State v. Guthmiller, Cr. N
| Citation | 497 N.W.2d 407 |
| Decision Date | 11 March 1993 |
| Docket Number | Cr. N |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Dallas GUTHMILLER, Defendant and Appellant. o. 920314. |
| Court | North Dakota Supreme Court |
Robert A. Freed (argued), Asst. State's Atty., Jamestown, for plaintiff and appellee.
James A. Sanchez-Wentz (argued), Jamestown, for defendant and appellant.
We remand an appeal of a criminal conviction to the trial court to determine whether there was excusable neglect for a late-filed notice of appeal.
At 7:15 p.m. on April 25, 1992, Deputy Sheriff Sergeant Bradley Kapp received a call from the state radio operator saying that an anonymous informant had reported "a DUI driver." The tip gave the vehicle's description, license number, and direction. Kapp soon found the vehicle stopped at an interstate highway exit. After an investigation, Kapp arrested the vehicle's driver, Dallas Guthmiller, for violating NDCC 39-08-01 by driving while under the influence of intoxicating liquor. After a trial without a jury on October 9, 1992, the trial court convicted Guthmiller.
On October 19, 1992, Guthmiller's attorney signed a notice of appeal, but did not file it in the office of the Clerk of County Court until October 20. The notice of appeal was filed too late to give us jurisdiction to review the conviction.
Because the notice of appeal was filed on the eleventh day after entry of judgment, we do not have jurisdiction of this appeal. State v. Franck, 495 N.W.2d 60 (N.D.1993). See NDRAppP 4(b)(3); 1 NDRCrimP 37(b). If the notice of appeal is not timely filed with the clerk of the trial court within ten days after the entry of the judgment or order appealed from in a criminal case, this court does not have jurisdiction. Franck; State v. Neigum, 369 N.W.2d 375, 377 (N.D.1985). Compare State v. Lewis, 300 N.W.2d 206 (N.D.1980) (). The time limit for filing the notice of appeal is mandatory and jurisdictional, and it cannot be waived by the supreme court. Neigum at 377. In Franck, we recently remanded another criminal conviction to allow the trial court to determine whether excusable neglect extended the time for filing.
As in Franck, pursuant to the appellant's motion during oral argument, we remand to the trial court to determine whether there was excusable neglect to extend the time for filing the notice of appeal. If the trial court so determines, we direct that the record be promptly returned to this court...
To continue reading
Request your trial
-
State v. Reid, No. 17554.
...which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them"); State v. Guthmiller, 497 N.W.2d 407, 408 (N.D. 1993) (time limit for filing notice of appeal is jurisdictional); Cleveland Electric Illuminating Co. v. Lake County Board of Re......
-
State v. Fischer, 20060153.
...for filing a notice of appeal is mandatory and jurisdictional, and cannot be waived by the supreme court. See, e.g., State v. Guthmiller, 497 N.W.2d 407 (N.D.1993). The supreme court may not extend the time to file a notice of appeal in this case. N.D.R.App.P. 26(b); cf. N.D.C.C. § 27-20-05......
-
State v. DuPaul
...it is signed or mailed, is the crucial date, and filing on the eleventh day after the entry of judgment is untimely. State v. Guthmiller, 497 N.W.2d 407, 408 (N.D.1993), merits decided after trial court found excusable neglect extended time for appeal, 499 N.W.2d 590 (N.D.1993); State v. Fr......
-
Rahn v. State, 20070022.
...court. E.g., State v. DuPaul, 527 N.W.2d 238, 243 (N.D.1995); McMorrow v. State, 516 N.W.2d 282, 283 (N.D.1994); State v. Guthmiller, 497 N.W.2d 407, 408 (N.D. 1993). An appeal from an order denying a motion to correct an illegal sentence must be filed within thirty days of entry of the ord......