State v. Hunt

Decision Date21 April 1980
Docket NumberCr. N
Citation293 N.W.2d 419
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. George Alan HUNT, Defendant and Appellee. o. 717-A.
CourtNorth Dakota Supreme Court

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellant.

Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for defendant and appellee; argued by James Wright, Jamestown.

SAND, Justice.

A complaint was lodged against George Alan Hunt in Stutsman County Court with Increased Jurisdiction on 14 Sept. 1978 charging him with aggravated reckless driving (DUI) on 8 Aug. 1978 in Stutsman County. The defendant Hunt filed an affidavit of prejudice against Harold B. Herseth, Judge of Stutsman County Court with Increased Jurisdiction. Judge Herseth, in accordance with and pursuant to the provisions of § 27-08-38, NDCC, requested Judge Dennis A. Schneider, of the Burleigh County Court with Increased Jurisdiction, to sit in his stead. Judge Dennis Schneider honored the request. The defendant moved for a change of venue, which was denied on 15 Dec 1978. On 24 Apr 1979 the defendant with counsel, and the assistant state's attorney, appeared before Judge Schneider, at which time the defendant pleaded guilty to the crime of aggravated reckless driving. The transcript of the hearing states:

"THE COURT: This is the time set for the trial of the case entitled State of North Dakota v. George Alan Hunt, a Stutsman County case which this Court was assigned pursuant to a demand for change of judge and disqualification. The matter is being heard in Burleigh County following the Court's granting a motion for a change of venue." 1

An order changing the venue was never entered. 2

Judge Schneider sentenced the defendant Hunt to serve one year in Stutsman County jail, eight months to be served commencing 24 Apr 1979 in the following manner: Each day for the first six months the defendant shall report to Stutsman County Jail on or before 8:00 PM and shall be released at or about 8:00 AM the following date, with the exception of Sundays, which the defendant shall serve in their entirety, except during farming season for working purposes. That the defendant shall accumulate for time served on the basis of twelve hours per day for those days that he is released for farming purposes. At the end of the six months the defendant shall serve two months in the Stutsman County Jail without release during the daytime as provided above. In said manner the defendant shall accumulate a total of five months and thirteen days served.

The balance of the one year in the Stutsman County jail, after credit for the above mentioned five months and thirteen days credited to the defendant, shall be suspended on the following conditions: (1) The defendant shall not consume any alcoholic beverages for a period of two years, and (2) he shall submit to a breathalyzer test at the request of the sheriff or jailer to determine if he has any blood alcohol content in his system. The order further spelled out details of the conditions under which he would be released.

Apparently the defendant violated the conditions of his release concerning the consumption of alcoholic beverages which brought about revocation proceedings. On 12 Sept 1979 counsel for the defendant and the assistant state's attorney stipulated that a breath test was administered to the defendant on 27 July 1979 which revealed a 0.26 blood alcohol content. It was further stipulated that the defendant had accumulated 53 days' service upon his sentence and that 312 days remained to be served, and that the end of the sentence would be 4 June 1980.

On 18 Sept 1979 the defendant waived any right to a hearing pertaining to the revocation of his suspended sentence and conditional work release, whereupon an order of the court by Judge Schneider was entered on 19 Sept 1979 ordering him to serve the full sentence without work release, to be served in its entirety until 4 June 1980.

Judge Dennis A. Schneider was appointed to the District Court effective 15 Oct 1979, and assumed the duties of the office the same date. Burt L. Riskedahl was appointed to the County Court with Increased Jurisdiction to fill the vacancy which was left by Dennis Schneider's elevation to the District Court and assumed those duties on 15 Oct 1979.

On 6 March 1980 Hunt, pursuant to the provisions of § 12-53-04, NDCC, made an application for parole to the County Court with Increased Jurisdiction, Stutsman County, and gave notice to John E. Greenwood, assistant state's attorney, that his application for parole will be brought on for hearing on the 13 day of March 1980 at 10 o'clock a. m., in the court rooms of the courthouse in Jamestown, North Dakota, before the Honorable Burt L. Riskedahl, or as soon thereafter as counsel may be heard. The state's attorney and assistant state's attorney both filed a return to the application for parole. Neither return challenged the authority of Burt L. Riskedahl sitting as judge in Stutsman County court with increased jurisdiction. The hearing was held in the courtroom of Stutsman County, Jamestown, North Dakota, on 13 March 1980 at 10:30 a. m., and the court on 18 March 1980 issued its order amending judgment of conviction and granting parole. The court amended the defendant's sentence as follows: (1) commencing April 1, 1980, defendant shall be released from the Stutsman County jail between the hours of 8:00 a. m. and 8:00 p. m. under the same terms as set forth in the judgment of conviction dated April 24, 1979. (2) Based on his adjustment while incarcerated, and based on his attaining the status of "trustee" since his incarceration on July 27, 1979, the defendant will be granted a sentence reduction in accordance with the intent of North Dakota Century Code 12-54.1-01(2), totaling 48 days.

Even though the application referred to § 12-53-04, NDCC, the judge granted it under § 12-54.1-01(2), NDCC, which only applies to prisoners in the State penitentiary or farm.

The state's attorney appealed from the memorandum and order amending judgment of conviction granting parole dated March 18, 1980, and at the same time moved the supreme court for an order staying the memorandum and order dated 18 March 1980. The supreme court granted a temporary stay until further order of the court and set an early date for hearing on the merits.

Section 29-28-07 sets forth 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 deprivation of the use of the property ordered to be returned or suppressed or of a confession or admission ordered to be suppressed has rendered the proof available to the state with respect to the criminal charge filed with the court, (1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed. The statement shall be filed with the clerk of district court and a copy thereof shall accompany the notice of appeal."

In the application for a stay order, and initially in the appeal, it was contended that Judge Riskedahl acted without authority in issuing the parole order from which the State appealed. This was recognized as an issue and the parties were directed to submit briefs covering this specific issue.

We will first consider the question whether or not the order granting parole is appealable.

In State v. Rueb, 249 N.W.2d 506 (N.D.1976), involving the State's right to appeal, we were primarily concerned with the procedures that need to be followed rather than the individual judgment of the trial judge in reducing the sentence. Here we are primarily concerned whether or not the judge had jurisdiction over the case, and if he acted within the authority granted to him.

We conclude that this appeal is authorized under the provisions of § 29-28-07(4), NDCC, on the basis that an order issued by a judge allegedly having no authority to act in the matter is one which affects the substantial rights of the State. The fact that the authority of the judge must be decided on appeal, and even if it is determined that the judge had authority to act, does not alter the appealability of the order.

We will now consider under what authority, if any, Judge Riskedahl, of the Burleigh County Court with Increased Jurisdiction, acted in considering the application for parole and granting parole to the defendant Hunt.

The statutes under the Title of County Courts of Increased Jurisdiction do not provide for a change of venue in criminal cases, but § 27-08-24, NDCC, provides that:

"The provisions of law and rules of practice and procedure applicable to the district courts in civil and criminal actions, including those relating to selection of jurors, issuance and service of process, pleading, adjournments of court, place of trial, trial of actions, taxation of costs, issuance of execution, granting of new trials, preparation of statements of the case, and appeals to the supreme court and the use of provisional remedies, in so far as such provisions of law and rules of practice and procedure are applicable, shall apply to county courts with increased jurisdiction . . . ."

We also note that Rule 1 of the North Dakota Rules of Criminal Procedure provides as follows:

"Except as otherwise provided by statute and in Rule 54, these Rules govern the practice and procedure in all criminal proceedings in the district courts and, so far as applicable, in all other courts, including provisions for violations of municipal ordinances."

Therefore, in addition to the criminal rules we look to the laws...

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4 cases
  • City of Fargo v. Dawson
    • United States
    • United States State Supreme Court of North Dakota
    • February 21, 1991
    ...of Mandan v. Olson, 280 N.W.2d 920, 927 (N.D.1979); Arneson v. Olson, 270 N.W.2d 125, 131-132 (N.D.1978); but compare State v. Hunt, 293 N.W.2d 419, 424 (N.D.1980).We also note that the Rules of Criminal Procedure, including Rule 1 in its present form, became effective on November 1, 1973, ......
  • State v. Owens
    • United States
    • United States State Supreme Court of North Dakota
    • November 6, 1997
    ...547-48 (N.D.1974). The authority of a judge to act in a case has been held to affect the substantial rights of the state. State v. Hunt, 293 N.W.2d 419, 422 (N.D.1980).3 The holding in Nace has been superseded in part by legislation, see NDCC 12.1-32-06.1, but its holding about challenging ......
  • State v. Klose
    • United States
    • United States State Supreme Court of North Dakota
    • May 12, 1983
    ...our double jeopardy clause different from that mandated by the double jeopardy clause of the United States Constitution.3 In State v. Hunt, 293 N.W.2d 419 (N.D.1980), we noted that both defense counsel and the state's attorney share a responsibility to provide that the record reflects what ......
  • State v. Lawson, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • October 25, 1984
    ...Code." That section, with respect to probation or parole from a county jail sentence, was not superseded by Rule 35. State v. Hunt, 293 N.W.2d 419, 424 (N.D.1980). Lawson relies on State v. Goeller, 275 N.W.2d 341, 345 (N.D.1979) for his argument that we should not reverse and remand a case......

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