State v. Hogie, 870246

• Decision Date: 16 May 1988
• Docket Number: No. 870246,870246
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Robert HOGIE, Jr., Defendant and Appellee. Crim.
• Court: North Dakota Supreme Court

Page 630

424 N.W.2d 630

STATE of North Dakota, Plaintiff and Appellant, v. Robert HOGIE, Jr., Defendant and Appellee.

Crim. No. 870246.

Supreme Court of North Dakota.

May 16, 1988.

Wendy P. Schulz (argued), Jamestown, for plaintiff and appellant.

Gilje, Greenwood & Dalsted, Jamestown, for defendant and appellee; argued by John E. Greenwood.

LEVINE, Justice.

The State appeals from an oral ruling granting Robert Hogie, Jr.'s motion for judgment of acquittal. Because we hold that the judgment of acquittal is in effect a dismissal of the information, we deny Hogie's motion to dismiss the appeal. We also affirm dismissal of the information.

Hogie was charged in a criminal information with:

"Theft of Property, a Class B Felony in violation of Sec. 12.1-23-02(1), Sec. 12.1-23-05(1), North Dakota Century Code, by then and there defendant did knowingly take or exercise unauthorized control over the property of another; said property exceeding ten thousand dollars in value; to-wit: a 1987 Chevy Camero [sic] automobile, ..."

After the State presented its evidence and rested its case, Hogie moved for a judgment of acquittal on the ground that theft of an automobile may be charged only as a class C felony, and not as a class B felony. ¹ The trial court orally granted the motion and dismissed the jury. The trial court subsequently signed a written order granting the motion for judgment of acquittal and a judgment of acquittal was entered.

After the written order and judgment were entered, the State appealed from the oral ruling, contending that it constituted a dismissal of the information and asserting that the trial court erred in determining that automobile theft may not be charged as a class B felony. Hogie moved to dismiss the appeal on the ground that the State may not appeal from an acquittal because further prosecution after a successful appeal would violate the Double Jeopardy Clause of the state and federal constitutions.

1. motion to dismiss

The State appealed from the trial court's oral ruling granting Hogie's motion for judgment of acquittal. An oral ruling on a motion is not an appealable order. State v. Klocke, 419 N.W.2d 918 (N.D.1988). "An order must be in writing. It must be signed by the judge. And the motion is pending until such time as a signed written order granting or denying it is made." Id., 419 N.W.2d at 919, quoting State v. New, 75 N.D. 433, 435, 28 N.W.2d 522, 523 (1947). However, because a signed written order and a judgment consistent with the oral ruling were subsequently entered, we will treat the State's appeal as an appeal from the judgment. See State v. Klocke, supra. Cf., Olson v. Job Service North Dakota, 379 N.W.2d 285 (N.D.1985) (appeal from an "order" will be deemed properly before this court if the record contains a "judgment" which is consistent with the order); Federal Savings & Loan Ins. Corp. v. Albrecht, 379 N.W.2d 266 (N.D.1985) (appeal from a "memo" will be treated as an appeal from a "judgment" consistent with the memo).

"In a criminal action, the State has only such right of appeal as is expressly conferred by statute." State v. Flohr, 259 N.W.2d 293, 295 (N.D.1977). Section 29-28-07(1), N.D.C.C., provides that the State may appeal from "[a]n order quashing an information or indictment or any count thereof." A district court order dismissing an information at the close of the State's case or other order which has the effect of quashing an information is appealable under Sec. 29-28-07(1), N.D.C.C. State v. Iverson, 219 N.W.2d 191 (N.D.1974); State v. Allesi, 211 N.W.2d 733 (N.D.1973). "[I]t is not the label which controls, but rather the effect." State v. Howe, 247 N.W.2d 647, 652 (N.D.1976). Thus, 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.

Section 29-28-07, N.D.C.C., does not authorize the State to appeal from an acquittal. State v. Flohr, supra. We must determine whether the trial court's ruling "actually represents a resolution of some or all of the factual elements of the offense charged" ( Flohr, supra, 259 N.W.2d at 295), thus constituting an acquittal, which is not appealable, or is an order which, regardless of its label, has the same effect as an order quashing an information.

Two decisions of the United States Supreme Court have direct bearing on our analysis of the appealability of the judgment in this case. Those decisions, decided the same day, are United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978).

Sanabria barred a government appeal of an acquittal based on insufficiency of the evidence, even though the determination that the evidence was insufficient resulted from erroneous legal rulings construing the indictment and excluding most of the evidence of defendant's guilt:

"We must assume that the trial court's interpretation of the indictment was erroneous. See n. 13, supra. But not every erroneous interpretation of an indictment for purposes of deciding what evidence is admissible can be regarded as a 'dismissal.' Here the District Court did not find that the count failed to charge a necessary element of the offense, cf. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); rather, it found the indictment's description of the offense too narrow to warrant the admission of certain evidence. To this extent, we believe the ruling below is properly to be characterized as an erroneous evidentiary ruling, which led to an acquittal for insufficient evidence. That judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error."

Sanabria, supra, 437 U.S. at 68-69, 98 S.Ct. at 2181, 57 L.Ed.2d at 56-57. Because the trial court found the defendant not guilty because of a failure of proof on a factual element of the offense charged, even though induced by erroneous legal rulings, there was an acquittal which barred further prosecution and the government could not appeal.

At the close of all the evidence, the trial court in United States v. Scott, supra, granted defendant's motion to dismiss two counts of an indictment because of pre-indictment delay. The United States Supreme Court reversed the Court of Appeals decision dismissing the government's appeal. On what constitutes a nonappealable acquittal, the court said, 437 U.S. at 97, 98 S.Ct. at 2197, 57 L.Ed.2d at 78:

"[A] defendant is acquitted only when 'the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged,' [U.S. v.] Martin Linen, supra, 430 U.S., at 571, 97 S.Ct., [1349] at 1355 . Where the court, before the jury returns a verdict, enters a judgment of acquittal pursuant to Fed.Rule Crim.Proc. 29, appeal will be barred only when 'it is plain that the District Court ... evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction.' 430 U.S., at 572, 97 S.Ct., at 1355."

On the matter of double jeopardy, the court said, 437 U.S. at 98-99, 98 S.Ct. at 2198, 57 L.Ed.2d at 79:

"We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant.... [T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.... [I]n the present case, respondent successfully avoided such a submission [of his factual guilt or innocence] of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him."

The judgment of acquittal states only that Hogie "is hereby acquitted of the charge of theft of property under N.D.C.C. Sec. 12.1-23-05(1), a Class B felony." The order granting Hogie's motion states only that the "motion for judgment of acquittal is hereby granted and the Clerk of District Court is hereby ordered to enter judgment of acquittal." Therefore, in order to "look at the substance of the judge's ruling" to "determine whether it actually represents a resolution of some or all of the factual elements of the offense charged" ( State v. Flohr, supra, 259 N.W.2d at 295), we must examine the trial court's oral statements. In granting Hogie's motion, the trial court said:

"Mr. Paulson, you charged the man with a Class B felony and under out [sic] Statute, 12.1-23-05(2)(d), the statute says, 'Theft under this chapter is a class C felony if: The property stolen is a firearm, ammunition, explosive or destructive device, or an automobile' and notwithstanding the value if it's an automobile it has to be charged as a Class C felony. The purpose of this statute is not to allow the State to charge a Class B if the value of an automobile is over $10,000 or less if it's under."

In discharging the jury, the court said:

"The Motion for Acquittal is basically what you classify as a Motion for Dismissal which means the case stops at this particular point."

Thus, it is clear that 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. By moving for a judgment of acquittal on the ground...