State v. Bohn, 1237
| Decision Date | 28 May 1987 |
| Docket Number | No. 1237,1237 |
| Citation | 406 N.W.2d 677 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. George W. BOHN, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
Phyllis A. Ratcliffe, State's Atty., Carson, for plaintiff and appellee State of North Dakota.
Benjamin C. Pulkrabek, of Pulkrabek & Tuntland, Mandan, for defendant and appellant.
George Bohn appealed from the judgment of conviction entered by the county court of Grant County for hunting on posted land in violation of Section 20.1-01-18, N.D.C.C. We reverse and remand for a new trial.
Bohn was charged with two counts of hunting on posted land, each of which is a Class B misdemeanor. At his arraignment Bohn was informed of the nature of the charges against him and the maximum penalty he could receive. The trial court also informed Bohn of his constitutional rights including his right to trial by jury. Bohn then pleaded not guilty to both charges. Trial was before the judge without a jury, and resulted in Bohn's being convicted of one count and the remaining count being dismissed. The court then sentenced Bohn to 30 days in jail with 28 days suspended, imposed a $500 fine, $250 of which was suspended, and suspended Bohn's hunting and fishing privileges for one year. 1 Bohn was not represented by counsel during the proceedings in the trial court.
On appeal Bohn claims that he was denied his right to a jury trial. However, the State asserts that we cannot reach that issue because Bohn did not file a timely notice of appeal. Pursuant to Rule 37, N.D.R.Crim.P., appeals shall be taken by filing a notice of appeal with the clerk of the trial court within ten days of the entry of judgment.
On November 20, 1986, after the trial court sentenced Bohn, the following exchange took place:
Additionally, the trial court stated in the November 20, 1986, criminal judgment:
"This Judgment will suffice for the purposes of notice of appeal and the Clerk of the County Court, Grant County, Carson, ND shall proceed on the basis that the defendant has as of the date of this Criminal Judgment filed a proper Notice of Appeal pursuant to Rule 37, Rules of Criminal Procedure."
Bohn filed a notice of appeal with the clerk of court on December 15, 1986, and his attorney filed an additional notice of appeal on December 17.
The State asserts that Bohn's oral statement to the trial court was merely a statement of his intention to file an appeal in the future. Additionally, the State asserts that the trial court's acceptance of Bohn's oral notice of appeal was ineffective because it had no authority to authorize a method of appealing which conflicted with the rules or statutes. In essence, the State claims that Bohn failed to file a written notice of appeal with the clerk of court and therefore his actions were meaningless.
In State v. Lewis, 300 N.W.2d 206 (N.D.1980), the defendant was convicted on January 11. On January 18, Lewis mailed a notice of appeal to the trial judge at his chambers, and to the State's Attorney. On February 19, the trial judge wrote a letter to Lewis, informing him that notices of appeal had to be filed with the clerk of court. Lewis did not file a notice of appeal as suggested by the trial judge. Upon learning that Lewis had not filed the notice with the clerk of court, the trial judge filed Lewis's notice of appeal on April 10.
In Lewis, supra, at 208, we noted that:
Because of the peculiar facts in Lewis we held that his notice of appeal was sufficient to give this court jurisdiction over the appeal.
In this case, Bohn notified the trial judge in open court that he intended to appeal. By doing so he informed both the judge and the State's Attorney of his intent to appeal. Thus, as in Lewis, the State cannot now be heard to complain that it did not know that Bohn intended to appeal. Also as in Lewis, Bohn gave his notice of appeal to the judge rather than the clerk of court. Thus he did communicate to the court his intent to appeal.
Additionally, as we have noted, the trial judge informed Bohn that his notice of appeal would be effective. The State's Attorney did not attempt to correct or clarify the judge's statement, and Bohn apparently relied on the judge's statement and the State's Attorney's acquiescence. The judge stated that there would not be any technical problems with Bohn's notice of appeal. Furthermore, the judgment of conviction provided that it would suffice for the purposes of Bohn's notice of appeal. This document was filed with the clerk of court and thus serves to bolster the argument that Bohn's oral notice of appeal, set forth in the criminal judgment, was properly and timely filed.
Further support for Bohn's contention that his notice of appeal was timely is found in Rule 32(a)(2), which provides in part: "After imposing sentence in a case that has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of the person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal." [Emphasis added.] The explanatory note to Rule 37, N.D.R.Crim.P., states: "The provision in Rule 32 which requires that the defendant be advised of his right to appeal and the right of a person who is unable to pay the cost of appeal to have it provided at public expense is clearly a necessary part of a valid sentence and until it is given, the 10-day period for taking an appeal cannot begin to run because there is no valid sentence in existence." Bohn may have been aware of his right to appeal, but that does not fulfill the requirement of Rule 32 that the judge shall inform him of his rights. Examination of the trial transcript reveals that the judge never informed Bohn of his right to appeal or his right to court-appointed counsel on appeal.
Lastly, the judge could have extended the time for appeal pursuant to Rule 4(b), N.D.R.App.P. Under that rule, the trial judge is permitted, upon a showing of excusable neglect,...
To continue reading
Request your trial
-
State v. Bakke, Cr. N
...counsel." [Footnotes omitted]. The State asserts, however, that we are bound by the North Dakota Supreme Court's decision in State v. Bohn, 406 N.W.2d 677 (N.D.1987). In Bohn, the Court reversed a pro se defendant's conviction because the record did not disclose an express waiver of the rig......
-
City of Fargo v. Dawson
...of the prosecutor under Rule 23(a) is one of the requirements for a valid waiver of a jury trial in county court. See State v. Bohn, 406 N.W.2d 677, 680 (N.D.1987); State v. Mathisen, 356 N.W.2d 129, 134 (N.D.1984); State v. Kranz, supra, 353 N.W.2d at 750. Respondents assert, however, that......
-
State v. Gates, 920131
...defendant specifically indicating" that the right has been waived. Id.; see also State v. Hegg, 410 N.W.2d 152 (N.D.1987); State v. Bohn, 406 N.W.2d 677 (N.D.1987). Applying these principles to the State's argument that Gates impliedly waived her right to a jury trial, we are bound by the s......
-
A.O., In Interest of, 890169
...To support his argument, counsel for A.O. cited decisions in criminal cases, State v. Carmody, 243 N.W.2d 348 (N.D.1976) and State v. Bohn, 406 N.W.2d 677 (N.D.1987). In Carmody, this court ruled that the failure of a sentencing court to advise a criminal defendant of his right to appeal co......