City of Bismarck v. Altevogt, Cr. N

• Decision Date: 11 July 1984
• Docket Number: Cr. N
• Citation: 353 N.W.2d 760
• Parties: CITY OF BISMARCK, Plaintiff and Appellee, v. John D. ALTEVOGT, Defendant and Appellant. os. 990, 991.
• Court: North Dakota Supreme Court

Page 760

353 N.W.2d 760

CITY OF BISMARCK, Plaintiff and Appellee, v. John D. ALTEVOGT, Defendant and Appellant.

Cr. Nos. 990, 991.

Supreme Court of North Dakota.

July 11, 1984.

Hugh Patrick Seaworth, City Atty., Bismarck, for plaintiff and appellee; argued by Paul H. Fraase, Asst. City Atty., Bismarck.

John D. Altevogt, pro se.

ERICKSTAD, Chief Justice.

John D. Altevogt appeals from an order of the County Court of Burleigh County dated January 18, 1984, dismissing his appeal to that court from a judgment of conviction entered by the municipal court for the City of Bismarck. The dispositive issue in this case is whether or not a timely notice of appeal to the county court was filed pursuant to Rule 37(b), N.D.R.Crim.P. We reverse and remand for a new trial in county court before a jury.

Altevogt was charged on September 8, 1983, with violating two Bismarck ordinances concerning the keeping of dogs: Bismarck Code of Ordinances--Section 6-70, being the owner or keeper of a dog permitted to run at large, and Section 6-84, keeping, maintaining or having in custody or under control an unlicensed dog over the age of six months. A trial was held on November 3, 1983, before the Honorable Keith Wolberg, Bismarck municipal judge. The court found Altevogt guilty of the violations charged and imposed a fine of $75, with $50 suspended, for each violation and also assessed a $50 feeding/caring and impoundment fee.

Altevogt filed a notice of appeal dated November 15, 1983, with the clerk of the municipal court, requesting a stay of sentence and jury trial in county court. A certified copy of the criminal docket signed by the clerk of the municipal court indicates that judgment was entered on Thursday, November 3, 1983. The county court, on motion by the city attorney, dismissed the appeal for the reason that the notice of appeal was not timely filed:

"The court finds that the notice of appeal was not filed within the 10-day period as required by law. For this reason, this court lacks jurisdiction to hear this appeal."

Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created and can be acquired and exercised only in the manner prescribed. City of Bismarck v. Walker, 308 N.W.2d 359, 361 (N.D.1981). The right of appeal is determined by statute. Id. Section 40-18-19, N.D.C.C., which authorizes an appeal from a determination of a municipal judge, reads in pertinent part:

"An appeal may be taken to the district court or the county court from a judgment of conviction in a municipal court in accordance with the North Dakota Rules of Criminal Procedure. An appeal shall be perfected by notice of appeal.... An appeal to the district court or county court, when perfected, transfers the action to such court for trial anew."

Rule 37(b), N.D.R.Crim.P., reads:

"Time for Appeal; When Taken. The notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of the verdict, decision, sentence, or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. When an appeal by the prosecution is authorized by statute, the notice of appeal shall be filed with the clerk of the trial court within 30 days after the entry of judgment or order appealed from. A judgment or order is entered within the meaning of this Subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Subdivision." [Emphasis added.]

The computation of the ten-day period for purposes of Rule 37(b) is governed by Rule 45(a), N.D.R.Crim.P. ¹ In applying Rule 45(a), we find that Altevogt had until the end of the day on Monday, November 14, 1983, in which to file a notice of appeal "within 10 days after the entry of the judgment." This he failed to do.

In State v. Metzner, 244 N.W.2d 215, 220 (N.D.1976), we discussed the consequences of an untimely filing of a notice of appeal:

"The United States Supreme Court has held that the time requirement within which a defendant in a criminal action must file notice of appeal is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) (per curiam ); 9 Moore's Federal Practice p 204.16, .... The requirement pursuant to Rule 4(b), N.D.R.App.P., and Rule 37(b), N.D.R.Crim.P., is likewise mandatory and jurisdictional. Unless extended by the district court, upon a showing of excusable neglect, compliance with the ten-day limit set forth by Rule 4(b), N.D.R.App.P., and by Rule 37(b), N.D.R.Crim.P., is required.... [W]e cannot waive compliance with the jurisdictional requirement that the notice of appeal be timely filed. Rule 26(b), N.D.R.App.P."

Rule 37(b), N.D.R.Crim.P., is intended to be applied in the same manner as Rule 4(b), N.D.R.App.P., ² depending on the court in which the case was originally heard. State v. Metzner, supra, 244 N.W.2d at 219 n. 1. In State v. Lawson, 321 N.W.2d 514, 515 (N.D.1982), we said, concerning the time limitations outlined in Rule 4(b), that "[a]n appeal not filed within the specified time must be dismissed unless it can be shown that the failure to file was excusable neglect, or that the time was extended by the trial court. City of Minot v. Lundt, 268 N.W.2d 482 (N.D.1978)."

The probability of inadvertent failure by a defendant to timely file the notice of appeal in a criminal case is reduced by the fact that Rule 32(a)(2), N.D.R.Crim.P., requires that the court advise the defendant, after imposing sentence in a case gone to trial on a plea of not guilty, of his right to appeal. In addition, the trial court may extend the time for filing the notice of appeal for a period not to exceed thirty days--for a total of forty days--upon a showing of excusable neglect. Rule 37(b), N.D.R.Crim.P.

Altevogt concedes that he was advised by Judge Wolberg of his right to appeal within 10 days; nevertheless, he argues that he was not informed whether or not weekends and holidays ³ were included in the computation of the time period. Rule 45(a), N.D.R.Crim.P., [see footnote 1, supra ], clearly sets forth the method by which any period of time consisting of seven or more days is computed. Altevogt represented himself at trial, throughout the appeal process, and in this court; however, a defendant may not invoke his pro se status as a defense from the result of his own neglect in failing to file a timely appeal. "[R]ules or statutes on procedure will not be modified or applied differently merely because a party not learned in the law is acting pro se." Hennebry v. Hoy, 343 N.W.2d 87, 90 (N.D.1983). See also Jensen v. Zuern, 336 N.W.2d 330, 331-32 (N.D.1983).

Altevogt's confusion apparently arose from his assumption that the ten-day period in which he had to file the notice of appeal consisted only of "working" days. Altevogt argues that this erroneous assumption on his part concerning the computation of the time period constitutes excusable neglect warranting an extension of the time for filing the notice of appeal.

We have said in a civil case that a " 'plausible misconstruction of the rules' " may be grounds for a showing of excusable neglect pursuant to Rule 4(a), N.D.R.App.P. State Bank of Burleigh County v. Johnson, 303 N.W.2d 520, 523 (N.D.1981) [quoting 9 Moore's Federal Practice p 204.13 at 4-96 to 97 (2d ed. 1980) ]. The limited record in this case does not indicate, however, that Altevogt raised before the trial court, the municipal court, the question of excusable neglect in terms of his alleged confusion and apparent misconstruction of the rule governing the computation of the ten-day period. An opinion and order of the municipal court dated February 8, 1984, indicates the court received a "notice of appeal" from Altevogt dated January 25, 1984, requesting the court to "force" the county court to reconsider its decision to dismiss the appeal of November 15, 1983. Altevogt filed a brief with the municipal court which, according to Judge Wolberg, interposed "an application for an appointed attorney as some basis for his [Altevogt's] apparent delay in filing a notice of appeal." The court noted that Altevogt's application for appointed counsel was earlier denied because the court typically does not impose jail time for convictions arising from the violation of animal regulations. The court concluded in its opinion that it was presented no justification nor had it jurisdiction to rule on Altevogt's "notice of appeal."

Altevogt argued before this Court that the dismissal of his appeal to the county court effectively denied him the right to a trial by jury. We find that the consideration of this additional factor--the right to trial by jury--constitutes, under the circumstances of this case, a showing of excusable neglect warranting an extension of time for filing the notice of appeal, by one day, to November 15, 1983. This is a factor that should also have been presented to the municipal court and possibly the county court prior to appeal to our court but for reasons stated herein we will not require that in this case.

The ...