a crime.
  2. Upon receipt of forfeited property, the seizing agency shall permit any owner or lienholder of record having a nonforfeitable property interest in the property the opportunity to purchase the property interest forfeited. If the owner or lienholder does not exercise the option under this subsection within sixty days of mailing of written notice to such person of such option, the option is terminated unless the time for exercising the option is extended by the seizing agency.
  3. A person having a valid, recorded lien or property interest in forfeited property, which has not been repurchased pursuant to subsection 2, must either be reimbursed to the extent of the nonforfeitable property interest or to the extent of the amount raised by the sale of the item, whichever amount is less. The sale of forfeited property must be conducted in a manner that is commercially reasonable and calculated to provide a sufficient return to cover the cost of the sale and reimburse any nonforfeitable interest. The validity of a lien or property interest is determined as of the date the property is seized. All costs and expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs, must be first deducted from the sale proceeds and paid to the party incurring such costs and expenses.
  4. This section does not preclude a civil suit by an owner of an interest in forfeited property against the party who, by criminal use, caused the property to become forfeited to the seizing agency.

Source:

S.L. 1991, ch. 346, § 2.

29-31.1-08. Retention of forfeited property.

If property forfeitable under this chapter is needed as evidence in a criminal proceeding, it must be retained under the control of the prosecuting attorney, or the prosecuting attorney’s designee, until such time as its use as evidence is no longer required.

Source:

S.L. 1991, ch. 346, § 2.

29-31.1-09. Disposition of forfeitable property held as evidence in criminal proceeding.

Notwithstanding other provisions of this chapter, in the case of forfeitable property seized and held as evidence of the commission of a criminal offense, the court in which a criminal prosecution was commenced may issue its order, upon motion and after hearing unless waived, for disposition of the property in accordance with this chapter. Notice of the motion must be served in accordance with the North Dakota Rules of Civil Procedure upon the owner and all persons known to be claiming an interest in the property to be forfeited. The notice must be served at least twenty days before a hearing on the motion unless the time period is waived by all parties claiming an interest in the property. The motion must contain the information required in a complaint as set forth in section 19-03.1-36.3. Although no separate forfeiture proceeding is required to be instituted under this section, all other provisions of this chapter apply to proceedings commenced pursuant to this section.

Source:

S.L. 1991, ch. 346, § 2.

Notes to Decisions

Appeal by State.

In a forfeiture case, the State had a statutory right to appeal a district court's order because this statute allowed the State to appeal an order granting the return of property; moreover, the State properly appealed because the State Attorney's statement satisfied both prongs of this statute, asserting the purpose of the appeal was not to delay and the property was substantial proof of a fact material in a criminal proceeding. State v. Horning, 2016 ND 10, 873 N.W.2d 920, 2016 N.D. LEXIS 10 (N.D. 2016).

District court's order denying the forfeiture of $16,420 in U.S. currency seized by law enforcement during a traffic stop relied on an erroneous application of the law and was not supported by the evidence. The State's evidence established a probable basis for finding the property was forfeitable drug money, but defendant did not rebut the presumption of forfeiture. State v. Horning, 2016 ND 151, 882 N.W.2d 247, 2016 N.D. LEXIS 155 (N.D. 2016).

Interest in Property.

In a forfeiture case, a purported owner had an interest in a large sum of money because it was found in his pocket and inside of a cooler in the car he was driving. The cooler contained the cash, the owner's cell phone, and title to a car he had purchased. State v. Horning, 2016 ND 10, 873 N.W.2d 920, 2016 N.D. LEXIS 10 (N.D. 2016).

29-31.1-10. Inapplicability of chapter.

The provisions of this chapter do not apply to forfeiture proceedings commenced under other specific provisions of law, including chapters 12.1-06.1, 19-03.1, and 20.1-10.

Source:

S.L. 1991, ch. 346, § 2.

Collateral References.

Forfeiture of homestead based on criminal activity conducted on premises—state cases, 16 A.L.R.5th 855.

CHAPTER 29-32 Uniform Postconviction Procedure Act [Repealed]

[Repealed by S.L. 1985, ch. 366, § 16]

CHAPTER 29-32.1 Uniform Postconviction Procedure Act

29-32.1-01. Remedy — To whom available — Conditions.

  1. A person who has been convicted of and sentenced for a crime may institute a proceeding applying for relief under this chapter upon the ground that:
    1. The conviction was obtained or the sentence was imposed in violation of the laws or the Constitution of the United States or of the laws or Constitution of North Dakota;
    2. The conviction was obtained under a statute that is in violation of the Constitution of the United States or the Constitution of North Dakota, or that the conduct for which the applicant was prosecuted is constitutionally protected;
    3. The court that rendered the judgment of conviction and sentence was without jurisdiction over the person of the applicant or the subject matter;
    4. The sentence is not authorized by law;
    5. Evidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice;
    6. A significant change in substantive or procedural law has occurred which, in the interest of justice, should be applied retrospectively;
    7. The sentence has expired, probation or parole or conditional release was unlawfully revoked, or the applicant is otherwise unlawfully in custody or restrained; or
    8. The conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error available before July 1, 1985, under any common law, statutory or other writ, motion, proceeding, or remedy.
  2. Except as provided in subsection 3, an application for relief under this chapter must be filed within two years of the date the conviction becomes final. A conviction becomes final for purposes of this chapter when:
    1. The time for appeal of the conviction to the North Dakota supreme court expires;
    2. If an appeal was taken to the North Dakota supreme court, the time for petitioning the United States supreme court for review expires; or
    3. If review was sought in the United States supreme court, the date the supreme court issues a final order in the case.
    1. Notwithstanding subsection 2, a court may consider an application for relief under this chapter if:
      1. The petition alleges the existence of newly discovered evidence, including DNA evidence, which if proved and reviewed in light of the evidence as a whole, would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted;
      2. The petitioner establishes that the petitioner suffered from a physical disability or mental disease that precluded timely assertion of the application for relief; or
      3. The petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States supreme court or a North Dakota appellate court and the petitioner establishes that the interpretation is retroactively applicable to the petitioner’s case.
    2. An application under this subsection must be filed within two years of the date the petitioner discovers or reasonably should have discovered the existence of the new evidence, the disability or disease ceases, or the effective date of the retroactive application of law.
  3. A proceeding under this chapter is not a substitute for and does not affect any remedy incident to the prosecution in the trial court or direct review of the judgment of conviction or sentence in an appellate court. Except as otherwise provided in this chapter, a proceeding under this chapter replaces all other common law, statutory, or other remedies available before July 1, 1985, for collaterally challenging the validity of the judgment of conviction or sentence. It is to be used exclusively in place of them. A proceeding under this chapter is not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence.

Source:

S.L. 1985, ch. 366, § 1; 2013, ch. 248, § 1.

Note.

In light of the similarity of the subject matter, decisions under former chapter 29-32 are included in the annotations for this section.

Cross-References.

New trial rule not to affect remedies provided by this chapter, see N.D.R.Crim.P., Rule 33(e).

Notes to Decisions

Claims Arising Out of Custodial Treatment.

District court did not err in denying a prisoner’s application for postconviction relief based upon the prisoner’s claim that his failure to receive hepatitis treatment while in prison warranted a reduction in his sentence to time served, as the provisions governing postconviction relief are expressly unavailable to seek relief for an inmate’s custodial treatment after he is incarcerated. There were other avenues of relief available for the prisoner’s claims. Rahn v. State, 2007 ND 121, 736 N.W.2d 488, 2007 N.D. LEXIS 110 (N.D. 2007).

District court properly denied defendant’s application for post-conviction relief because the North Dakota Department of Corrections and Rehabilitation had exclusive discretion to determine whether he should be credited with a performance-based sentence reduction, and the statute at issue was not available to provide relief for disciplinary measures, custodial treatment, or other violations of civil rights of a convicted person occurring after the imposition of sentence, and the second amended judgment expressly provided that defendant was to be given credit for the 307 days he was held in custody prior to sentencing. Comes v. State, 2021 ND 107, 961 N.W.2d 270, 2021 N.D. LEXIS 112 (N.D. 2021).

Newly discovered evidence.

District court did not err by failing to consider appellant’s claim of actual innocence because appellant did not allege any newly discovered evidence in his “actual innocence claim” in his application for post-conviction relief; by failing to allege in his application that he had newly discovered evidence, appellant failed to raise a genuine issue of material fact. Atkins v. State, 2021 ND 83, 959 N.W.2d 588, 2021 N.D. LEXIS 79 (N.D. 2021).

Newly discovered evidence.

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because he failed to provide competent evidence to support his claims; the district court concluded petitioner’s application was filed beyond the two-year statute of limitations, he failed to supplement it with competent evidence to support his allegation that the State failed to disclose evidence, and newly discovered DNA evidence would not establish he did not engage in the criminal conduct. Friesz v. State, 2022 ND 22, 2022 N.D. LEXIS 17 (N.D. 2022).

Deprivation of Good Time Credits.

Where federal habeas petitioner challenged deprivation of good time credits, petitioner had no state remedy under N.D.C.C. § 29-32.1-01 as post-conviction relief is not available for this type of claim; however, petitioner had not exhausted all available state remedies where he did not bring his habeas petition before the North Dakota Supreme Court. Alex v. Schuetzle, 2006 U.S. Dist. LEXIS 67969 (D.N.D. June 5, 2006).

Evidence in Record.

Appellant who contends that he was denied due process because he was not given adequate notice of the time and date of his trial must suffer the consequences of any lack of evidence in the record, when he made no attempt to supplement it. State v. Lawyer, 395 N.W.2d 153, 1986 N.D. LEXIS 427 (N.D. 1986).

Evidence Not Previously Presented and Heard.

A request for post-conviction relief based on evidence not previously presented and heard is similar to a request for a new trial based on newly discovered evidence under N.D.R.Crim.P., Rule 33, and requires the same showing to obtain a new trial. Breding v. State, 1998 ND 170, 584 N.W.2d 493, 1998 N.D. LEXIS 176 (N.D. 1998).

Court did not err in failing to grant petitioner a new trial based on newly discovered evidence in the form of recanted statements where the police had substantial evidence implicating petitioner in the conspiracy case other than the statements of the witnesses. In addition, petitioner failed to prove that the original statements were not accurate, nor did he prove that it was probable that he would get an acquittal in the event of a retrial. Greywind v. State, 2004 ND 213, 689 N.W.2d 390, 2004 N.D. LEXIS 356 (N.D. 2004).

A request for post-conviction relief based on evidence not previously presented and heard is similar to a request for a new trial based on newly discovered evidence under N.D.R.Crim.P., Rule 33, and requires the same showing to obtain a new trial. Greywind v. State, 2004 ND 213, 689 N.W.2d 390, 2004 N.D. LEXIS 356 (N.D. 2004).

The trial court properly denied defendant’s application for post-conviction relief under N.D.C.C. 29-32.1-01(1)(e) where evidence of misconduct that could have been used to impeach the doctor who examined defendant did not constitute newly discovered evidence; the information about the doctor’s background had previously been published, was publicly disseminated and easily accessible and, therefore, defendant failed to establish that the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence. Syvertson v. State, 2005 ND 128, 699 N.W.2d 855, 2005 N.D. LEXIS 166 (N.D. 2005).

District court properly exercised its discretion in denying a petitioner’s request for postconviction relief because, although the petitioner alleged that he was suffering from post-traumatic stress disorder, and this was newly discovered evidence, even if a hearing were held, the outcome would not have been changed. Moreover, the petitioner never had a trial; rather, he entered a guilty plea and, the petitioner failed to show manifest injustice for withdrawal of the guilty plea. Moore v. State, 2007 ND 96, 734 N.W.2d 336, 2007 N.D. LEXIS 103 (N.D. 2007).

It was not an abuse of discretion to summarily deny an inmate’s application for post-conviction relief because the inmate had over two years to produce competent, admissible evidence supporting the inmate’s claim that the inmate had evidence requiring vacation of the inmate’s conviction, but the inmate failed to do so. Davis v. State, 2013 ND 34, 827 N.W.2d 8, 2013 N.D. LEXIS 27 (N.D. 2013).

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because petitioner failed to establish a genuine issue of material fact regarding her claim for newly discovered evidence; while the newly discovered evidence of the subsequent convictions of the State’s expert witness could have provided material for cross-examination, the weight and quality of that evidence would not result in petitioner’s acquittal at trial. Lindsey v. State, 2014 ND 174, 852 N.W.2d 383, 2014 N.D. LEXIS 175 (N.D. 2014).

Evidentiary Rulings and Pretrial Proceedings.

Trial court correctly denied application for post-conviction relief which contained issues relating to evidentiary rulings and pretrial proceedings; such issues do not fall within the conditions upon which post-conviction relief may be granted under this section. Owens v. State, 1998 ND 106, 578 N.W.2d 542, 1998 N.D. LEXIS 110 (N.D. 1998).

Ineffective Assistance of Counsel.
—Generally.

Generally, an ineffective-assistance-of-counsel claim is more effectively presented in a post-conviction-relief proceeding than an appeal because the court in those proceedings is the court before which the trial was held. State v. Ricehill, 415 N.W.2d 481, 1987 N.D. LEXIS 436 (N.D. 1987).

Although the issue of ineffectiveness of counsel may be raised in a motion to withdraw a guilty plea, it is more effectively determined through the State v. Bowers, 426 N.W.2d 293, 1988 N.D. LEXIS 164 (N.D. 1988).

Generally, ineffective assistance of counsel claims are most effectively presented in proceedings for post-conviction relief pursuant to chapter 29-32.1. However, when defective assistance of counsel is urged on direct appeal, Supreme Court will review the entire record, and if it cannot readily determine that assistance of counsel was plainly defective and there exist no other grounds for reversal, then defendant can later pursue his claim at a post-conviction proceeding where an adequate record can be developed. State v. Sayler, 443 N.W.2d 915, 1989 N.D. LEXIS 148 (N.D. 1989).

Our state and federal constitutions guarantee criminal defendants the right to reasonably effective assistance of counsel; consequently, ineffective assistance of counsel is one ground for relief from a criminal conviction under our post-conviction procedure act. Woehlhoff v. State, 487 N.W.2d 16, 1992 N.D. LEXIS 145 (N.D. 1992).

Where, from its review of the record on appeal, the appellate court could not conclude that defendant’s trial counsel was ineffective, it affirmed his judgment of conviction without prejudice to his right to raise a claim of ineffective assistance of counsel in an appropriate post-conviction proceeding. State v. Robertson, 502 N.W.2d 249, 1993 N.D. LEXIS 140 (N.D. 1993).

—Raising Issue of Ineffective Assistance.

In most instances, the issue of ineffective assistance of counsel should be raised before the trial court and a hearing held. Woehlhoff v. State, 487 N.W.2d 16, 1992 N.D. LEXIS 145 (N.D. 1992).

Trial court’s determination that all of the issues the petitioner raised in his application for postconviction relief had already been raised in his previous appeal was error, because the petitioner’s claims of ineffective assistance of his trial and appellate counsel had never been addressed, and the merit of the petitioner’s claim, that had counsel raised the issue of lack of probable cause to support a nighttime search there was a reasonable probability the evidence against him would have been suppressed, was never considered. Roth v. State, 2006 ND 106, 713 N.W.2d 513, 2006 N.D. LEXIS 102 (N.D. 2006).

—Relief Denied.

The trial court did not err in denying application for post-conviction relief from defendant’s sentence on grounds of ineffective assistance of counsel. DeCoteau v. State, 504 N.W.2d 552, 1993 N.D. LEXIS 157 (N.D. 1993).

Counsel was not ineffective in his investigation of defendant’s case for failure to interview two important witnesses where there was substantial other evidence implicating defendant in the crimes and defendant admitted to committing the crimes. Greywind v. State, 2004 ND 213, 689 N.W.2d 390, 2004 N.D. LEXIS 356 (N.D. 2004).

Although defendant argued that he was denied access to relevant information by his trial attorney, his evidentiary hearing attorney, and the Department of Corrections, he did not raise these issues in his initial application for post-conviction relief or his amended application for post-conviction relief; further, defendant did not explain how failure to provide him with a set of the crime scene photographs constituted ineffective assistance of counsel. Klose v. State, 2005 ND 192, 705 N.W.2d 809, 2005 N.D. LEXIS 227 (N.D. 2005).

Denial of postconviction relief was affirmed because the petitioner’s conclusory allegations that counsel failed to call certain witnesses did not support a claim of ineffective assistance of counsel where the petitioner did not present affidavits from the additional witnesses nor did he have the witnesses testify at his postconviction hearing, and the petitioner’s testimony as to what the witnesses might have said was not sufficient evidence as to what the witnesses would say. Matthews v. State, 2005 ND 202, 706 N.W.2d 74, 2005 N.D. LEXIS 243 (N.D. 2005).

Where defendant failed to supply any competent evidence showing an issue of material fact under N.D.C.C. § 29-32.1-09(1), his failure to appropriately respond to the State’s motion was fatal and the trial court’s dismissal of his motion for post-conviction relief alleging ineffective assistance of counsel was appropriate. Dunn v. State, 2006 ND 26, 709 N.W.2d 1, 2006 N.D. LEXIS 35 (N.D. 2006).

Postconviction relief was denied in a case where defendant alleged that he received ineffective assistance of counsel because the decisions were mostly based on a defense strategy, such as the failure to call a handwriting expert and the failure to request a mistrial. Moreover, a motion to change venue would have been futile, and testimony regarding intent would have been irrelevant since that was not an element of the crimes charged. Noorlun v. State, 2007 ND 118, 736 N.W.2d 477, 2007 N.D. LEXIS 118 (N.D. 2007).

Defendant’s second application for postconviction relief was denied because there was no claim for ineffective assistance of counsel on appeal since defendant represented himself; moreover, he failed to meet the requisite showing of ineffectiveness pertaining to his first application for postconviction relief. Defendant did not show that the alleged errors of counsel were prejudicial or that the outcome would have been different without those alleged errors. Steen v. State, 2007 ND 123, 736 N.W.2d 457, 2007 N.D. LEXIS 121 (N.D. 2007).

Petition for postconviction relief was properly denied because petitioner’s attorneys were not ineffective for not requesting or reviewing a transcript of a probable cause hearing during which an officer provided the judge with incorrect information supporting the complaint. Odom v. State, 2010 ND 65, 780 N.W.2d 666, 2010 N.D. LEXIS 62 (N.D.), cert. denied, 562 U.S. 906, 131 S. Ct. 251, 178 L. Ed. 2d 166, 2010 U.S. LEXIS 6844 (U.S. 2010).

District court properly denied petitioner's application for postconviction relief because he failed to establish he was prejudiced by the allegedly deficient performance of his counsel; petitioner presented no evidence that would support a finding of prejudice on his claim that he was not properly advised on how the plea agreement could affect his desire to be sentenced to the Teen Challenge program because the court indicated he would not be sentenced to the program if sentenced after trial. Booth v. State, 2017 ND 97, 893 N.W.2d 186, 2017 N.D. LEXIS 100 (N.D. 2017).

District court properly denied petitioner's application for postconviction relief because he failed to establish he was prejudiced by the allegedly deficient performance of his counsel, and the district court applied the correct standard; petitioner offered nothing but subjective speculation and self-serving statements that he would not have pleaded guilty and would have insisted on going to trial, and he voluntarily pleaded guilty. Booth v. State, 2017 ND 97, 893 N.W.2d 186, 2017 N.D. LEXIS 100 (N.D. 2017).

—Test for Ineffective Assistance of Counsel.

There is a two-part test for allegedly ineffective assistance of counsel. First, a defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A defendant must demonstrate both deficient representation by counsel and prejudice caused by the deficient representation. Woehlhoff v. State, 487 N.W.2d 16, 1992 N.D. LEXIS 145 (N.D. 1992).

Judicial Precedent.

District court did not err finding a recanting witness's statements were not material to the issues at trial and would not likely result in an acquittal. The district court did not err in denying appellant's claim of newly discovered evidence and dismissing his application for post-conviction relief. Addai v. State, 2017 ND 98, 893 N.W.2d 480, 2017 N.D. LEXIS 99 (N.D. 2017).

Before the U.S. Supreme Court issued its decision in Birchfield v. North Dakota, an individual could be criminally prosecuted for refusing a warrantless blood test, but after Birchfield, the State has no authority to punish an individual for that same conduct. Therefore, the Birchfield rule is substantive and applied retroactively in a case in which petitioner sought to vacate a criminal conviction for refusal to submit to a chemical test in 2014. Morel v. State, 2018 ND 141, 912 N.W.2d 299, 2018 N.D. LEXIS 148 (N.D. 2018).

Jurisdiction.

Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in municipal courts in North Dakota, because municipal courts were not courts of record. Jurisdiction to adjudicate applications for post-conviction relief was designed to be vested in courts of general jurisdiction such as the district courts. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

Newly Discovered Evidence.

Postconviction relief was properly summarily dismissed on a claim of newly discovered evidence because, even though some of the requirements were satisfied, the applicant failed to establish that the weight and quality of the newly discovered evidence would have likely resulted with an acquittal at trial; in addition to the overwhelming evidence against the applicant, the independent physical evidence suggested that much of the testimony was not fabricated. Wacht v. State, 2015 ND 154, 864 N.W.2d 740, 2015 N.D. LEXIS 161 (N.D. 2015).

Petitioner did not provide competent, admissible, newly discovered evidence sufficient to grant an evidentiary hearing, did not show an abuse of discretion in the district court’s order summarily dismissing his application for post-conviction before ruling on his discovery motions, and the legality of an anticipatory search warrant issued for his criminal conviction could not be challenged at this stage of post-conviction relief. Chatman v. State, 2018 ND 77, 908 N.W.2d 724, 2018 N.D. LEXIS 83 (N.D. 2018).

District court did not err in denying an application for postconviction relief on the basis of newly discovered evidence where, contrary to petitioner’s arguments, a receipt did not show that the timeline of the charged incidents was inaccurate in light of the victim’s testimony, and even if had been admitted, it was not inconsistent with the evidence that another trip was when the first instances of sexual assault occurred. Kovalevich v. State, 2018 ND 184, 915 N.W.2d 644, 2018 N.D. LEXIS 190 (N.D. 2018).

Defendant was not entitled to post-conviction relief based on newly discovered evidence because (1) text messages were not newly discovered, as defendant’s mother possessed the messages, defendant’s failure to learn about the messages was due to a lack of diligence, and the messages’ weight and quality was unlikely to result in an acquittal, and (2) sexual assault kit results were not newly discovered, as counsel most likely provided the results to defendant before trial. State v. Atkins, 2019 ND 145, 928 N.W.2d 441, 2019 N.D. LEXIS 148 (N.D. 2019).

Plea Agreements.
—Failure to Comply.

A sentence that does not comply with a promise made in a plea bargain agreement is illegal, and the defendant would be entitled to post-conviction relief to challenge the sentence. DeCoteau v. State, 504 N.W.2d 552, 1993 N.D. LEXIS 157 (N.D. 1993).

—Misstatement by Prosecutor.

Defendant could not rely upon an isolated misstatement by the prosecutor during plea bargain negotiations that “we would recommend that the sentences run concurrently,” where the context made clear that that was not intended or understood by anyone present. DeCoteau v. State, 504 N.W.2d 552, 1993 N.D. LEXIS 157 (N.D. 1993).

Prison Discipline.

Trial court lacked jurisdiction in a postconviction proceeding where defendant sought to enjoin the use of certain prison disciplinary procedures because such an issue was not cognizable, pursuant to N.D.C.C. § 29-32.1-01(2). Steen v. State, 2007 ND 123, 736 N.W.2d 457, 2007 N.D. LEXIS 121 (N.D. 2007).

Ripe for Review.

Although the Supreme Court agreed that petitioner's claim for post-conviction relief was not time-barred, it concluded that petitioner's appeal from the circuit court's order summarily dismissing his post-conviction relief petition bore arguments which were not ripe for review. There was no actual controversy until petitioner was denied a parole hearing after he showed he was eligible under his original sentencing terms. Comes v. State, 2018 ND 54, 907 N.W.2d 393, 2018 N.D. LEXIS 63 (N.D. 2018).

Sufficiency of Showing.

Denial of post-conviction relief was proper when (1) an inmate failed to show selective prosecution; (2) there was no authority that post-conviction relief was available for pretrial bail orders; (3) the inmate did not specify how and where his trial counsel was incompetent or establish a reasonable probability that, but for his attorney’s asserted errors, the result of the proceeding would have been different; and (4) the inmate provided no support for his remaining claims. McMorrow v. State, 2003 ND 134, 667 N.W.2d 577, 2003 N.D. LEXIS 151 (N.D. 2003).

Where appellant pled guilty to indecent exposure and was sentenced to 12 months in prison, appellant’s complaint that female prison guards watched him shower and that the State should therefore be estopped from complaining of his conduct did not support his position that his conviction should be reversed. Appellant’s conviction for indecent exposure was affirmed as he failed to establish any legal basis for relief under the Post-Conviction Procedure Act or under N.D.R.Crim.P. 35. State v. Ernst, 2006 ND 41, 710 N.W.2d 678, 2006 N.D. LEXIS 42 (N.D.), cert. denied, 549 U.S. 847, 127 S. Ct. 89, 166 L. Ed. 2d 80, 2006 U.S. LEXIS 6601 (U.S. 2006).

Court properly denied petitioner’s motion for new trial because, even if a witness’s statement were admitted into evidence and jurors inferred that a third party struck the victim outside petitioner’s presence, petitioner would still likely have been found guilty of murder. The witness’s statement did not demonstrate that petitioner’s actions were clearly insufficient to cause the victim’s death, and did not eliminate petitioner’s culpability for the murder Tweed v. State, 2010 ND 38, 779 N.W.2d 667, 2010 N.D. LEXIS 42 (N.D. 2010).

Court properly denied petitioner’s motion for new trial because petitioner failed to establish that a witness’s testimony was likely to result in an acquittal because petitioner failed to produce any evidence as to what the testimony would have been, and due to that failure, the district court found that petitioner failed to establish entitlement to post-conviction relief on the basis of the witness’s availability. Tweed v. State, 2010 ND 38, 779 N.W.2d 667, 2010 N.D. LEXIS 42 (N.D. 2010).

Trial court properly denied appellant’s application for postconviction relief, where there was a sufficient factual basis to support appellant’s guilty plea for possession of a controlled substance with intent to deliver. In addition to the amount of methamphetamine (80 grams), the trial court had items such as pay-owe sheets, scales, shipping documents, and plastic bags that police officers believed were for repackaging methamphetamine. Eaton v. State, 2011 ND 35, 793 N.W.2d 790, 2011 N.D. LEXIS 28 (N.D.), cert. denied, 565 U.S. 847, 132 S. Ct. 166, 181 L. Ed. 2d 79, 2011 U.S. LEXIS 6281 (U.S. 2011).

Denial of postconviction relief was proper, because at the change of plea hearing the court found the State’s offer of proof established an adequate factual basis for the charge and proved the petitioner was likely to be convicted if his case proceeded to trial, and the petitioner failed to show he received ineffective assistance of counsel, when counsel took adequate steps to ensure the petitioner understood the proceedings, including meeting with the petitioner on a number of occasions, reading documents to the petitioner and discussing the nature of the case and the plea offers with the petitioner. Kooser v. State, 2012 ND 101, 816 N.W.2d 802, 2012 N.D. LEXIS 100 (N.D. 2012).

Denial of post-conviction relief was proper, because an administrative rule delineated JWH-018 1-Pentyl-3 (1-naphthoyl) indole (JWH-018) as a prohibited controlled substance when petitioner committed the alleged acts, the administrative rule had force and effect of law upon becoming effective, and subsequent codification of JWH-018 as a prohibited controlled substance did not invalidate the effect of the final administrative rule. Haag v. State, 2012 ND 241, 823 N.W.2d 749, 2012 N.D. LEXIS 246 (N.D. 2012).

It was an abuse of discretion to deny an inmate's N.D. R. Civ. P. 60(b) motion to reopen a post-conviction relief application because, (1) although the application had been dismissed without prejudice, it was effectively dismissed with prejudice, since it was subject to a new two-year statute of limitations, so the dismissal was a final order for purposes of N.D. R. Civ. P. 60(b), (2) the motion was filed under prior law, (3) the trial court considered matters outside the application when considering prior post-conviction relief motions, (4) the court did not give the inmate notice that the inmate was being put to the inmate's proof or a chance to submit evidence of a genuine material fact issue, and (4) the N.D. R. Civ. P. 60(b) motion and appeal were timely. Riak v. State, 2015 ND 120, 863 N.W.2d 894, 2015 N.D. LEXIS 116 (N.D. 2015).

Time Limits.

District court properly dismissed defendant’s petition for post-conviction relief summarily because he did not file it within the statutory two year time-limit, his second petition was filed after the amendments were in effect, there was no express intention that the amendments were to be applied retroactively, defendant raised the issue of ineffective assistance of counsel in his first petition for post-conviction relief, and he was not trying to file a habeas petition in federal court. Lehman v. State, 2014 ND 103, 847 N.W.2d 119, 2014 N.D. LEXIS 100 (N.D. 2014).

District court did not err in dismissing defendant's application for post-conviction relief because, while defendant responded to the district court's request to address the timeliness of the application and argued that it did not apply retroactively, he did not argue that the court could not raise the issue on its own, that the State waived the defense by failing to raise it in its motion for summary dismissal, or that any of the statutory exceptions applied. Moe v. State, 2015 ND 93, 862 N.W.2d 510, 2015 N.D. LEXIS 92 (N.D. 2015).

District court properly dismissed petitioner's application for post-conviction relief because it was barred by the statute of limitations; petitioner failed to establish an exception to the two-year filing limit because he did not show that a new interpretation of statutory law applied to his case. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

In a case in which petitioner appealed from a district court orders summarily dismissing his application for post-conviction relief and his motion for new trial, petitioner's application, which was filed within the two-year limitations period, was timely under N.D.C.C. § 29-32.1-01(2), and the district court erred with its contrary conclusion. Eagleman v. State, 2016 ND 54, 877 N.W.2d 1, 2016 N.D. LEXIS 57 (N.D. 2016).

District court properly denied defendant's application for post-conviction relief the application was statutorily required to be filed within two years of the effective date of the appellate court decision announcing the new interpretation of federal or state law, defendant's application for post-conviction relief was not filed within two years of his conviction becoming final or within two years of the effective date of the decision in State v. Borner, 2013 ND 141, 836 N.W.2d 383, 2013 N.D. LEXIS 151 (N.D. 2013). Hieb v. State, 2016 ND 146, 882 N.W.2d 724, 2016 N.D. LEXIS 147 (N.D. 2016).

District court properly summarily dismissed defendant’s application for post-conviction relief because his application was untimely and he failed to show how he would fall under any of three exceptions to the statute of limitations where the evidence of his upbringing in Russia and his psychological examinations was known to the court and all parties at the time of entering the pleas, he failed to present any evidence that his mental condition precluded timely assertion of his application, and he provided no clear authority that would retroactively apply to his case. Carlson v. State, 2018 ND 81, 908 N.W.2d 711, 2018 N.D. LEXIS 86 (N.D. 2018).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Uniform Post-Conviction Procedure Act was intended to replace the habeas corpus statutes insofar as persons arrested for or convicted of criminal violations are concerned; the act does not unconstitutionally restrict the right to habeas corpus since the post-conviction statutes are not less favorable to the accused than the habeas corpus provisions. Legislature’s failure to repeal habeas corpus statutes was attributed to fact they remained applicable to civil matters. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975); Bushaw v. Havener, 247 N.W.2d 62, 1976 N.D. LEXIS 159 (N.D. 1976).

Failure to Arraign.

Fact that defendant was not arraigned in open court before his second trial after his first trial conviction was reversed, did not constitute grounds for post-conviction relief where there was no claim that he was not properly arraigned before the first trial; no objection was made regarding the lack of a formal arraignment; and the trial judge, in his chambers and in the presence of counsel, asked defendant for his plea and defendant entered not guilty pleas to the charges. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Failure to Raise Issue.

Defendant’s failure to raise an issue on his first post-conviction relief application due to a lack of legal knowledge was not a “sufficient reason” to allow him to raise that issue on a subsequent post-conviction relief application. State v. Lueder, 267 N.W.2d 555, 1978 N.D. LEXIS 133 (N.D. 1978).

Where a prior conviction was not vacated until after defendant had applied for post-conviction relief, there was “sufficient reason” why defendant had not asserted issue that it was improper for court to consider that conviction in sentencing for conviction of another crime, and defendant was entitled to raise that issue in a subsequent post-conviction proceeding. State v. Lueder, 267 N.W.2d 555, 1978 N.D. LEXIS 133 (N.D. 1978).

Failure to Take to Magistrate.

Failure to take defendant to the nearest or most accessible magistrate in the county where the arrest is made, as required by section 29-06-25, does not, in itself, entitle defendant to post-conviction relief in the absence of a showing that he was deprived of a fair trial or was otherwise prejudiced as a result of the error. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Issues Adjudicated.

Issues finally adjudicated in a direct appeal from the conviction cannot be raised in a post-conviction proceeding. State v. Manke, 361 N.W.2d 247, 1985 N.D. LEXIS 247 (N.D. 1985).

N.D.R.Crim.P., Rule 35(a).

The remedy under N.D.R.Crim.P., Rule 35(a) which provides that the sentencing court may correct an illegal sentence at any time, and the Uniform Post-Conviction Procedure Act proceeding, which is also available to collaterally attack a sentence where it exceeds the maximum authorized by law, coexist for similar purposes as to illegal sentences. State v. Nace, 371 N.W.2d 129 (N.D. 1985), decided prior to the enactment of N.D.C.C. § 12.1-32-06.1.

A remedy under N.D.R.Crim.P., Rule 35(a), to challenge an illegal sentence was not “heretofore available for challenging the validity of the … sentence” in North Dakota, which is the scope of exclusiveness of the Uniform Post-Conviction Procedure Act. State v. Nace, 371 N.W.2d 129 (N.D. 1985), decided prior to the enactment of N.D.C.C. § 12.1-32-06.1.

Preliminary Hearing.

The right of a person arrested without a warrant to be taken before the nearest and most accessible magistrate of the county where he was arrested is not constitutional but purely statutory (section 29-06-25), and where the record establishes that the person was lawfully arrested and taken to the adjacent county where the offense for which he was arrested was triable and the following morning was taken before a magistrate who set bail, he was not, after conviction of the offense for which he was arrested, entitled to post-conviction relief on ground of noncompliance with statute granting preliminary hearing. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

Polygraph Test.

Where prisoner voluntarily took polygraph test and indicated to the parole board that he would rely on its results, and where the adjustment committee and the parole board, in denying parole, did not rely solely on the polygraph test results, but also considered the incident report, the investigative report, and prisoner’s statement concerning the incident, consideration by the adjustment committee and the parole board of the polygraph test results did not constitute a denial of prisoner’s due-process rights. Varnson v. Satran, 368 N.W.2d 533, 1985 N.D. LEXIS 323 (N.D. 1985).

Procedure.

The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant; proceedings under the Act are civil in nature, and all rules and statutes applicable in civil proceedings are available to the parties. State v. Skjonsby, 417 N.W.2d 818, 1987 N.D. LEXIS 449 (N.D. 1987).

Sufficiency of Showing.

The sufficiency of the showing necessary to obtain a new trial based on newly discovered evidence is the same whether the ground is raised in a motion for new trial or in an application for post-conviction relief. State v. Schlickenmayer, 364 N.W.2d 108, 1985 N.D. LEXIS 273 (N.D. 1985).

The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant. State v. Kunkel, 366 N.W.2d 799, 1985 N.D. LEXIS 312 (N.D. 1985).

Waiver of Counsel.

Waiver of counsel involves constitutional questions appropriately reviewable by postconviction relief. State v. Gustafson, 278 N.W.2d 358, 1979 N.D. LEXIS 176 (N.D. 1979).

Waiver of Preliminary Examination.

Where the defendant entered a plea of not guilty to information without having moved to quash information on ground he was denied statutory right of a preliminary examination, he waived that right and could not raise it for first time in post-conviction proceeding. State v. Rudolph, 193 N.W.2d 237, 1971 N.D. LEXIS 101 (N.D. 1971).

Withdrawal of Pleas.

Defendants were entitled to postconviction relief to have their guilty pleas withdrawn where there was confusion surrounding the pleas concerning the year in which the charged offense of unauthorized use of a vehicle was committed and the identity of the vehicle involved; defendants did not receive copies of the complaint before pleading and the complaint was amended after entry of guilty pleas without affording defendants an opportunity to plead to the amended complaint; and statements, undisclosed to the court at the time of pleading and sentencing, made by the state to the defendants prior to pleading and sentencing, could have been considered promises by the state to recommend a particular sentence which were not fulfilled by the state. State v. Gustafson, 278 N.W.2d 358, 1979 N.D. LEXIS 176 (N.D. 1979).

The voluntariness of a guilty plea is reviewable by post-conviction relief. State v. Gustafson, 278 N.W.2d 358, 1979 N.D. LEXIS 176 (N.D. 1979).

Comparative Legislation.

North Dakota appears to have been the first state to enact the 1980 Post-Conviction Procedure Act.

The revised Uniform Post-Conviction Procedure Act was approved in 1980 by the National Conference of Commissioners on Uniform State Laws.

Jurisdictions which have enacted the 1966 Uniform Post-Conviction Procedure Act include:

Idaho Code §§ 19-4901 to 19-4911.

Iowa Code §§ 663A.1 to 663A.11.

Md. Ann. Code art. 27, §§ 645A to 645J.

Minn. Stat. §§ 590.01 to 590.06.

Mont. Code Ann. §§ 46-21-101 to 46-21-203.

Nev. Rev. Stat. §§ 177.315 to 177.385.

Okla. Stat. tit. 22, §§ 1080 to 1089.

Or. Rev. Stat. §§ 138.510 to 138.680.

R.I. Gen. Laws §§ 10-9.1-1 to 10-9.1-9.

S.C. Code Ann. §§ 17-27-10 to 17-27-120.

S.D. Codified Laws 1967, § 23-52-1 et seq.

29-32.1-02. Exercise of original jurisdiction in habeas corpus.

A court in which original jurisdiction in habeas corpus is vested may entertain a habeas corpus proceeding under chapter 32-22 or this chapter. This chapter, to the extent appropriate, governs the proceeding.

Source:

S.L. 1985, ch. 366, § 2.

DECISIONS UNDER PRIOR LAW

Analysis

Constitutionality.

Section 2 of the 1966 Act is permissive; district court acted within its discretion in refusing application for writ of habeas corpus on ground it should have been filed in district of petitioner’s conviction rather than district of his confinement; the Uniform Act is not unconstitutionally restrictive insofar as it affects the venue of district courts. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

Effect of Act.

The Uniform Post-Conviction Procedure Act was never intended to create a new remedy to wholly replace habeas corpus and the other common-law writs. Rather, the Uniform Act creates a procedure which implements the writ of habeas corpus and provides an opportunity for more extensive development of the issues and a more complete record for review. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Review in Supreme Court.

The appeal provisions of former chapter 29-32 were a cumulative, and not a superseding, remedy, and the right of the people to invoke the original jurisdiction of the supreme court in habeas corpus was still viable. Thus, an unsuccessful applicant for post-conviction relief could seek appellate review pursuant to former section 29-32-09 or could petition the supreme court for an original writ of habeas corpus. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Standard of Review.

In an appeal from a judgment under the Uniform Post-Conviction Procedure Act, the supreme court applies the “clearly erroneous” standard of N.D.R.Civ.P., Rule 52(a) in reviewing fact questions. Rule 52(a) is inapplicable in original habeas corpus proceedings, and the supreme court reviews the record de novo. Thus, the court’s review of fact issues is more liberal under its original habeas corpus jurisdiction than it would be in an appeal under the Uniform Act. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

29-32.1-03. Commencement of proceedings — Filing — Service.

  1. A proceeding is commenced by filing an application with the clerk of the court in which the conviction and sentence took place. The state must be named as respondent. No filing fee is required.
  2. An application may be filed at any time.
  3. If an application is filed before the time for appeal from the judgment of conviction or sentence has expired, the court, on motion of the applicant, may extend the time for appeal until a final order has been entered in the proceeding under this chapter.
  4. If an application is filed while an appeal or other review is pending, the appellate court, on motion of either party or on its own motion, may defer further action on the appeal or other review until the determination of the application by the trial court or may order the application certified and consolidated with the pending appeal or other review.
  5. Upon receipt of an application, the clerk shall forthwith file it, make an entry in the appropriate docket, and deliver a copy to the state’s attorney of the county in which the criminal action was venued.
  6. If the applicant is not represented by counsel, the clerk shall notify the applicant that assistance of counsel may be available to persons unable to obtain counsel. The clerk shall also inform the applicant of the procedure for obtaining counsel.
  7. The application may be considered by any judge of the court in which the conviction took place.

Source:

S.L. 1985, ch. 366, § 3.

Notes to Decisions

Assistance of Counsel.

The obligation of the clerk to notify the petitioner that assistance of counsel may be available and to inform the petitioner of the procedure for obtaining counsel is mandatory. State v. DeCoteau, 464 N.W.2d 605, 1990 N.D. LEXIS 255 (N.D. 1990).

The failure of the clerk to notify petitioner that assistance of counsel may be available and to inform him of the procedure for obtaining counsel affected petitioner’s statutory right to such information and constituted reversible error. State v. DeCoteau, 464 N.W.2d 605, 1990 N.D. LEXIS 255 (N.D. 1990).

The district court clerk’s failure to advise a post-conviction relief applicant of her right to apply for counsel and the procedure for obtaining counsel warranted reversal of the dismissal of her application for post-conviction relief. Greybull v. State, 2000 ND 8, 604 N.W.2d 440, 2000 N.D. LEXIS 8 (N.D. 2000).

Defendant’s motion requesting the trial court to appoint counsel was an affirmative action indicating actual knowledge of the right to apply, and given this evidence of actual knowledge, it was not necessary to reverse and remand for the clerk of district court to provide defendant with notice. Crumley v. State, 2000 ND 110, 611 N.W.2d 165, 2000 N.D. LEXIS 107 (N.D. 2000).

Change of Judge.

N.D.C.C. § 29-15-21 does not apply to post-conviction proceedings under this chapter. Falcon v. State, 1997 ND 200, 570 N.W.2d 719, 1997 N.D. LEXIS 248 (N.D. 1997).

Jurisdiction.

Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in municipal courts in North Dakota, because municipal courts are not courts of record. The requirements of N.D.C.C. § 29-32.1-03 that the State be named as respondent, a copy of the application be delivered to the state’s attorney, and the State answer the application, all indicate post-conviction relief under N.D.C.C. ch. 29-32.1 exists only in the district court, not in the municipal court. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Requirement that individual petition district court in district of conviction, rather than in district of confinement, is a reasonable regulation and constitutionally permissible; it is not a restriction on the constitutional right to habeas corpus. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

Petition to District Court.

Petitions for relief in the nature of habeas corpus should normally be directed to the court in the district of conviction; the right to petition supreme court for habeas corpus in exercise of its original jurisdiction is preserved but the court may decline to exercise its jurisdiction if the petition can be, but has not been, made to the district court. McGuire v. Warden of State Farm (State Penitentiary), 229 N.W.2d 211, 1975 N.D. LEXIS 194 (N.D. 1975).

29-32.1-04. Application — Contents.

  1. The application must identify the proceedings in which the applicant was convicted and sentenced, give the date of the judgment and sentence complained of, set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary.
  2. The application must identify all proceedings for direct review of the judgment of conviction or sentence and all previous postconviction proceedings taken by the applicant to secure relief from the conviction or sentence, the grounds asserted therein, and the orders or judgments entered. The application must refer to the portions of the record of prior proceedings pertinent to the alleged grounds for relief. If the cited record is not in the files of the court, the applicant shall attach that record or portions thereof to the application or state why it is not attached. Affidavits or other material supporting the application may be attached, but are unnecessary.

Source:

S.L. 1985, ch. 366, § 4.

Notes to Decisions

Dismissal.

Post-conviction relief application was improperly dismissed on a trial court’s own motion under N.D.C.C. § 29-32.1-06(2) because it was not impossible for an applicant to prove a claim upon which relief could have been granted; ineffectiveness of trial counsel was a ground for granting relief that generally could not have been summarily decided. Although the trial court had the inherent authority to summarily dismiss an application on its own initiative, there had to be no dispute as to the material facts or the inferences to be drawn from the undisputed facts before a dismissal could have been entered pursuant to N.D.C.C. § 29-32.1-09; the trial court did not comply with the requirements of N.D.R.Civ.P. 56 and N.D.C.C. § 29-32.1-09(1) because the applicant was not given notice and an opportunity to respond and submit evidence before dismissal. Wong v. State, 2010 ND 219, 790 N.W.2d 757, 2010 N.D. LEXIS 214 (N.D. 2010).

It was not an abuse of discretion to summarily deny an inmate’s application for post-conviction relief because the inmate had over two years to produce competent, admissible evidence supporting the inmate’s claim that the inmate had evidence requiring vacation of the inmate’s conviction, but the inmate failed to do so. Davis v. State, 2013 ND 34, 827 N.W.2d 8, 2013 N.D. LEXIS 27 (N.D. 2013).

District court erred in summarily dismissing defendant's application for post-conviction relief because defendant raised reasonable inferences creating a genuine issue of material fact regarding his counsel's trial performance with respect to the use of a surveillance video and was entitled to an evidentiary hearing inasmuch as what the video depicted was a disputed fact, defendant's specific references to the transcript and the video were both competent admissible evidence, and, if the video showed what defendant alleged, it could have been used to rebut or impeach the testimony of the alleged victim of one of the terrorizing charges and perhaps bolster defendant's own testimony. Horvath v. State, 2018 ND 24, 905 N.W.2d 734, 2018 N.D. LEXIS 14 (N.D. 2018).

Evidentiary Support.

Where an application for post-conviction relief is not frivolous, it is improper for trial court to summarily deny the application before the defendant is afforded an opportunity to provide evidentiary support for the allegations in the application. State v. Bender, 1998 ND 72, 576 N.W.2d 210, 1998 N.D. LEXIS 76 (N.D. 1998).

Post-conviction relief was properly denied in a case alleging ineffectiveness of counsel because appellant applicant did not present any affidavits or supporting materials after the State requested summary disposition; moreover, he did not inform the district court that he had witnesses to present. If the applicant thought that the district court denied him the opportunity to present testimony, an offer of proof should have been made under N.D.R.Ev. 103(a) Ude v. State, 2009 ND 71, 764 N.W.2d 419, 2009 N.D. LEXIS 75 (N.D. 2009).

Defendant's post-conviction relief motion, alleging ineffective assistance of counsel and prosecutorial misconduct, was properly denied by summary disposition because (1) the application had to refer to the portions of the record pertinent to the alleged grounds for relief, but the grounds for relief relied solely on unsupported, conclusory allegations, and, (2) after the State moved for summary disposition, it was defendant's burden to present competent, admissible evidence capable of raising issues of material fact, which was not met. Howard v. State, 2015 ND 102, 863 N.W.2d 203, 2015 N.D. LEXIS 111 (N.D. 2015).

District court erred in summarily denying defendant's application for post-conviction relief and his subsequent motion for reconsideration because defendant alleged his counsel failed to zealously represent him during his criminal proceeding and plea agreement, which was a genuine issue of material fact, and the district court erred as a matter of law in considering information outside the pleading without allowing defendant to file a brief with supporting materials. Greywind v. State, 2015 ND 231, 869 N.W.2d 746, 2015 N.D. LEXIS 243 (N.D. 2015).

Records.

Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in municipal courts in North Dakota, because municipal courts were not courts of record under N.D.C.C. § 27-01-01 and N.D.C.C. ch. 29-32.1 refers to the record below in N.D.C.C. §§ 29-32.1-04(2), 29-32.1-10(1), (2). If an appeal from municipal court directly to the Supreme Court was proper, review would be impossible because of the lack of a record; therefore, the municipal court judgment denying petitioner’s application for post-conviction relief was void. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

DECISIONS UNDER PRIOR LAW

Verification.

Failure by petitioner in his petition to swear affirmatively to the truth of the facts contained in his petition would not affect consideration of the material contained therein where it was signed before an officer authorized to administer oaths, who certified that the petition was subscribed and sworn before him. State v. Lueder, 252 N.W.2d 861, 1977 N.D. LEXIS 266 (N.D. 1977).

Law Reviews.

North Dakota Supreme Court Review (Delvo v. State), see 86 N.D. L. Rev. 437 (2010).

29-32.1-05. Counsel at public expense — Applicant’s inability to pay costs and litigation expenses.

  1. If an applicant requests counsel and the court is satisfied that the applicant is indigent, counsel shall be provided at public expense to represent the applicant.
  2. Costs and expenses incident to a proceeding under this chapter, including fees for counsel provided at public expense, must be reimbursed in the same manner as are costs and expenses incurred in the defense of criminal prosecutions.

Source:

S.L. 1985, ch. 366, § 5; 2007, ch. ch. 119, § 16.

Notes to Decisions

Discretion of Court.

The actual appointment of counsel remains discretionary with the court pursuant to the requirements of this section. State v. DeCoteau, 464 N.W.2d 605, 1990 N.D. LEXIS 255 (N.D. 1990).

The appointment of counsel is discretionary, but applications for court-appointed counsel should be read in a light most favorable to the applicant, and if a substantial issue of law or fact may exist, counsel should be appointed. Woehlhoff v. State, 531 N.W.2d 566, 1995 N.D. LEXIS 87 (N.D. 1995).

Although the Supreme Court would not reverse the trial court’s refusal to appoint counsel for defendant seeking post-conviction relief, the Supreme Court directed the trial court to reconsider its denial in view of the Supreme Court’s remand for an evidentiary hearing for defendant’s claim of ineffective assistance of counsel. DeCoteau v. State, 1998 ND 199, 586 N.W.2d 156, 1998 N.D. LEXIS 214 (N.D. 1998).

The trial court did not abuse its discretion by denying the defendant’s request for post-conviction counsel where defendant’s challenge to his sentence failed to raise a substantial issue of fact or law and was completely without merit. Crumley v. State, 2000 ND 110, 611 N.W.2d 165, 2000 N.D. LEXIS 107 (N.D. 2000).

Transcript.

When an indigent defendant has demonstrated a particularized need entitling him to a free transcript, a court reporter or recorder must provide a transcript as needed and ordered by the court. The cost of producing the transcript is covered in the same way as in a criminal proceeding. Phillips v. State, 2014 ND 10, 841 N.W.2d 731, 2014 N.D. LEXIS 10 (N.D. 2014).

DECISIONS UNDER PRIOR LAW

Discretion of Court.

The appointment of an attorney to assist an indigent post-conviction relief applicant is discretionary; however, trial judges ordinarily would be well advised to appoint counsel for most indigent applicants and should appoint counsel where the indigent applicant is unable to file any application without assistance or where, reading the application in a light most favorable to the applicant, a substantial issue of law or fact may exist. State v. McMorrow, 332 N.W.2d 232, 1983 N.D. LEXIS 278 (N.D. 1983).

Refusal to Appoint Attorney.

Trial court properly denied indigent applicant’s request for appointment of an attorney to assist him in postconviction relief proceedings where he was able to file his application for postconviction relief without assistance and his application, read most favorably toward him, did not raise the possibility of a substantial issue of fact or law. State v. McMorrow, 332 N.W.2d 232, 1983 N.D. LEXIS 278 (N.D. 1983).

Trial court did not abuse its discretion in refusing to appoint counsel to assist petitioner in postconviction relief proceeding, and supreme court refused to appoint counsel to assist him on appeal, where, viewing the record and application in a light most favorable to petitioner, his allegations were completely without merit. State v. Cook, 344 N.W.2d 487, 1984 N.D. LEXIS 253 (N.D. 1984).

29-32.1-06. Response by answer or motion.

  1. Within thirty days after the docketing of an application or within any further time the court may allow, the state shall respond by answer or motion.
  2. The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.
  3. The following defenses may be raised by answer or motion:
    1. The claim has been fully and finally determined in a previous proceeding in accordance with subsection 1 of section 29-32.1-12; or
    2. The application constitutes misuse of process in accordance with subsection 2 of section 29-32.1-12.

Source:

S.L. 1985, ch. 366, § 6.

Notes to Decisions

Dismissal.

Trial court properly dismissed the petitioner’s application for post-conviction release when he failed to show an excuse for not presenting seven of his claims for relief in the proceeding leading to the conviction. Steinbach v. State, 2003 ND 46, 658 N.W.2d 355, 2003 N.D. LEXIS 46 (N.D. 2003).

The Rules of Civil Procedure are applicable to actions under the post-conviction relief act and, since matters outside the pleadings were raised by the State in its motion to dismiss petitioner’s motion for post-conviction relief, the rule governing summary judgment motions was applicable. Because petitioner was not given 30 days in which to respond to the State’s brief as required by N.D.R.Civ.P., Rule 56(c), the trial court’s judgment dismissing the inmate’s application for post-conviction relief pursuant to N.D.C.C. § § 29-32.1-06(2) and 29-32.1-09 was reversed. Kaiser v. State, 2005 ND 49, 693 N.W.2d 26, 2005 N.D. LEXIS 60 (N.D. 2005).

Post-conviction relief application was improperly dismissed on a trial court’s own motion under N.D.C.C. § 29-32.1-06(2) because it was not impossible for an applicant to prove a claim upon which relief could have been granted; ineffectiveness of trial counsel was a ground for granting relief that generally could not have been summarily decided. Although the trial court had the inherent authority to summarily dismiss an application on its own initiative, there had to be no dispute as to the material facts or the inferences to be drawn from the undisputed facts before a dismissal could have been entered pursuant to N.D.C.C. § 29-32.1-09; the trial court did not comply with the requirements of N.D.R.Civ.P. 56 and N.D.C.C. § 29-32.1-09(1) because the applicant was not given notice and an opportunity to respond and submit evidence before dismissal. Wong v. State, 2010 ND 219, 790 N.W.2d 757, 2010 N.D. LEXIS 214 (N.D. 2010).

Summary disposition on defendant's claim for ineffective assistance of counsel was appropriate because defendant provided no affidavits or other comparable evidence to satisfy defendant's burden of presenting competent admissible evidence to raise an issue of material fact on defendant's claim of ineffective assistance of counsel. Accordingly, defendant failed to raise a genuine issue of material fact showing that counsel's representation fell below an objective standard of reasonableness in the context of defendant's guilty plea. Stewart v. State, 2017 ND 77, 891 N.W.2d 727, 2017 N.D. LEXIS 68 (N.D. 2017).

State's response to a postconviction application was timely under N.D.C.C. § 29-32.1-06 where the 30th day from the date of docketing fell on a Saturday, the following Monday was a legal holiday, service was made electronically, which added three days to the N.D. R. Civ. P. 6(a) period, and with those additional days, the response was timely. Koenig v. State, 2018 ND 59, 907 N.W.2d 344, 2018 N.D. LEXIS 42 (N.D. 2018).

Even if the State's response to petitioner's application for postconviction relief was untimely, N.D.C.C. § 29-32.1-06 gave the district court discretion to give additional time to respond, and petitioner failed to show any real prejudice due to the delayed response. Koenig v. State, 2018 ND 59, 907 N.W.2d 344, 2018 N.D. LEXIS 42 (N.D. 2018).

Dismissing an inmate’s post-conviction relief application alleging ineffective assistance of counsel erred because, whether or not the State submitted anything outside the pleadings to support the State’s summary disposition motion, the inmate’s allegations, construed in the light most favorable to the inmate, stated a claim upon which relief could be granted and did not show it was impossible for the to prove the claim. Burden v. State, 2019 ND 178, 930 N.W.2d 619, 2019 N.D. LEXIS 182 (N.D. 2019).

Failure to Respond.

Failure of the State to respond within thirty days after the application was docketed, although serious and distressing, does not entitle the petitioner to a default judgment. Bell v. State, 1998 ND 35, 575 N.W.2d 211, 1998 N.D. LEXIS 33 (N.D. 1998).

Although the State did not timely respond to petitioner’s application for post-conviction relief, the district court reviewed all of the transcripts from his prior proceedings involving his guilty plea and found no merit to his application. Likewise, petitioner failed to show he suffered any prejudice by the State’s failure to timely respond; the 30-day time period for the State to respond under N.D.C.C. § 29-32.1-06(1) was not mandatory, and it was not an abuse of discretion for the district court to deny petitioner’s request for default judgment. Gamboa v. State, 2005 ND 48, 693 N.W.2d 21, 2005 N.D. LEXIS 51 (N.D. 2005).

District court did not err in denying appellant’s motion for default judgment on the basis that the State failed to respond to his January 26, 2005, application for post-conviction relief until April 8, 2005. N.D.C.C. § 29-32.1-06(1) only required the State to respond to a motion for post-conviction relief within 30 days or within any further time the court allowed. State v. Raulston, 2005 ND 212, 707 N.W.2d 464, 2005 N.D. LEXIS 267 (N.D. 2005).

Sufficiency of Motion.

State is required to make at least a cursory review of the record, and point out to the trial court how petitioner’s allegations were unsupported by the record. Vandeberg v. State, 2003 ND 71, 660 N.W.2d 568, 2003 N.D. LEXIS 89 (N.D. 2003).

29-32.1-07. Amended and supplemental pleadings.

  1. The court may make appropriate orders allowing amendment of the application or any pleading or motion, allowing further pleadings or motions, or extending the time for filing any pleading.
  2. At any time before the entry of judgment, the court, for good cause, may grant leave to withdraw the application without prejudice.

Source:

S.L. 1985, ch. 366, § 7.

29-32.1-08. Discovery.

The court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed.

Source:

S.L. 1985, ch. 366, § 8.

Notes to Decisions

Appeals.

Petitioner did not provide competent, admissible, newly discovered evidence sufficient to grant an evidentiary hearing, did not show an abuse of discretion in the district court’s order summarily dismissing his application for post-conviction before ruling on his discovery motions, and the legality of an anticipatory search warrant issued for his criminal conviction could not be challenged at this stage of post-conviction relief. Chatman v. State, 2018 ND 77, 908 N.W.2d 724, 2018 N.D. LEXIS 83 (N.D. 2018).

Failure to Conduct Discovery.

When a petitioner for postconviction relief sought DNA testing of evidence 30 years after his conviction, the clerk of court’s testimony regarding the existing evidence was sufficient to establish a prima facie case under N.D.C.C. § 29-32.1-15(2)(b), but the petitioner was unable to show that the remaining evidence for which he requested testing, apart from its having been received at trial, was subject to a sufficient chain of custody or was even still in existence. The supreme court concluded the petitioner did not establish a prima facie case under N.D.C.C. § 29-32.1-15(2)(b); the petitioner had the opportunity to conduct discovery under N.D.C.C. § 29-32.1-08 to locate the missing evidence, but there was no evidence indicating he did so, and he was unable to seek that remedy on appeal. Olson v. State, 2008 ND 113, 750 N.W.2d 459, 2008 N.D. LEXIS 114 (N.D. 2008).

Failure to Obtain Records.

Although this section permits discovery in post-conviction proceedings upon order of the court or agreement of the parties, where former husband did not attempt to use this procedure to obtain the records he claimed would prove his assertions and because he failed to present evidence of what those records would show, Supreme Court could not conclude trial counsel’s failure to obtain and present them prejudiced him; the evidence did not establish that, but for counsel’s failure to obtain these records, there was a reasonable probability the result of the trial would have been different. Mertz v. State, 535 N.W.2d 834, 1995 N.D. LEXIS 160 (N.D. 1995).

Failure to Show Good Cause.

It was not an abuse of discretion to deny an inmate’s motion to depose a witness to obtain new evidence supporting the inmate’s application for post-conviction relief because, after seven months, counsel could not secure minimal evidence to support the inmate’s speculative, unsubstantiated assertion that the witness had evidence a State’s witness lied at the inmate’s trial. Davis v. State, 2013 ND 34, 827 N.W.2d 8, 2013 N.D. LEXIS 27 (N.D. 2013).

It was not an abuse of discretion to deny an inmate’s motion to depose a witness to obtain new evidence supporting the inmate’s application for post-conviction relief because (1) the evidence was found after trial, (2) the inmate could have discovered the witness before or during trial and elicited a statement, and, (3) while the evidence was material, the weight and quality of the evidence would not likely result in an acquittal, as other evidence undercut the inmate’s assertion that the evidence would show the inmate acted in self-defense. Davis v. State, 2013 ND 34, 827 N.W.2d 8, 2013 N.D. LEXIS 27 (N.D. 2013).

Opposing Party.

The party opposing summary judgment motion may not merely rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. Mertz v. State, 535 N.W.2d 834, 1995 N.D. LEXIS 160 (N.D. 1995).

The party opposing a motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Mertz v. State, 535 N.W.2d 834, 1995 N.D. LEXIS 160 (N.D. 1995).

Subpoenas.

Order granting the State’s motion to dismiss defendant’s application for postconviction relief was upheld where defendant presented no competent evidence to meet even a minimal burden of demonstrating a material fact issue of juror misconduct; the trial court did not err in failing to issue subpoenas for defendant to support the claim of juror misconduct. Wheeler v. State, 2008 ND 109, 750 N.W.2d 446, 2008 N.D. LEXIS 110 (N.D. 2008).

Collateral References.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Weapons. 53 A.L.R.6th 81.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Personal Items Other Than Weapons. 55 A.L.R.6th 391.

29-32.1-09. Summary disposition.

  1. The court, on its own motion, may enter a judgment denying a meritless application on any and all issues raised in the application before any response by the state. The court also may summarily deny a second or successive application for similar relief on behalf of the same applicant and may summarily deny any application when the issues raised in the application have previously been decided by the appellate court in the same case.
  2. The court, on its own motion, may dismiss any grounds of an application which allege ineffective assistance of postconviction counsel. An applicant may not claim constitutionally ineffective assistance of postconviction counsel in proceedings under this chapter.
  3. The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.
  4. If an evidentiary hearing is necessary, the court may determine which issues of material fact are in controversy and appropriately restrict the hearing.

Source:

S.L. 1985, ch. 366, § 9; 2013, ch. 248, § 2.

Notes to Decisions

Ineffective Assistance of Postconviction Counsel.

District court did not err in dismissing appellant’s claim for ineffective assistance of postconviction counsel because that claim was barred under N.D.C.C. § 29-32.1-09(2). Chisholm v. State, 937 N.W.2d 520, 2020 N.D. LEXIS 8 (N.D. 2020), overruled in part, Van Chase v. State, 2021 ND 206, 966 N.W.2d 557, 2021 N.D. LEXIS 201 (N.D. 2021).

Defendant’s motion for reconsideration raised claims relating to the effectiveness of defendant’s counsel in earlier post-conviction proceedings. Thus, the district court did not err in denying defendant’s post-conviction relief application, titled as a motion for reconsideration, because defendant was precluded from claiming ineffective assistance of post-conviction counsel, and the district court could dismiss any grounds of an application which alleged ineffective assistance of postconviction. Atkins v. State, 2021 ND 34, 955 N.W.2d 109, 2021 N.D. LEXIS 23 (N.D. 2021).

Summary disposition appropriate.

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because he failed to provide competent evidence to support his claims; the district court concluded petitioner’s application was filed beyond the two-year statute of limitations, he failed to supplement it with competent evidence to support his allegation that the State failed to disclose evidence, and newly discovered DNA evidence would not establish he did not engage in the criminal conduct. Friesz v. State, 2022 ND 22, 2022 N.D. LEXIS 17 (N.D. 2022).

Summary disposition appropriate.

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because the alleged in his application were or could have been raised in prior proceedings and were therefore barred. Friesz v. State, 2022 ND 22, 2022 N.D. LEXIS 17 (N.D. 2022).

No Genuine Issue.

Denial of postconviction relief was proper, because the plea agreement the petitioner signed included the information about which the petitioner argued he was not informed, and any failure to advise the petitioner of the potential for future sentence enhancement if he committed another offense was merely a collateral consequence of his convictions. Waslaski v. State, 2013 ND 56, 828 N.W.2d 787, 2013 N.D. LEXIS 54 (N.D. 2013).

Summary Disposition Appropriate.

District court properly dismissed defendant’s petition for post-conviction relief summarily because he did not file it within the statutory two year time-limit, his second petition was filed after the amendments were in effect, there was no express intention that the amendments were to be applied retroactively, defendant raised the issue of ineffective assistance of counsel in his first petition for post-conviction relief, and he was not trying to file a habeas petition in federal court. Lehman v. State, 2014 ND 103, 847 N.W.2d 119, 2014 N.D. LEXIS 100 (N.D. 2014).

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because the failure of petitioner’s attorney to raise an issue of first impression on an unsettled question of law in North Dakota did not constitute ineffective assistance of counsel. Olsen v. State, 2014 ND 173, 852 N.W.2d 372, 2014 N.D. LEXIS 172 (N.D. 2014).

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because petitioner failed to establish a genuine issue of material fact regarding her claim for ineffective assistance of counsel; the district court followed the mandates for accepting a guilty plea, and petitioner entered a voluntary plea and acknowledged that she was waiving her rights in addition to her lack of criminal responsibility defense. Lindsey v. State, 2014 ND 174, 852 N.W.2d 383, 2014 N.D. LEXIS 175 (N.D. 2014).

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because petitioner failed to establish a genuine issue of material fact regarding her claim for newly discovered evidence; while the newly discovered evidence of the subsequent convictions of the State’s expert witness could have provided material for cross-examination, the weight and quality of that evidence would not result in petitioner’s acquittal at trial. Lindsey v. State, 2014 ND 174, 852 N.W.2d 383, 2014 N.D. LEXIS 175 (N.D. 2014).

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because petitioner failed to establish a genuine issue of material fact regarding her claim for prosecutorial misconduct; petitioner waived the right to challenge any non-jurisdictional defects, including constitutional rights, occurring before the entry of her guilty plea, and she knew of a potential evidentiary issue when she pleaded guilty. Lindsey v. State, 2014 ND 174, 852 N.W.2d 383, 2014 N.D. LEXIS 175 (N.D. 2014).

Summary dismissal of an application for postconviction relief based on claims of ineffective assistance of counsel was proper under the doctrine of res judicata because the issues had been raised in a direct appeal. Wacht v. State, 2015 ND 154, 864 N.W.2d 740, 2015 N.D. LEXIS 161 (N.D. 2015).

Postconviction relief was properly summarily dismissed on a claim of newly discovered evidence because, even though some of the requirements were satisfied, the applicant failed to establish that the weight and quality of the newly discovered evidence would have likely resulted with an acquittal at trial; in addition to the overwhelming evidence against the applicant, the independent physical evidence suggested that much of the testimony was not fabricated. Wacht v. State, 2015 ND 154, 864 N.W.2d 740, 2015 N.D. LEXIS 161 (N.D. 2015).

Summary disposition on defendant's claim for ineffective assistance of counsel was appropriate because defendant provided no affidavits or other comparable evidence to satisfy defendant's burden of presenting competent admissible evidence to raise an issue of material fact on defendant's claim of ineffective assistance of counsel. Accordingly, defendant failed to raise a genuine issue of material fact showing that counsel's representation fell below an objective standard of reasonableness in the context of defendant's guilty plea. Stewart v. State, 2017 ND 77, 891 N.W.2d 727, 2017 N.D. LEXIS 68 (N.D. 2017).

District court did not err by summarily dismissing defendant's application for post-conviction relief because he did not meet his minimal burden of supporting his application with competent, admissible evidence raising an issue of material fact. Atkins v. State, 2017 ND 290, 904 N.W.2d 738, 2017 N.D. LEXIS 299 (N.D. 2017).

Because the district court found petitioner's speedy trial rights were not violated as a matter of law, and petitioner failed to establish a claim or right to relief, an evidentiary hearing on those issues was unnecessary, and summary dismissal was appropriate. Koenig v. State, 2018 ND 59, 907 N.W.2d 344, 2018 N.D. LEXIS 42 (N.D. 2018).

Petitioner did not provide competent, admissible, newly discovered evidence sufficient to grant an evidentiary hearing, did not show an abuse of discretion in the district court’s order summarily dismissing his application for post-conviction before ruling on his discovery motions, and the legality of an anticipatory search warrant issued for his criminal conviction could not be challenged at this stage of post-conviction relief. Chatman v. State, 2018 ND 77, 908 N.W.2d 724, 2018 N.D. LEXIS 83 (N.D. 2018).

Summary denial of postconviction relief on an ineffective assistance of trial counsel claim was proper as there was no issue of material fact as to petitioner testifying at trial, and since the State’s use of images on presentation slides during closing argument was insufficiently prejudicial to violate due process, failing to preserve the images was not ineffective assistance. Kalmio v. State, 2018 ND 182, 915 N.W.2d 655, 2018 N.D. LEXIS 184 (N.D. 2018).

Although an applicant may allege ineffective assistance of direct appellate counsel in a criminal proceeding, district courts are required to dismiss an applicant’s claims of ineffective assistance of postconviction relief counsel in a Uniform Postconviction Procedure Act proceeding. N.D.C.C. § 29-32.1-09(2). Kalmio v. State, 2018 ND 182, 915 N.W.2d 655, 2018 N.D. LEXIS 184 (N.D. 2018).

District court did not err in summarily disposing of petitioner’s claims that he was not provided with particular information or allowed to submit particular information in the context of his guilty plea where the record clearly and unambiguously demonstrated the contrary. Stein v. State, 2018 ND 264, 920 N.W.2d 477, 2018 N.D. LEXIS 257 (N.D. 2018).

District court did not err in summarily dismissing defendant’s motion for relief from an order denying an application for post-conviction relief because the issue regarding the July 2012 hotel receipt had been previously raised in his April 2017 application for post-conviction relief. Kovalevich v. State, 2019 ND 210, 932 N.W.2d 354, 2019 N.D. LEXIS 215 (N.D. 2019).

District court did not err in summarily dismissing defendant’s November 2018 application for post-conviction relief regarding the February and August 2012 hotel receipts as defendant was aware of the receipts and had complete access to the receipts before trial; he could have raised that issue at trial or at the very latest, in his April 2017 application for post-conviction relief; and those receipts, which defendant argued would impeach the victim’s testimony, would not likely result in an acquittal. Kovalevich v. State, 2019 ND 210, 932 N.W.2d 354, 2019 N.D. LEXIS 215 (N.D. 2019).

District court properly summarily disposed of defendant’s fifth application for post-conviction relief because he did not respond to the State’s assertion that the claims were untimely and barred by res judicata. Wisham v. State, 2020 ND 250, 950 N.W.2d 762, 2020 N.D. LEXIS 246 (N.D. 2020).

Although the district court erred in dismissing appellant’s application for post-conviction relief without giving him notice, the error was harmless because the application made no mention of newly discovered evidence; without even alleging he had new evidence, appellant failed to show he was prejudiced by lack of notice. Atkins v. State, 2021 ND 83, 959 N.W.2d 588, 2021 N.D. LEXIS 79 (N.D. 2021).

District court properly denied appellant’s application for post-conviction relief because it did not err in concluding appellant’s claims had been presented in previous petitions or had been previously decided by the supreme court and were barred by res judicata; appellant had brought repeated applications for relief on the same or similar grounds for the same underlying conviction. Atkins v. State, 2021 ND 83, 959 N.W.2d 588, 2021 N.D. LEXIS 79 (N.D. 2021).

District court reached the correct result applying the doctrine of res judicata prior to the State responding, but for the wrong reason, because when the district court used the term “res judicata,” it should have referred to the authority granted under subsection (1), rather than the affirmative defense statute; subsection (1), expressly allows the district court to consider whether an application for relief is successive, and upon determining it is, to summarily dismiss. Atkins v. State, 2021 ND 83, 959 N.W.2d 588, 2021 N.D. LEXIS 79 (N.D. 2021).

Summary Disposition Inappropriate.

District court erred in summarily dismissing defendant’s application for post-conviction relief because defendant was not provided with notice and an opportunity to present evidence raising a genuine issue of material fact as to his ineffective-assistance-of-counsel claims. Chisholm v. State, 2014 ND 125, 848 N.W.2d 703, 2014 N.D. LEXIS 133 (N.D. 2014).

District court erred in making factual findings on the State’s affirmative defense of laches and in summarily dismissing petitioner’s post-conviction relief application on that ground; however, because the State moved for summary disposition, petitioner was put to her proof, and the burden shifted to her to support her application with evidence raising a genuine issue of material fact. Lindsey v. State, 2014 ND 174, 852 N.W.2d 383, 2014 N.D. LEXIS 175 (N.D. 2014).

It was an abuse of discretion to deny an inmate's N.D. R. Civ. P. 60(b) motion to reopen a post-conviction relief application because, (1) although the application had been dismissed without prejudice, it was effectively dismissed with prejudice, since it was subject to a new two-year statute of limitations, so the dismissal was a final order for purposes of N.D. R. Civ. P. 60(b), (2) the motion was filed under prior law, (3) the trial court considered matters outside the application when considering prior post-conviction relief motions, (4) the court did not give the inmate notice that the inmate was being put to the inmate's proof or a chance to submit evidence of a genuine material fact issue, and (4) the N.D. R. Civ. P. 60(b) motion and appeal were timely. Riak v. State, 2015 ND 120, 863 N.W.2d 894, 2015 N.D. LEXIS 116 (N.D. 2015).

District court erred in summarily dismissing petitioner's application for post-conviction relief in which petitioner asserted ineffective assistance of his trial counsel. Petitioner and his trial counsel's contradictory and varying accounts, on their face, raised fact issues regarding his counsel's pretrial preparation and trial performance, in addition to purported conflict of interest claims. Chase v. State, 2017 ND 192, 899 N.W.2d 280, 2017 N.D. LEXIS 196 (N.D. 2017).

District court erred in summarily dismissing the allegation that petitioner was not informed that he would be required to serve at least 85 percent of any period of incarceration where the court had not addressed the allegation or petitioner’s contention that had he been informed of that requirement, he would not have pled guilty. Stein v. State, 2018 ND 264, 920 N.W.2d 477, 2018 N.D. LEXIS 257 (N.D. 2018).

Granting summary disposition dismissing an inmate’s post-conviction relief application erred because (1) the inmate was not put to the inmate’s proof until the State moved for summary dismissal, when the inmate had 30 days to respond, and (2) the application was summarily dismissed before that 30-day period expired. Burden v. State, 2019 ND 178, 930 N.W.2d 619, 2019 N.D. LEXIS 182 (N.D. 2019).

Summary dismissal of defendant’s motion to vacate judgment and withdraw guilty plea was not appropriate because defendant’s application for post-conviction relief was summarily dismissed subsequent to the State’s response and without proper notice; because the State filed its answer, defendant should have been provided proper notice that the district court intended to summarily dismiss his motion. State v. Vogt, 2019 ND 236, 933 N.W.2d 916, 2019 N.D. LEXIS 243 (N.D. 2019).

Summary dismissal of defendant’s post-conviction relief application erred because, (1) once the State responded, summary dismissal on the court’s motion was no option, and, (2) when the court treated the State’s response as a motion to dismiss, defendant was entitled to notice, which was not given. Chase v. State, 2019 ND 214, 932 N.W.2d 529, 2019 N.D. LEXIS 229 (N.D. 2019).

District court erred in summarily dismissed petitioner’s application for post-conviction relief after the State had responded but prior to the expiration of the time for a response by petitioner because the statute allowed him an opportunity to respond; the mistake was prejudicial, and the appropriate remedy was to reverse and remand to provide petitioner with an opportunity to respond. Friesz v. State, 2021 ND 37, 956 N.W.2d 338, 2021 N.D. LEXIS 37 (N.D. 2021).

District court erred in summarily dismissing defendant’s application for post-conviction relief because the order did not address the specific claims asserted in defendant’s verified amended post-conviction relief application, the lengthy delays by his post-conviction counsel to obtain the blood testing initially appear to be due to inexperience, delays in dealing with the State and the private lab, and possibly COVID-19 issues, and the court did not address the specific claims of defendant’s amended application alleging ineffective assistance of trial counsel, did not undertake any analysis under Strickland, and did not adequately explain why an evidentiary hearing on the application was no longer necessary. Campbell v. State, 2021 ND 45, 956 N.W.2d 387, 2021 N.D. LEXIS 60 (N.D. 2021).

Summary dismissal of an application for postconviction relief was improper because the State requested summary dismissal in its answer instead of filing a motion for summary disposition. A motion for summary disposition has to be made consistent with North Dakota’s rules for motion practice, and Delvo v. State, 2010 N.D. 78, 782 N.W.2d 72, and Chisholm v. State, 2020 N.D. 19, 937 N.W.2d 520, were overruled to the extent they approved of an inconsistent procedure. Van Chase v. State, 2021 ND 206, 966 N.W.2d 557, 2021 N.D. LEXIS 201 (N.D. 2021).

DECISIONS UNDER PRIOR LAW

In General.

The Uniform Post-Conviction Procedure Act authorizes summary disposition only if “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” State v. Wilson, 466 N.W.2d 101, 1991 N.D. LEXIS 23 (N.D. 1991).

Trial court properly dismissed the petitioner’s application for post-conviction release when he failed to show an excuse for not presenting seven of his claims for relief in the proceeding leading to the conviction. Steinbach v. State, 2003 ND 46, 658 N.W.2d 355, 2003 N.D. LEXIS 46 (N.D. 2003).

Granting of the state’s motion for summary disposition of the inmate’s application for post-conviction relief was proper where the state indicated that the inmate failed to provide any evidence to support his allegation of ineffective assistance of counsel; the burden then shifted to the inmate to provide some competent evidence to support his allegation, which he failed to do. Weaver v. State, 2003 ND 47, 658 N.W.2d 352, 2003 N.D. LEXIS 45 (N.D. 2003).

Summary dismissal of a postconviction application is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted. Parizek v. State, 2006 ND 61, 711 N.W.2d 178, 2006 N.D. LEXIS 55 (N.D. 2006).

Evidentiary Hearing.
—Denied.

Defendant was not entitled to a hearing or post-conviction relief because he failed to raise a genuine issue of material fact that he was prejudiced by his counsel’s failure to pursue the appeal of his conviction where the amended judgment merely corrected a clerical mistake in the original judgment by including the statutorily required mandatory minimum sentence that the trial court originally orally imposed. A nunc pro tunc order was appropriate to correct this clerical omission and defendant’s absence when the amended judgment and commitment was entered did not affect any of his substantial rights. Sampson v. State, 506 N.W.2d 722 (N.D. 1993), overruled on other grounds, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704 (2002), but see Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

Defendant’s arguments regarding his sentence did not raise an issue of fact which would make an evidentiary hearing necessary because the intent of the sentencing court could be determined from the face of the criminal judgments and the sentencing court’s clarifying order; therefore, no evidentiary hearing on that issue was necessary and the trial court did not err in refusing to hold one. Crumley v. State, 2000 ND 110, 611 N.W.2d 165, 2000 N.D. LEXIS 107 (N.D. 2000).

Since a genuine issue of material fact existed, the trial court should not have granted N.D.C.C. § 29-32.1-09 summary disposition to the State on defendant’s second application for post-conviction relief upon determining that res judicata under N.D.C.C. § 29-32.1-12(1) and misuse of process under N.D.C.C. § 29-32.1-12(2) barred defendant’s right to relief. The genuine issue of material fact that defendant raised was that certain issues, including the State’s alleged violation of N.D.R.Ev. 609(a)(1) by admitting evidence of prior instances of defendant committing domestic violence, were not pursued earlier because post-conviction counsel did not develop the evidentiary record, and that issue had to be considered in an evidentiary hearing. Coppage v. State, 2011 ND 227, 807 N.W.2d 585, 2011 N.D. LEXIS 231 (N.D. 2011).

—Failure to Request.

Trial court did not err in failing to hold an evidentiary hearing, where the parties had agreed that no evidentiary hearing was necessary and the defendant had requested summary disposition under this section. Owens v. State, 1998 ND 106, 578 N.W.2d 542, 1998 N.D. LEXIS 110 (N.D. 1998).

Inferences.

All reasonable inferences favor the defendant at all preliminary stages of a post-conviction proceeding; if a reasonable inference raises a genuine issue of material fact, the defendant is entitled to an evidentiary hearing. Hoffarth v. State, 515 N.W.2d 146, 1994 N.D. LEXIS 92 (N.D. 1994).

No Genuine Issue.

Conclusory allegations about trial counsel’s failure to call certain witnesses at trial without identifying the potential witnesses, indicating what their testimony would have been, or indicating how their testimony might have affected the outcome of the trial, were insufficient to raise a genuine issue of material fact, and a hearing was not required and post-conviction relief was not warranted. Hopfauf v. State, 1998 ND 30, 575 N.W.2d 646, 1998 N.D. LEXIS 38 (N.D. 1998), overruled in part, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002), but see Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

Where the state did not allege in its motion and supporting brief that the defendant’s application for post-conviction relief should be dismissed because no genuine issue of material fact existed, the defendant was under no duty to put forth evidentiary support for the allegations in his application, and the district court erred in summarily dismissing his claims. Wilson v. State, 1999 ND 222, 603 N.W.2d 47, 1999 N.D. LEXIS 227 (N.D. 1999).

Even though trial court made erroneous findings of fact corresponding to another application for post-conviction relief filed by inmate, trial court did not err in summarily dismissing his application given that his stated grounds for relief had either been fully and fairly determined in his previous direct appeal, see N.D.C.C. 29-32.1-12(1), or he inexcusably failed to raise them in that appeal, see N.D.C.C. 29-32.1-12(2). Syvertson v. State, 2000 ND 185, 620 N.W.2d 362, 2000 N.D. LEXIS 282 (N.D. 2000), cert. dismissed, 532 U.S. 939, 121 S. Ct. 1428, 149 L. Ed. 2d 342, 2001 U.S. LEXIS 2665 (U.S. 2001).

District court properly granted summary dismissal, pursuant to N.D.C.C. § 29-32.1-09(1), of a postconviction relief petitioner’s claim that his guilty plea was not knowingly and voluntarily made; although the district court did not inform petitioner that he would be required, pursuant to N.D.C.C. § 12.1-32-9.1, to serve 85 percent of his sentence, the 85 percent rule was imposed as a condition of parole and was not a mandatory minimum sentence requiring disclosure under N.D.R.Crim.P. 11(b)(1)(Sambursky v. State, 2006 ND 223, 723 N.W.2d 524, 2006 N.D. LEXIS 228 (N.D. 2006).

Where defendant failed to supply any competent evidence showing an issue of material fact under N.D.C.C. § 29-32.1-09(1), his failure to appropriately respond to the State’s motion was fatal and the trial court’s dismissal of his motion for post-conviction relief was appropriate. Dunn v. State, 2006 ND 26, 709 N.W.2d 1, 2006 N.D. LEXIS 35 (N.D. 2006).

Trial court did not err under N.D.C.C. § 29-32.1-09(1) in granting the State’s motion to dismiss defendant’s application for postconviction relief where defendant presented no competent evidence to meet even a minimal burden of demonstrating a material fact issue as to juror misconduct. Wheeler v. State, 2008 ND 109, 750 N.W.2d 446, 2008 N.D. LEXIS 110 (N.D. 2008).

Where appellant was convicted of murdering two victims based in part by DNA evidence showing that blood from the one of victims was found on his blue jeans, additional DNA testing was not “materially relevant” under N.D.C.C. § 29-32.1-15(3)(b) to his claim of actual innocence. There was significant evidence tying appellant to the crime scene, including the testimony of witnesses who indicated that appellant planned to kill the victims and was seen at their home shortly before the fire; therefore, he failed to raise a genuine issue of material fact precluding summary dismissal of his application for post-conviction relief under N.D.C.C. § 29-32.1-09(1). Burke v. State, 2012 ND 169, 820 N.W.2d 349, 2012 N.D. LEXIS 175 (N.D. 2012).

Defendant was entitled to an evidentiary hearing on his ineffective assistance of counsel claim where defendant asked counsel to file an appeal, counsel did not file an appeal, and defendant provided an affidavit stating he had requested counsel to act. Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

When the state failed to make at least a cursory review of the record, and did not point out to the trial court how petitioner’s allegations were unsupported by the record, it failed to establish a genuine issue of material fact, and the trial court’s summary disposition of petitioner’s petition for post-conviction relief was reversed. Vandeberg v. State, 2003 ND 71, 660 N.W.2d 568, 2003 N.D. LEXIS 89 (N.D. 2003).

The Rules of Civil Procedure are applicable to actions under the post-conviction relief act and, since matters outside the pleadings were raised by the State in its motion to dismiss petitioner’s motion for post-conviction relief, the rule governing summary judgment motions was applicable. Because petitioner was not given 30 days in which to respond to the State’s brief as required by N.D.R.Civ.P., Rule 56(c), the trial court’s judgment dismissing the inmate’s application for post-conviction relief pursuant to N.D.C.C. § § 29-32.1-06(2) and 29-32.1-09 was reversed. Kaiser v. State, 2005 ND 49, 693 N.W.2d 26, 2005 N.D. LEXIS 60 (N.D. 2005).

Trial court erred in summarily dismissing defendant’s application for post-conviction relief under N.D.C.C. § 29-32.1-09 without affording him an evidentiary hearing as there were genuine issues of material fact regarding his ineffective assistance of counsel claims, and the trial court did not conclude they were facially invalid. Berlin v. State, 2005 ND 110, 698 N.W.2d 266, 2005 N.D. LEXIS 134 (N.D. 2005).

Trial court erred in summarily dismissing petitioner’s application for postconviction relief where it reviewed the record to determine whether there was evidence supporting his claims without giving him an opportunity to demonstrate that there was a genuine issue of material fact. Parizek v. State, 2006 ND 61, 711 N.W.2d 178, 2006 N.D. LEXIS 55 (N.D. 2006).

District court improperly granted summary dismissal, pursuant to N.D.C.C. § 29-32.1-09(1), of a postconviction relief petitioner’s claim of ineffective assistance of counsel under U.S. Const. amend. VI, which claim was made on the ground that petitioner’s attorney did not inform petitioner that he would be required, pursuant to N.D.C.C. § 12.1-32-9.1, to serve 85 percent of his sentence, because petitioner raised issues of fact and was entitled to an evidentiary hearing on the issue of whether counsel’s performance fell below an objective standard of reasonableness and as to whether petitioner suffered prejudice therefrom. Sambursky v. State, 2006 ND 223, 723 N.W.2d 524, 2006 N.D. LEXIS 228 (N.D. 2006).

Denial of postconviction relief was improper because the district court erred in reading defendant’s sex offender treatment program condition to apply while he was incarcerated, rather than when he was released on probation, when the plain language of defendant’s probationary condition did not require attendance, participation, cooperation, or completion of a sex offender treatment program while defendant was incarcerated. Voisine v. State, 2008 ND 91, 748 N.W.2d 429, 2008 N.D. LEXIS 89 (N.D. 2008).

District court erred in summarily dismissing defendant’s application for post-conviction relief because under N.D.C.C. § 29-32.1-09, only a party could move for summary disposition, which could be granted only after it carried its initial burden of showing there was no genuine issue of material fact. Henke v. State, 2009 ND 117, 767 N.W.2d 881, 2009 N.D. LEXIS 131 (N.D. 2009).

Post-conviction relief application was improperly dismissed on a trial court’s own motion under N.D.C.C. § 29-32.1-06(2) because it was not impossible for an applicant to prove a claim upon which relief could have been granted; ineffectiveness of trial counsel was a ground for granting relief that generally could not have been summarily decided. Although the trial court had the inherent authority to summarily dismiss an application on its own initiative, there had to be no dispute as to the material facts or the inferences to be drawn from the undisputed facts before a dismissal could have been entered pursuant to N.D.C.C. § 29-32.1-09; the trial court did not comply with the requirements of N.D.R.Civ.P. 56 and N.D.C.C. § 29-32.1-09(1) because the applicant was not given notice and an opportunity to respond and submit evidence before dismissal. Wong v. State, 2010 ND 219, 790 N.W.2d 757, 2010 N.D. LEXIS 214 (N.D. 2010).

In a case where a withdrawal of a guilty plea was sought, a trial court failed to comply with N.D.R.Civ.P. 56 wen it entered a summary dismissal of a post-conviction application under N.D.C.C. § 29-32.1-09; appellant was not given notice before the trial court entered a summary dismissal. The trial court failed to comply with N.D.R.Civ.P. 56, which was applicable when there was a summary dismissal of a post-conviction application under N.D.C.C. § 29-32.1-09. State v. Gress, 2011 ND 233, 807 N.W.2d 567, 2011 N.D. LEXIS 243 (N.D. 2011).

Summary Disposition Inappropriate.

Summary disposition of applicant’s petition was inappropriate, and applicant was entitled to an opportunity to substantiate his charges in a full evidentiary hearing, where applicant alleged that his trial counsel’s subornation of perjury constituted a violation of his constitutional right to effective assistance of counsel and that at the time the false testimony was offered his mental and physical condition was such that he was not capable of making a rational choice. State v. Skjonsby, 338 N.W.2d 628, 1983 N.D. LEXIS 345 (N.D. 1983).

29-32.1-10. Hearing — Evidence.

  1. Evidence must be presented in open court, recorded, and preserved as part of the record of the proceedings.
  2. A certified record of previous proceedings may be used as evidence of facts and occurrences established therein, but use of that record does not preclude either party from offering additional evidence as to those facts and occurrences.
  3. The deposition of a witness may be received in evidence, without regard to the availability of the witness, if written notice of intention to use the deposition was given in advance of the hearing and the deposition was taken subject to the right of cross-examination.

Source:

S.L. 1985, ch. 366, § 10.

Notes to Decisions

Nature of Proceedings.

Post-conviction relief proceedings are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties. State v. Wilson, 466 N.W.2d 101, 1991 N.D. LEXIS 23 (N.D. 1991).

Records.

Supreme Court of North Dakota held that post-conviction relief under N.D.C.C. ch. 29-32.1 was not available in municipal courts in North Dakota, because municipal courts were not courts of record under N.D.C.C. § 27-01-01 and N.D.C.C. ch. 29-32.1 refers to the record below in N.D.C.C. §§ 29-32.1-04(2), 29-32.1-10(1), (2). If an appeal from municipal court directly to the Supreme Court was proper, review would be impossible because of the lack of a record; therefore, the municipal court judgment denying petitioner’s application for post-conviction relief was void. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

DECISIONS UNDER PRIOR LAW

Appointment of Counsel.

Section 7 of the 1966 Act apparently authorizes the holding of a hearing to resolve material issues of fact in absence of the petitioner; however, where the petitioner is indigent, and where his absence is due to his confinement against his will, the trial court should, in order to make the hearing meaningful, appoint counsel for the petitioner, even if he has elected to proceed pro se. State v. Lueder, 252 N.W.2d 861, 1977 N.D. LEXIS 266 (N.D. 1977).

Authority of Attorney General.

Attorney general has authority to represent state in postconviction proceedings. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Procedure.

Post-conviction relief proceedings are civil in nature, and all rules and statutes applicable in civil proceedings are available to the parties. Varnson v. Satran, 368 N.W.2d 533, 1985 N.D. LEXIS 323 (N.D. 1985).

29-32.1-11. Findings of fact — Conclusions of law — Order.

  1. The court shall make explicit findings on material questions of fact and state expressly its conclusions of law relating to each issue presented.
  2. If the court rules that the applicant is not entitled to relief, its order must indicate whether the decision is based upon the pleadings, is by summary disposition, or is the result of an evidentiary hearing.
  3. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the previous proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper.

Source:

S.L. 1985, ch. 366, § 11.

Notes to Decisions

Implied Findings.

Although the district court did not explicitly state its decision denying petitioner’s motion for postconviction relief was based on evidence presented at the evidentiary hearing, it issued its order five days after the hearing, and it was reasonable to infer that the district court’s decision was the result of the evidentiary hearing. Cue v. State, 2003 ND 97, 663 N.W.2d 637, 2003 N.D. LEXIS 115 (N.D. 2003).

Procedure used in this case was tantamount to an evidentiary hearing based solely on a review of documents, including the transcript where the parties had indicated they had no other evidence to produce than what already existed in the court’s file and no purpose would have been served by scheduling an evidentiary hearing for the court to formally receive uncontested evidence accompanying the application for post-conviction relief. Clark v. State, 2008 ND 234, 758 N.W.2d 900, 2008 N.D. LEXIS 215 (N.D. 2008).

Petitioner's claim that the district court failed to cite the basis of its decision was rejected where it was reasonable to infer based on the findings made that the decision was based on the transcript and the additional evidence offered by petitioner in the postconviction process. Cody v. State, 2017 ND 29, 889 N.W.2d 873, 2017 N.D. LEXIS 20 (N.D. 2017).

District court properly dismissed an application for postconviction relief where although the order was devoid of reasoning as to why the State's summary judgment motion was granted, the prior proceedings, including appeals, involved essentially the same issues raised in the instant petition, the State had submitted the motion based on misuse of process and untimeliness at the court's invitation, and petitioner had not responded to the motion. Gonzalez v. State, 2017 ND 109, 893 N.W.2d 473, 2017 N.D. LEXIS 105 (N.D. 2017).

Lack of Findings.

Order denying application for post-conviction relief was a final order even though it did not contain findings and conclusions as required by this section. State v. Rathjen, 455 N.W.2d 845, 1990 N.D. LEXIS 110 (N.D. 1990).

Where district court issued an order addressing “various facets” of appellant’s ineffective assistance of counsel claims, the appellate court noted that it did not encourage such a “minimalist” approach. It did, however, conclude that the failure to make more explicit findings and conclusions was harmless error. State v. Raulston, 2005 ND 212, 707 N.W.2d 464, 2005 N.D. LEXIS 267 (N.D. 2005).

29-32.1-12. Affirmative defenses — Res judicata — Misuse of process.

  1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.
  2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
    1. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or
    2. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.
  3. Res judicata and misuse of process are affirmative defenses to be pleaded by the state. The burden of proof is also upon the state, but, as to any ground for relief which, by statute or rule of court, must be presented as a defense or objection at a specified stage of a criminal prosecution, the applicant shall show good cause for noncompliance with the statute or rule.

Source:

S.L. 1985, ch. 366, § 12.

Notes to Decisions

Findings Sufficient.

Defendant’s second petition for postconviction relief was properly denied, even though the order denying such was succinct, where judicial notice was taken of a prior petition; moreover, the trial court stated that the issues raised in the second petition had been previously considered. A legal conclusion dealing with res judicata was overly broad, but the remaining claims were appropriately denied on the ground of misuse of process and failure to show ineffectiveness of postconviction counsel. Steen v. State, 2007 ND 123, 736 N.W.2d 457, 2007 N.D. LEXIS 121 (N.D. 2007).

Issues previously considered.

District court reached the correct result applying the doctrine of res judicata prior to the State responding, but for the wrong reason, because when the district court used the term “res judicata,” it should have referred to the authority granted under N.D.C.C. § 29-32.1-09(1), rather than the affirmative defense statute; § 29-32.1-09(1), expressly allows the district court to consider whether an application for relief is successive, and upon determining it is, to summarily dismiss. Atkins v. State, 2021 ND 83, 959 N.W.2d 588, 2021 N.D. LEXIS 79 (N.D. 2021).

Issues Not Raised in Previous Appeal.

As the study of false confessions was not a new science, without deciding whether information constituted newly discovered evidence, the supreme court concluded that the inmate inexcusably failed to raise claims of newly discovered evidence in his previous applications for postconviction relief, and they were barred as a misuse of the postconviction process. Froistad v. State, 2021 ND 92, 959 N.W.2d 863, 2021 N.D. LEXIS 87 (N.D. 2021).

Issues previously considered.

District court did not err in summarily dismissing petitioner’s application for post-conviction relief because the alleged in his application were or could have been raised in prior proceedings and were therefore barred. Friesz v. State, 2022 ND 22, 2022 N.D. LEXIS 17 (N.D. 2022).

Good Cause for Noncompliance.

District court erred in denying defendant’s application for post-conviction relief as procedurally barred based on the doctrines of misuse of process and res judicata because, while defendant received notice of the State’s motion to dismiss, he was not afforded time to reply, and, consequently, could not show good cause for noncompliance. Atkins v. State, 2019 ND 146, 928 N.W.2d 438, 2019 N.D. LEXIS 149 (N.D. 2019).

Ineffective Assistance of Counsel.

A claim of ineffective assistance of counsel should not be brought on direct appeal, but rather through a post-conviction relief proceeding, which allows the parties to fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. Therefore, where defendant first raised the issue of ineffective assistance of counsel on direct appeal of his conviction and trial court summarily affirmed the conviction without expressly denying the ineffective assistance of counsel claim, the denial was without prejudice and defendant could raise the issue in post-conviction proceedings affording the possibility of an evidentiary hearing on the issue. DeCoteau v. State, 1998 ND 199, 586 N.W.2d 156, 1998 N.D. LEXIS 214 (N.D. 1998).

The district court erred in finding to be res judicata the issues of failure of defense counsel to properly investigate and present the case to the jury and his failure to raise and protect issues that were his duty to raise and protect, inasmuch as those issues were not raised in the defendant’s direct appeal claiming ineffective assistance of counsel. Wilson v. State, 1999 ND 222, 603 N.W.2d 47, 1999 N.D. LEXIS 227 (N.D. 1999).

Where none of the issues raised by the defendant in his applications for post-conviction relief were issues which could not have been raised in his first motion to withdraw his guilty plea, he was not prejudiced by his counsel’s arguing inconsistently on the third application that defendant was not informed of the mandatory minimum instead of maximum sentence, given that his application would still have been dismissed on the grounds of misuse of process since the defendant had inexcusably failed to raise all his claims under this rule in his first motion. Berlin v. State, 2000 ND 206, 619 N.W.2d 623, 2000 N.D. LEXIS 247 (N.D. 2000).

Since a genuine issue of material fact existed, the trial court should not have granted N.D.C.C. § 29-32.1-09 summary disposition to the State on defendant’s second application for post-conviction relief upon determining that res judicata under N.D.C.C. § 29-32.1-12(1) and misuse of process under N.D.C.C. § 29-32.1-12(2) barred defendant’s right to relief. The genuine issue of material fact that defendant raised was that certain issues, including the State’s alleged violation of N.D.R.Ev. 609(a)(1) by admitting evidence of prior instances of defendant committing domestic violence, were not pursued earlier because post-conviction counsel did not develop the evidentiary record, and that issue had to be considered in an evidentiary hearing. Coppage v. State, 2011 ND 227, 807 N.W.2d 585, 2011 N.D. LEXIS 231 (N.D. 2011).

In a case in which petitioner appealed from an order denying his second application for postconviction relief, the Supreme Court directed the district court to address the merits of petitioner’s claims of denial of the right to counsel and of ineffective assistance of trial counsel because, under the law of the case doctrine, the Supreme Court’s previous decision allowed petitioner to raise these issues in a second postconviction proceeding. Baatz v. State, 2013 ND 172, 837 N.W.2d 387, 2013 N.D. LEXIS 172 (N.D. 2013).

District court properly dismissed defendant's application for postconviction relief because he did not establish that his trial counsel was ineffective where counsel could not be held responsible for something of which he had no knowledge, his chances of prevailing on a severance motion were slim where the codefendants did not testify against defendant, defendant's argument about the jury receiving an audio recording that was not received in evidence was determined in a previous proceeding, defendant did not identify what an objection to a jury instruction should have been or how it misstated the law, and the State only promised to forego the pursuit of habitual offender status if defendant entered into a written plea agreement. Ratliff v. State, 2016 ND 149, 882 N.W.2d 716, 2016 N.D. LEXIS 148 (N.D. 2016).

Finding that postconviction petitioner did not meet Strickland’s first prong as to an ineffective assistance of appellate counsel claim was error as the purposeful waiver of an argument on direct appeal in order to raise it in a postconviction relief action was a misuse of process. Kalmio v. State, 2018 ND 182, 915 N.W.2d 655, 2018 N.D. LEXIS 184 (N.D. 2018).

Issues Not Raised in Previous Appeal.

Defendant was precluded from raising issue of ineffective assistance of counsel in a second application for post-conviction relief where the defendant did not raise the issue in his first appeal. Murchison v. State, 1998 ND 96, 578 N.W.2d 514, 1998 N.D. LEXIS 85 (N.D. 1998).

Defendant who, in his first petition for post-conviction relief, inexcusably failed to raise issues concerning the trial court’s acceptance of his guilty plea, his right to be heard at sentencing, and violation of his plea agreement, but raised them in his second petition misused the post-conviction process. Silvesan v. State, 1999 ND 62, 591 N.W.2d 131, 1999 N.D. LEXIS 61 (N.D. 1999).

Where the defendant failed to raise his claims in his initial post-conviction application, and chose instead to raise them in his second application, his claims were barred by the statutes’ affirmative defenses. Heyen v. State, 2001 ND 126, 630 N.W.2d 56, 2001 N.D. LEXIS 132 (N.D. 2001).

Although the State’s notice of defendant’s status as a special dangerous offender was filed only 20 days before trial, defendant made no showing of prejudice and defendant did not raise the issue on direct appeal or in defendant’s previous applications for post-conviction relief; defendant’s failure to raise the issue until a subsequent post-conviction action was an abuse of process. Greybull v. State, 2004 ND 116, 680 N.W.2d 254, 2004 N.D. LEXIS 200 (N.D. 2004).

Petitioner’s claim that the district court erred in holding a conference in his absence was barred because he failed to raise the issue on direct appeal, and the conference did not fall under one of the phases requiring him to be present; trial counsel’s performance concerning the hearing was not deficient given his testimony that there was inadequate time to contact petitioner and the fact that he communicated the facts to petitioner and was forced to act quickly because trial was scheduled for the next day. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Petitioner was not barred by res judicata from raising an in a post-conviction relief application because the issue was not determined in his motion to correct an illegal sentence; petitioner could not collaterally attack the conviction in the proceeding on his motion. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Petitioner's raising arguments in a post-conviction relief application did not qualify as a misuse of process because it involved new interpretations of law that were not adopted at the time petitioner was convicted or when he could have previously applied for post-conviction relief. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

District court did not err in summarily dismissing defendant’s November 2018 application for post-conviction relief regarding the February and August 2012 hotel receipts as defendant was aware of the receipts and had complete access to the receipts before trial; he could have raised that issue at trial or at the very latest, in his April 2017 application for post-conviction relief; and those receipts, which defendant argued would impeach the victim’s testimony, would not likely result in an acquittal. Kovalevich v. State, 2019 ND 210, 932 N.W.2d 354, 2019 N.D. LEXIS 215 (N.D. 2019).

Issues Previously Considered.

Issues which were considered and decided in the first appeal from conviction would not be considered further, and defendant’s variations on the same themes decided before did not merit post-conviction relief. Woehlhoff v. State, 531 N.W.2d 566, 1995 N.D. LEXIS 87 (N.D. 1995).

Arguments which could have been raised in one post-conviction challenge to the length of the defendant’s sentence, but were not, were barred from consideration in a later post-conviction challenge. State v. Johnson, 1997 ND 235, 571 N.W.2d 372, 1997 N.D. LEXIS 298 (N.D. 1997).

Trial court did not err in denying defendant’s application for post-conviction relief where the issue had been fully adjudicated in a previous appeal. Murchison v. State, 1998 ND 96, 578 N.W.2d 514, 1998 N.D. LEXIS 85 (N.D. 1998).

When an issue has been raised on a direct appeal of a conviction, the issue cannot be raised again in a subsequent post-conviction relief proceeding. DeCoteau v. State, 1998 ND 199, 586 N.W.2d 156, 1998 N.D. LEXIS 214 (N.D. 1998).

Applicants for post-conviction relief may not avoid the application of res judicata principles by raising variations of previous arguments. Silvesan v. State, 1999 ND 62, 591 N.W.2d 131, 1999 N.D. LEXIS 61 (N.D. 1999).

Where, in his direct appeal, the defendant raised the issue of ineffective assistance of counsel with regard to a sleeping juror, that issue was fully and finally determined, and there was no error in the district court’s denial of his request for post-conviction relief on that issue. Wilson v. State, 1999 ND 222, 603 N.W.2d 47, 1999 N.D. LEXIS 227 (N.D. 1999).

Defendant misused the post-conviction process in his third post-conviction relief application because the issues he identified as grounds for relief could have been raised in his previous petitions; therefore, they were barred as res judicata. Murchison v. State, 2003 ND 38, 658 N.W.2d 320, 2003 N.D. LEXIS 36 (N.D. 2003).

Issues, or variation of issues, raised by defendant in his second action for post-conviction relief were either fully and finally determined in previous proceedings and were res judicata, or constituted a misuse of process, because defendant offered no excuse or justification for failing to raise those claims in prior proceedings; thus, the dismissal of his application, and the trial court’s decision denying the appointment of post-conviction counsel was proper since his application was entirely without merit. Jensen v. State, 2004 ND 200, 688 N.W.2d 374, 2004 N.D. LEXIS 340 (N.D. 2004).

Defendant’s second application for postconviction relief was denied under N.D.C.C. § 29-32.1-12 on the grounds of res judicata and misuse of process since certain ineffective assistance of counsel claims were already adjudicated in a prior petition; moreover, insufficiency of the evidence claims should have been raised before. Steen v. State, 2007 ND 123, 736 N.W.2d 457, 2007 N.D. LEXIS 121 (N.D. 2007).

Defendant, convicted of murder and filing a second application for post-conviction relief, was not entitled to relief on defendant’s claims of evidentiary error, ineffective assistance of trial counsel, and prosecutorial misconduct, as those claims were barred either due to res judicata under N.D.C.C. § 29-32.1-12(1) or misuse of process pursuant to N.D.C.C. § 29-32.1-12(2). As a result, dismissal of those claims could be summarily affirmed under N.D.R.App.P. 35.1(a)(7), although summary affirmance would not be proper on defendant’s ineffective assistance of post-conviction counsel claim because defendant had stated facts regarding it that might entitle defendant to relief. Tweed v. State, 2011 ND 228, 807 N.W.2d 599, 2011 N.D. LEXIS 234 (N.D. 2011).

Summary dismissal of an application for postconviction relief based on claims of ineffective assistance of counsel was proper under the doctrine of res judicata because the issues had been raised in a direct appeal. Wacht v. State, 2015 ND 154, 864 N.W.2d 740, 2015 N.D. LEXIS 161 (N.D. 2015).

District court did not err in summarily dismissing defendant’s motion for relief from an order denying an application for post-conviction relief because the issue regarding the July 2012 hotel receipt had been previously raised in his April 2017 application for post-conviction relief. Kovalevich v. State, 2019 ND 210, 932 N.W.2d 354, 2019 N.D. LEXIS 215 (N.D. 2019).

Defendant was not entitled to post-conviction relief because, to the extent defendant attempted to re-argue judicial bias and the unconstitutionality of his confession, those issues were barred by res judicata as those claims were decided in defendant’s direct appeal. Furthermore, those claims could not be revived in the post-conviction relief proceeding by combining them with allegations of ineffective assistance of counsel. Hunter v. State, 2020 ND 224, 949 N.W.2d 841, 2020 N.D. LEXIS 215 (N.D. 2020).

Misuse of Process.

An issue is barred as a misuse of process if (1) the defendant inexcusably fails to raise an issue in a proceeding leading to judgment of conviction and subsequently seeks review in a first application for post-conviction relief; (2) the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; or (3) the defendant inexcusably fails to raise an issue in an initial post-conviction application. Clark v. State, 1999 ND 78, 593 N.W.2d 329, 1999 N.D. LEXIS 82 (N.D. 1999); Bell v. State, 2001 ND 188, 636 N.W.2d 438, 2001 N.D. LEXIS 214 (N.D. 2001).

State proved misuse of process and post-conviction relief was denied, since defendant inexcusably failed to raise his issue of appellate counsel’s failure to file a direct appeal in one of his many previous post-conviction pro-se motions in the district court or in his two previous pro-se applications for post-conviction relief filed with this court. Owens v. State, 2001 ND 15, 621 N.W.2d 566, 2001 N.D. LEXIS 17 (N.D.), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034, 2001 U.S. LEXIS 4094 (U.S. 2001).

Trial court properly dismissed the petitioner’s application for post-conviction release when he failed to show an excuse for not presenting seven of his claims for relief in the proceeding leading to the conviction. Steinbach v. State, 2003 ND 46, 658 N.W.2d 355, 2003 N.D. LEXIS 46 (N.D. 2003).

Where defendant did not raise the issue of prosecutorial misconduct on his prior direct appeal and failed to make any showing of excuse or justification for his failure to raise the issue, the supreme court found that his attempt to raise the issue at a belated date constituted misuse of process under N.D.C.C. § 29-32.1-12(2)(a), and that it would not address the issue on appeal. Laib v. State, 2005 ND 187, 705 N.W.2d 845, 2005 N.D. LEXIS 232 (N.D. 2005).

Claims of a denial of a speedy trial, a violation of double jeopardy, and imprisonment for failing to pay a debt all could have been raised in a direct appeal; therefore, postconviction relief was properly denied based on a misuse of process. Noorlun v. State, 2007 ND 118, 736 N.W.2d 477, 2007 N.D. LEXIS 118 (N.D. 2007).

Although petitioner’s post-conviction relief claim could be construed as misuse of process under N.D.C.C. 29-32.1-12 because petitioner failed to pursue the alleged unlawful revocation of probation on direct appeal from the order revoking his probation, because petitioner’s response to the State’s motion to dismiss his petition for post-conviction relief asserted his claim was not barred by either res judicata or misuse of process, affirmative defenses listed in N.D.C.C. § 29-32.1-12(3), and the State did not address this assertion at the district court, nor did the State address this issue on appeal, the State’s failure to plead this defense required the court to review the merits of petitioner’s appeal. Voisine v. State, 2008 ND 91, 748 N.W.2d 429, 2008 N.D. LEXIS 89 (N.D. 2008).

Defendant, in his direct appeal, argued prosecutorial misconduct relating to the prosecutor’s comments during its closing argument, and his claims of prosecutorial misconduct relating to the prosecutor intentionally lying, misleading the court and jury, and suborning perjury also could have been raised in his direct appeal, and defendant did not provide any reason why he did not raise them then; defendant’s present attempt to raise claims of prosecutorial misconduct, after failing to pursue those claims in his direct appeal, constituted a misuse of process. Everett v. State, 2008 ND 199, 757 N.W.2d 530, 2008 N.D. LEXIS 222 (N.D. 2008).

District court properly summarily dismissed defendant's second application for postconviction relief because his application was a misuse of process inasmuch as neither miscommunication with counsel nor misunderstanding of the legal process excused defendant's failure to include his illegal sentence claim in his first application to the district court, and defendant asserted no newly discovered evidence that could not have been raised in the earlier application. Myers v. State, 2017 ND 66, 891 N.W.2d 724, 2017 N.D. LEXIS 69 (N.D. 2017).

It was error to summarily deny an inmate’s subsequent post-conviction relief application for misuse of process because the inmate was not given required notice or an opportunity to show the application raised genuine issues of material fact, and it could not be concluded the trial court’s error did not prejudice the inmate as the court did not address the inmate’s argument that DNA analysis results withheld from the inmate would have been material to the inmate’s decision to plead guilty rather than proceed to trial. Gonzalez v. State, 2019 ND 47, 923 N.W.2d 143, 2019 N.D. LEXIS 50 (N.D. 2019).

Defendant was not entitled to post-conviction relief because (1) defendant’s motions were properly considered as post-conviction claims barred by res judicata and misuse of process, and (2) defendant’s previously raised ineffective assistance claims were also barred by res judicata and misuse of process. State v. Atkins, 2019 ND 145, 928 N.W.2d 441, 2019 N.D. LEXIS 148 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Failure to Appeal.

Failure to take a direct appeal would bar relief in a post-conviction action under former chapter 29-32 on the ground of abuse of process as to factual and legal contentions that the post-conviction applicant raised and litigated at the time of the original trial court proceedings and which he deliberately or inexcusably failed to pursue on direct appeal. State v. Willey, 381 N.W.2d 183, 1986 N.D. LEXIS 246 (N.D. 1986).

Law Reviews.

North Dakota Supreme Court Review (Johnson v. State),see 87 N.D. L. Rev. 419 (2011).

29-32.1-13. Reimbursement of costs and litigation expenses.

If an application is denied, the state may move for an order requiring the applicant to reimburse the state for costs and for litigation expenses paid for the applicant from public funds. The court may grant the motion if it finds that the applicant’s claim is so completely lacking in factual support or legal basis as to be frivolous or that the applicant has deliberately misused process. The court may require reimbursement of costs and expenses only to the extent reasonable in light of the applicant’s present and probable future financial resources.

Source:

S.L. 1985, ch. 366, § 13.

29-32.1-14. Review.

A final judgment entered under this chapter may be reviewed by the supreme court of this state upon appeal as provided by rule of the supreme court.

Source:

S.L. 1985, ch. 366, § 14; 2001, ch. 300, § 1.

Notes to Decisions

Construction.

Statutes conferring the right to appeal must be liberally construed, and in determining appeal ability it is not the label which controls but rather, the effect. Kaiser v. State, 417 N.W.2d 175, 1987 N.D. LEXIS 457 (N.D. 1987).

Construction with Other Laws.

Rule 4, N.D.R.App.P., applies to post-conviction relief proceedings and under Rule 4, the time limits for filing a notice of appeal may be extended in situations involving excusable neglect. McMorrow v. State, 516 N.W.2d 282, 1994 N.D. LEXIS 115 (N.D. 1994).

Extension of Time to File Notice of Appeal.

In civil cases, including post-conviction relief proceedings, the trial court may extend the time for filing a notice of appeal for a period not to exceed ninety days from the date of service of notice of entry of judgment. McMorrow v. State, 516 N.W.2d 282, 1994 N.D. LEXIS 115 (N.D. 1994).

Memorandum Opinion.

An attempted appeal from an order for judgment or a memorandum decision will be treated as an appeal from a subsequently-entered consistent judgment, if one exists, and when the memorandum opinion contains an order which was intended to be a final order and the order is one from which an appeal may be taken pursuant to statute, the supreme court will treat the appeal as an appeal from the order. Kaiser v. State, 417 N.W.2d 175, 1987 N.D. LEXIS 457 (N.D. 1987).

Petition for Post-Conviction Relief.

Although the county court issued an order denying a petition for post-conviction relief, where it was clear from the circumstances that the court intended the order to have the effect of a final judgment, the supreme court would treat the appeal as an appeal from the final judgment. Kaiser v. State, 417 N.W.2d 175, 1987 N.D. LEXIS 457 (N.D. 1987).

The current law governing post-conviction procedure does not contain a provision which provides that certain orders are equivalent to a final judgment. Kaiser v. State, 417 N.W.2d 175, 1987 N.D. LEXIS 457 (N.D. 1987).

An order granting a new trial to a post-conviction relief petitioner is a final judgment entered under the Uniform Post-Conviction Procedure Act, and thus appealable, given that no further post-conviction relief proceedings will occur after such an order except for a new criminal trial. Hill v. State, 2000 ND 143, 615 N.W.2d 135, 2000 N.D. LEXIS 151 (N.D. 2000).

Supreme Court of North Dakota lacked jurisdiction over a municipal court judgment denying petitioner’s application for post-conviction relief, because the appeal was not authorized by statute. There was nothing in N.D.C.C. § 29-32.1-14 that extended the right of appeal to a municipal court judgment. Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 N.D. LEXIS 109 (N.D. 2012).

DECISIONS UNDER PRIOR LAW

Finality of Order.

Memorandum opinion denying an application for postconviction relief was not appealable where it was clear the memorandum opinion was not intended to be the district court’s final order. State v. Tinsley, 325 N.W.2d 177, 1982 N.D. LEXIS 338 (N.D. 1982), decided prior to the amendment of this chapter.

Findings.

In an appeal brought under the provisions of the Uniform Post-Conviction Procedure Act, a district court’s findings of fact will not be disturbed unless they are clearly erroneous. Varnson v. Satran, 368 N.W.2d 533, 1985 N.D. LEXIS 323 (N.D. 1985).

Review in Supreme Court.

The appeal provisions of former chapter 29-32 were a cumulative, and not a superseding, remedy, and the right of the people to invoke the original jurisdiction of the supreme court in habeas corpus was still viable. Thus, an unsuccessful applicant for post-conviction relief could seek appellate review pursuant to former section 29-32-09 or could petition the supreme court for an original writ of habeas corpus. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Standard of Review.

In an appeal from a judgment under the Uniform Post-Conviction Procedure Act, the supreme court applies the “clearly erroneous” standard of N.D.R.Civ.P., Rule 52(a), in reviewing fact questions. Rule 52(a) is inapplicable in original habeas corpus proceedings, and the supreme court reviews the record de novo. Thus, the court’s review of fact issues is more liberal under its original habeas corpus jurisdiction than it would be in an appeal under the uniform act. Jensen v. State, 373 N.W.2d 894, 1985 N.D. LEXIS 394 (N.D. 1985).

Waiver.

Failure to take a direct appeal would bar relief in a post-conviction action under former chapter 29-32 on the ground of abuse of process as to factual and legal contentions that the post-conviction applicant raised and litigated at the time of the original trial court proceedings and which he deliberately or inexcusably failed to pursue on direct appeal. State v. Willey, 381 N.W.2d 183, 1986 N.D. LEXIS 246 (N.D. 1986).

29-32.1-15. Motion for DNA testing not available at trial.

  1. Without limitation on a court’s authority to order discovery under section 29-32.1-08, a person convicted of a crime may make a motion for the performance of forensic DNA testing to demonstrate the person’s actual innocence if:
    1. The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; and
    2. The evidence was not subject to the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
  2. A person who makes a motion under subsection 1 must present a prima facie case that:
    1. Identity was an issue in the trial; and
    2. The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
  3. The court shall order that the testing be performed if:
    1. A prima facie case has been established under subsection 2;
    2. The testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence; and
    3. The testing requested employs a scientific method generally accepted within the relevant scientific community. The court shall impose reasonable conditions on the testing designed to protect the state’s interests in the integrity of the evidence and the testing process.

Source:

S.L. 2005, ch. 289, § 1.

Notes to Decisions

Materially Relevant.

As the statutory language of N.D.C.C. § 29-32.1-15(3)(b) is similar to language adopted in Illinois under 725 ILCS 5/116-3, the Supreme Court of North Dakota has applied Illinois law in determining that evidence that is “materially relevant” to a defendant’s claim of actual innocence is evidence which tends to significantly advance that claim. In deciding whether evidence is “materially relevant,” a court must consider the exculpatory potential of a favorable DNA result, in addition to the other evidence presented at trial. Burke v. State, 2012 ND 169, 820 N.W.2d 349, 2012 N.D. LEXIS 175 (N.D. 2012).

Motion Denied.

Where appellant was convicted of murdering two victims based in part by DNA evidence showing that blood from the one of victims was found on his blue jeans, additional DNA testing was not “materially relevant” under N.D.C.C. § 29-32.1-15(3)(b) to his claim of actual innocence. There was significant evidence tying appellant to the crime scene, including the testimony of witnesses who indicated that appellant planned to kill the victims and was seen at their home shortly before the fire; appellant also testified at trial that one of the victim’s blood was found on his pants. Burke v. State, 2012 ND 169, 820 N.W.2d 349, 2012 N.D. LEXIS 175 (N.D. 2012).

Prima Facie Case.

When a petitioner for postconviction relief sought DNA testing of evidence 30 years after his conviction, the clerk of court’s testimony regarding the existing evidence was sufficient to establish a prima facie case under N.D.C.C. § 29-32.1-15(2)(b), but the petitioner was unable to show that the remaining evidence for which he requested testing, apart from its having been received at trial, was subject to a sufficient chain of custody or was even still in existence. The supreme court concluded the petitioner did not establish a prima facie case under N.D.C.C. § 29-32.1-15(2)(b). Olson v. State, 2008 ND 113, 750 N.W.2d 459, 2008 N.D. LEXIS 114 (N.D. 2008).

Collateral References.

Validity, Construction, and Application of State Statutes and Rules Governing Requests for Postconviction DNA Testing. 72 A.L.R.6th 227.

CHAPTER 29-33 Uniform Mandatory Disposition of Detainers Act

29-33-01. Request for disposition of pending charges — Duty to inform prisoner — Dismissal.

  1. Any person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, information, or complaint pending against that person in this state. The request must be in writing addressed to the court in which the indictment, information, or complaint is pending and to the prosecuting official charged with the duty of prosecuting it and must set forth the place of imprisonment.
  2. The warden or other official having custody of prisoners shall promptly inform each prisoner in writing of the source and nature of any untried indictment, information, or complaint against a prisoner of which the warden or other official had knowledge or notice and of the prisoner’s right to make a request for final disposition thereof.
  3. Failure of the warden or other official to inform a prisoner, as required by this section, within one year after a detainer has been filed at the institution, entitles the prisoner to a final dismissal of the indictment, information, or complaint with prejudice.

Source:

S.L. 1971, ch. 321, § 1.

Notes to Decisions

Proper Invocation of Detainer.

This Chapter does not apply when a prisoner is being held locally on a pending charge and no detainer has been filed; under this Chapter a detainer may be filed only when a prisoner is serving a sentence on another charge. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Request for Final Disposition.

Defendant’s right to a speedy trial was not violated where he failed to inform the district court of his change of address when he was transported from another county, failed to object when hearings were rescheduled, failed to request immediate disposition of the charges during his preliminary hearings, and failed to follow the procedural requirements of the Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33. State v. Johnson, 1999 ND 33, 590 N.W.2d 192, 1999 N.D. LEXIS 35 (N.D. 1999).

Written Request Required.

Right to have any pending criminal action brought to trial within 90 days of a written request does not exist where defendant did not make a written request under this section. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Collateral References.

Construction and Application of Uniform Mandatory Disposition of Detainers Act. 37 A.L.R.6th 357.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Mandatory Disposition of Detainers Act include:

Ala. Code §§ 15-9-80 to 15-9-88.

Ariz. R. Crim. Proc., Rule 8.3(b).

Colo. Rev. Stat. §§ 16-14-101 to 16-14-108.

Idaho Code, § 19-5001 et seq.

Kan. Stat. Ann. §§ 22-4301 to 22-4308.

Minn. Stat. § 629.292.

Mo. Rev. Stat. §§ 217.450 to 217.485.

Utah Code Ann. §§ 77-29-1 to 77-29-4.

29-33-02. Duty to inform court and prosecuting official.

The request must be delivered to the warden or other official having custody of the prisoner, who shall forthwith:

  1. Certify the term of commitment under which the prisoner is being held, the time already served on the sentence, the time remaining to be served, the good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole board relating to the prisoner; and
  2. Send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one copy to the prosecuting official to whom it is addressed.

Source:

S.L. 1971, ch. 321, § 2.

29-33-03. When charges brought to trial — Dismissal.

Within ninety days after the receipt of the request and certificate by the court and prosecuting official or within such additional time as the court for good cause shown in open court may grant, the prisoner or the prisoner’s counsel being present, the indictment, information, or complaint must be brought to trial, but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for the attorney to be heard. If, after such a request, the indictment, information, or complaint is not brought to trial within that period, no court of this state any longer has jurisdiction thereof, nor may the untried indictment, information, or complaint be of any further force or effect, and the court shall dismiss it with prejudice.

Source:

S.L. 1971, ch. 321, § 3.

Notes to Decisions

Complaints Against Inmates.

When a felony complaint is filed against an inmate, the trigger for the ninety-day period is when the prosecuting official and the court in which the untried complaint is filed receive the inmate’s request for disposition of the detainer. State v. Ripley, 548 N.W.2d 24, 1996 N.D. LEXIS 131 (N.D. 1996).

Defendant’s Contribution to Delay.

Defendant’s actions in delaying hearings for additional preparation time and for availability of out-of-state witnesses, and in requesting meetings with BCI agents on an unrelated matter, contributed substantially to the criminal charges not being brought to trial within 90 days. State v. Fulks, 1997 ND 143, 566 N.W.2d 418, 1997 N.D. LEXIS 144 (N.D. 1997).

Good Cause for Extension or Continuance of Trial.

Factors to be considered in determining if the extension or continuance of the trial beyond the ninety-day time period constitutes good cause include: length of delay; reason for delay; defendant’s assertion of his right; and prejudice to the defendant. State v. Kania, 341 N.W.2d 361, 1983 N.D. LEXIS 419 (N.D. 1983).

Good cause existed for justifying trial court’s order extending or continuing the trial beyond the ninety-day limitation period where, pursuant to defendant’s request, he was returned to the penitentiary, 200 miles away, denying immediate access, which did not militate in favor of an early trial; defendant expressed dissatisfaction with appointed counsel creating the need for appointment of new counsel; and defendant’s displeasure with the judge, causing the judge to recuse himself, resulted in the reassignment of the case to a new judge whose schedule was such that the matter could not be tried promptly. State v. Kania, 341 N.W.2d 361, 1983 N.D. LEXIS 419 (N.D. 1983).

The substitution of defendant’s attorney the day before trial was to begin, the court’s full schedule and an approaching state holiday combined to warrant postponement of defendant’s trial. State v. Foster, 1997 ND 8, 560 N.W.2d 194, 1997 N.D. LEXIS 5 (N.D. 1997).

Pursuant to N.D.C.C. § 29-33-03 of the North Dakota Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33, the combination of the unavailability of the state’s crime lab witness and the withdrawal of defense counsel shortly before the scheduled trial due to a conflict of interest was sufficient to constitute good cause for the delay. State v. Hinojosa, 2011 ND 116, 798 N.W.2d 634, 2011 N.D. LEXIS 109 (N.D. 2011).

District court erred in finding good cause and extending the deadlines under the statute because it did not address whether the continuance satisfied the requirements of an administrative order that suspended criminal jury trials from March through July 1, 2020; any good cause determination was untimely, and, under the statute all the district court could do was dismiss the charges for lack of jurisdiction to continue their prosecution unless the 90-day period was tolled. State v. Lafromboise, 2021 ND 80, 959 N.W.2d 596, 2021 N.D. LEXIS 82 (N.D. 2021).

Order Granting Continuance.

Absent a statute or rule to the contrary, a written order of the court granting a continuance is entered and effective when it is signed by the judge; filing of the order by the clerk is not a prerequisite. State v. Olsen, 540 N.W.2d 149, 1995 N.D. LEXIS 215 (N.D. 1995).

Under the statute extension or trial was required before July 12, 2020, but the State did not seek a continuance or attempt to schedule the trial before July 12, 2020, or did the district court grant a continuance based on good cause before July 12, 2021; therefore, the Uniform Mandatory Disposition of Detainers Act was not complied with and dismissal of the charges with prejudice was required unless the 90-day period was tolled. State v. Lafromboise, 2021 ND 80, 959 N.W.2d 596, 2021 N.D. LEXIS 82 (N.D. 2021).

District court did not err by granting the State additional time to schedule a trial and denying defendant’s motion to dismiss because an administrative order stated that the period from March 16, 2020 to July 1, 2020 would be deducted by the district court; that language dispensed with the district court’s need to make any further findings about the 90-day period because, after the June 16, 2020 continuance, the 90-day period was tolled as a matter of law. State v. Lafromboise, 2021 ND 80, 959 N.W.2d 596, 2021 N.D. LEXIS 82 (N.D. 2021).

Prejudice to Defendant.

Defendant did not show he was prejudiced by the delay of his trial, where he was already incarcerated in the state penitentiary when he requested disposition of his detainer and was incarcerated on the date of his trial, he did not claim “anxiety and concern” because of the delay, nor was there any evidence of impaired defense. State v. Foster, 1997 ND 8, 560 N.W.2d 194, 1997 N.D. LEXIS 5 (N.D. 1997).

Order granting the State’s motion for additional time to bring defendant’s case to trial was upheld where defendant was not prejudiced by the delay because he was already incarcerated on another charge; the trial court’s oral ruling finding good cause was a final order that properly granted the State’s motion for additional time. State v. Moore, 2007 ND 7, 725 N.W.2d 910, 2007 N.D. LEXIS 4 (N.D. 2007).

Right to Speedy Trial.

The defendant’s statutory right to a speedy trial was violated where his trial date was three days after the expiration of the court’s continuance order. State v. Olsen, 540 N.W.2d 149, 1995 N.D. LEXIS 215 (N.D. 1995).

Pursuant to N.D.C.C. § 29-33-03 of the North Dakota Uniform Mandatory Disposition of Detainers Act, N.D.C.C. ch. 29-33, because the first rescheduled trial date before defendant consented to further continuances was approximately 54 days beyond the 90-day limit, the delay was not excessive given the severity of the class AA felony charge facing defendant. State v. Hinojosa, 2011 ND 116, 798 N.W.2d 634, 2011 N.D. LEXIS 109 (N.D. 2011).

District court properly rejected defendant's claim that the State violated his right to a speedy trial because, while the district court scheduled a trial 96 days after defendant submitted his request to the Department of Corrections and 82 days after the district court and State's attorney had each received it, the 90-day period began when the district court and the State's attorney received defendant's request for a speedy trial and charges were statutorily required to be dismissed if not brought to trial within 90 days after the receipt of the request and certificate by the court and prosecuting official. State v. Gibson, 2017 ND 15, 889 N.W.2d 852, 2017 N.D. LEXIS 19 (N.D. 2017).

Waiver of Ninety-Day Period.

Defendant’s right to be tried within the ninety-day period is a procedural statutory right, not a fundamental constitutional right, and may be waived by defense attorney’s agreement or oral stipulations without the personal consent or presence of the defendant, either in open court or out of court. State v. Carlson, 258 N.W.2d 253, 1977 N.D. LEXIS 203 (N.D. 1977).

Written Request Required.

Right to have any pending criminal action brought to trial within 90 days of a written request does not exist where defendant did not make a written request under N.D.C.C. § 29-33-1. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

29-33-04. Request voided by escape.

Escape from custody by any prisoner subsequent to the prisoner’s execution of a request for final disposition of an untried indictment, information, or complaint voids the request.

Source:

S.L. 1971, ch. 321, § 4.

29-33-05. Exclusions.

This chapter does not apply to any person while under commitment to an institution for the mentally ill or mentally deficient.

Source:

S.L. 1971, ch. 321, § 5.

29-33-06. Prisoners to be informed of chapter.

The warden or other official having custody of prisoners shall arrange for all prisoners to be informed in writing of the provisions of this chapter and for a record thereof to be placed in the prisoner’s file.

Source:

S.L. 1971, ch. 321, § 6.

29-33-07. Application and construction.

This chapter must be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it.

Source:

S.L. 1971, ch. 321, § 7.

29-33-08. Citation of chapter.

This chapter may be cited as the Uniform Mandatory Disposition of Detainers Act.

Source:

S.L. 1971, ch. 321, § 8.

CHAPTER 29-34 Interstate Agreement on Detainers

29-34-01. Agreement on detainers.

The agreement on detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:

The contracting states solemnly agree that:

Source:

S.L. 1971, ch. 322, § 1.

ARTICLE I

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

ARTICLE II

As used in this agreement:

  1. “State” shall mean a state of the United States; the United States of America; a territory of possession of the United States; District of Columbia; the Commonwealth of Puerto Rico;
  2. “Sending state” shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof;
  3. “Receiving state” shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.
  4. Any request for final disposition made by a prisoner pursuant to paragraph 1 hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
  5. Any request for final disposition made by a prisoner pursuant to paragraph 1 hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph 4 hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
  6. Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph 1 hereof shall void the request.
    1. Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given.
    2. A duly certified copy of the indictment, information, or complaint on the basis of which the detainer has been lodged and on the basis of which a request for temporary custody of the prisoner has been made.
  7. For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
  8. From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations, or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies, and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.

ARTICLE III

1. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

2. The written notice and request for final disposition referred to in paragraph 1 hereof shall be given or sent by the prisoner to the official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

3. The official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.

ARTICLE IV

1. The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V, paragraph 1, hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.

2. Upon receipt of the officer’s written request as provided in paragraph 1 hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.

3. In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

4. Nothing contained in the Article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph 1 hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.

5. If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V, paragraph 5, hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

ARTICLE V

1. In response to a request made under Article III or Article IV, hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information, or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of federal prisoners, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner’s presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.

2. The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:

3. If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

4. The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.

5. At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.

6. During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.

ARTICLE VI

1. In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

2. No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.

ARTICLE VII

Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.

ARTICLE VIII

This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.

ARTICLE IX

This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Notes to Decisions

Applicability.
—Burden.

Where a prisoner made a prima facie showing that his delay in arriving at a federal correctional institution, allegedly caused by a detainer and written request for temporary custody issued by the state, prejudiced him and had an adverse impact on his rehabilitation program and his qualifications for extra good time credits, the State, in order to prevail in arguing that this Act was inapplicable while the prisoner was housed by the state, was required to establish that the prisoner would have remained at the state facility under the control of federal authorities regardless of the existence of the detainer and pending state charges. Runck v. State, 497 N.W.2d 74, 1993 N.D. LEXIS 16 (N.D. 1993).

—Commencement of 180 Day Period.

Commencement of 180 day period under Interstate Agreement of Detainers was not triggered where defendant served request for speedy disposition on out of state warden and warden never forwarded the request to officials of this state. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Detainer.

A detainer is simply a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction. Runck v. State, 497 N.W.2d 74, 1993 N.D. LEXIS 16 (N.D. 1993).

A writ of habeas corpus ad prosequendum and accompanying affidavits constituted both a detainer and a written request for temporary custody within the meaning of this section where the documents accompanying the writ sufficiently notified the federal authorities that the prisoner was wanted to face pending criminal charges in North Dakota, where a complaint was in existence at the time, and where the affidavit of the prosecutor informed federal authorities that the prisoner would be charged with felony criminal offenses in North Dakota. Runck v. State, 497 N.W.2d 74, 1993 N.D. LEXIS 16 (N.D. 1993).

Defendant’s request for speedy disposition of detainer under N.D.C.C. § 29-33-01 did not invoke the provisions of this section because defendant’s request did not contain a certificate from the warden of the institution where he was incarcerated as required under Article III, § 1. State v. Moe, 1998 ND 137, 581 N.W.2d 468, 1998 N.D. LEXIS 147 (N.D. 1998).

Jurisdiction.

Alleged Detainers Act violations were non-jurisdictional and did not divest district court of personal jurisdiction over the defendant. Eaton v. State, 2001 ND 97, 626 N.W.2d 676, 2001 N.D. LEXIS 105 (N.D.), cert. denied, 534 U.S. 964, 122 S. Ct. 374, 151 L. Ed. 2d 285, 2001 U.S. LEXIS 9676 (U.S. 2001).

Legislative Intent.

This Act is intended to minimize uncertainties which obstruct programs of prisoner treatment and rehabilitation caused by the existence of outstanding charges against a prisoner and detainers based on untried indictments, informations, or complaints in other jurisdictions. Runck v. State, 497 N.W.2d 74, 1993 N.D. LEXIS 16 (N.D. 1993).

Purpose.

The purpose of this Act is to encourage the expeditious and orderly disposition of outstanding charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. Runck v. State, 497 N.W.2d 74, 1993 N.D. LEXIS 16 (N.D. 1993).

Waiver.

A prisoner did not waive his right to complain of a violation of this Act by entering into a contingent guilty plea. Runck v. State, 497 N.W.2d 74, 1993 N.D. LEXIS 16 (N.D. 1993).

Where defendant stated he wished to plead guilty in order to accept responsibility for his actions and to do so early on in order to take advantage of a concurrent sentence and dismissal of other charges, the objective facts clearly demonstrated that defendant’s plea was knowing and voluntary, and therefore, constituted a waiver of alleged Detainers Act violations. Eaton v. State, 2001 ND 97, 626 N.W.2d 676, 2001 N.D. LEXIS 105 (N.D.), cert. denied, 534 U.S. 964, 122 S. Ct. 374, 151 L. Ed. 2d 285, 2001 U.S. LEXIS 9676 (U.S. 2001).

Collateral References.

Construction and Application of Article IV of Interstate Agreement on Detainers (IAD): Issues Related to “Anti-Shuttling” Provision, Dismissal of Action Against Detainee, and Adequacy of Certificate. 52 A.L.R.6th 1.

Construction and Application of Article IV of Interstate Agreement on Detainers (IAD): Issues Related to Custody, Temporary Custody, Contest as to Legality of Custody, Necessity of Hearing, and Transmittal Orders. 53 A.L.R.6th 1.

Construction and Application of Article III of Interstate Agreement on Detainers (IAD) — Issues Related to “Speedy Trial” Requirement, and Construction of Essential Terms. 70 A.L.R.6th 361.

Construction and Application of Article III of Interstate Agreement on Detainers (IAD) — Issues Related to “Speedy Trial” Requirement, and Construction of Essential Terms. 70 A.L.R.6th 361.

Construction and Application of Article III of Interstate Agreement on Detainers (IAD): Issues Related to Certificate, Request by Defendant for Disposition, and “Anti-Shuttling” Provision. 71 A.L.R.6th 335.

Construction and Application of Article III of Interstate Agreement on Detainers (IAD): Issues Related To Custody, Duties of Prison Officials, Waiver of Extradition, Escape, Assistance of Counsel, and Necessity of Hearing. 72 A.L.R.6th 141.

29-34-02. Definition — Appropriate court.

The phrase “appropriate court” as used in the agreement on detainers, with reference to the courts of this state, means any court with criminal jurisdiction in the matter involved.

Source:

S.L. 1971, ch. 322, § 2.

29-34-03. Enforcement and cooperation directed.

All courts, departments, agencies, officers, and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

Source:

S.L. 1971, ch. 322, § 3.

29-34-04. Application of habitual criminal law not required.

Nothing in this chapter or in the agreement on detainers may be construed to require the application of the habitual criminal law of this state to any person on account of any conviction had in a proceeding brought to final disposition by reason of the use of said agreement.

Source:

S.L. 1971, ch. 322, § 4.

29-34-05. Escape from custody.

Escape or attempt to escape from custody, whether within or without this state, while in the temporary custody of an authority of another state acting pursuant to the agreement on detainers constitutes an offense against the laws of this state. Such escape or attempt to escape constitutes an offense to the same extent and degree as an escape from the institution in which the prisoner was confined immediately prior to having been released to temporary custody, and is punishable in the same manner as an escape or attempt to escape from said institution.

Source:

S.L. 1971, ch. 322, § 5.

29-34-06. Lawful and mandatory to give over inmates.

It is lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate thereof whenever so required by the operation of the agreement on detainers.

Source:

S.L. 1971, ch. 322, § 6.

29-34-07. Attorney general shall be the administrator.

The attorney general is hereby designated as the officer who must be the central administrator of and information agent for the agreement on detainers as provided in Article VII of the agreement.

Source:

S.L. 1971, ch. 322, § 7.

29-34-08. To whom copies of this chapter must be sent.

Copies of this chapter must, upon its approval, be transmitted to the governor of each state, the attorney general and the administrator of general services of the United States, and the council of state governments.

Source:

S.L. 1971, ch. 322, § 8.