State v. Jensen, 892

Decision Date19 April 1983
Docket NumberNo. 892,892
Citation333 N.W.2d 686
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Herbert O. JENSEN, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Herbert O. Jensen, pro se.

Vincent A. LaQua, State's Atty., Fessenden, Robert J. Udland (argued) and John E. Jacobson, Asst. Attys. Gen., Bismarck, for plaintiff and appellee.

PAULSON, Justice.

Herbert O. Jensen, appearing pro se, appeals from a "judgment" of the District Court of Wells County denying his applications for post-conviction relief and his motion for a new trial. We dismiss the appeal as to the trial court's denial of his applications for post-conviction relief and affirm the trial court's denial of his motion for a new trial.

On November 18, 1974, Jensen was charged with two counts of murder in the first degree. The charges stemmed from the shooting deaths of Dale Abraham and Ernest Vivier, whose bodies were discovered during the early morning hours of November 16, 1974, lying on the shoulder of U.S. highway 52, approximately four miles west of Harvey. After the state had presented its case in chief during the trial before a jury, the court ordered that the charges be reduced to murder in the second degree. The jury found Jensen guilty on both counts and he was subsequently sentenced to twenty years' imprisonment on each count and an additional ten years' confinement on each count as a dangerous special offender. The sentences were ordered to be served concurrently. Jensen appealed his convictions to our court, and in an opinion dated February 17, 1977, we reversed and remanded the case for a new trial based upon improper instructions to the jury and prejudicial error in the exclusion of evidence. See State v. Jensen, 251 N.W.2d 182 (N.D.1977).

At the commencement of his second trial, on October 4, 1977, the State filed two criminal informations charging Jensen with murder in the second degree. A jury, on October 19, 1977, found him guilty on both counts, and he was again sentenced to twenty years' imprisonment on each count, with ten years added on each count pursuant to his classification as a dangerous special offender. The sentences run concurrently. Jensen appealed to this court, and in an opinion dated July 18, 1979, his convictions were affirmed. See State v. Jensen, 282 N.W.2d 55 (N.D.1979).

On January 16, 1981, and on February 18, 1981, respectively, Jensen filed an "Application for Post-Conviction Hearing" and an "Application for Post-Conviction Hearing Supplement", pursuant to the provisions of the Uniform Post-Conviction Procedure Act, Chapter 29-32 of the North Dakota Century Code. Jensen also filed a motion for a new trial pursuant to Rule 33 of the North Dakota Rules of Criminal Procedure, on July 2, 1982. His applications for post-conviction relief and motion for a new trial allege numerous constitutional and statutory violations which he contends occurred during the proceedings that ultimately led to his convictions and subsequent incarceration in the North Dakota State Penitentiary. Jensen appeared pro se and his applications and motion were heard together by the District Court of Wells County on July 6, 1982, and on August 23, 1982. 1

At the close of the August 23 hearing, the district court orally announced its findings and order denying the applications for post-conviction relief and motion for a new trial, and directed that counsel for the State prepare a written order for judgment and order denying the applications and motion. On August 30, 1982, Jensen filed his notice of appeal, which was dated August 25, 1982, and which stated in part:

"COMES NOW the defendant Herbert O. Jensen pursuant to NDAppP Rule 3, from judgment of Judge Benny Graff on defendants post-conviction hearing held August 23, 1982, to the North Dakota Supreme Court."

The written findings of fact, conclusions of law, and order denying Jensen's applications for post-conviction relief and motion for a new trial was signed by the trial court on September 16, 1982. Personal service of the document was made upon Jensen on September 20, 1982.

Although the State has not raised the issue of the appealability of the trial court's ruling, it is the duty of this court to dismiss the appeal on our own motion if we conclude that the attempted appeal fails to grant jurisdiction. State v. Lawson, 321 N.W.2d 514, 515 (N.D.1982); In Interest of D.R.J., 317 N.W.2d 391, 392 (N.D.1982); Simpler v. Lowrey, 316 N.W.2d 330, 333 (N.D.1982); Center State Bank, Inc. v. State Bank Bd., 276 N.W.2d 132, 134 (N.D.1979); In Re Estate of Brudvig, 175 N.W.2d 574, 577 (N.D.1970), overruled on other grounds, Liebelt v. Saby, 279 N.W.2d 881, 884 (N.D.1979). Upon examining the circumstances present here, we conclude that Jensen's appeal from the denial of his applications for post-conviction relief is premature because his notice of appeal related to an occurrence which had not yet matured into an appealable event.

This case is somewhat similar to the situation in State v. Gasser, 306 N.W.2d 205 (N.D.1981). In Gasser, supra, the trial court, following arguments by the State and the defendant, who also appeared pro se, determined that the State was entitled to summary judgment. The court orally issued its memorandum decision from the bench and directed that the State prepare appropriate findings of fact, conclusions of law, and order for judgment. One week after the hearing on the State's motion for summary judgment, but a month before either the trial court signed a written order or judgment was entered, the defendant filed his notice of appeal, similarly stating that the appeal was " 'from the judgment rendered against him in this court on August 28, 1980' ". Gasser, supra 306 N.W.2d at 207. The State in Gasser filed a motion to dismiss the defendant's appeal, claiming the defendant was appealing from an oral ruling made by the trial court from the bench and that, therefore, the appeal stemmed from a nonappealable intermediate ruling by the trial court. We agreed and dismissed the appeal, reasoning in Gasser, supra 306 N.W.2d at 207-208 that:

"In the present case we must conclude that if an order for entry of summary judgment is not appealable, then certainly an oral recitation from the trial court bench indicating that such an order will be issued cannot be elevated to appealable status. On that basis, this court is without jurisdiction to proceed further on the matter."

Although Gasser involved an attempted appeal from the granting of a motion for summary judgment, we believe the court's reasoning is equally applicable in Jensen's attempted appeal from the denial of his applications for post-conviction relief under Chapter 29-32, N.D.C.C. Section 29-32-07, N.D.C.C., provides that all rules and statutes applicable in civil proceedings are available to the parties in a post-conviction proceeding. Therefore, Rule 37(b), N.D.R.Crim.P., and Rule 4(b) of the North Dakota Rules of Appellate Procedure have no application in the instant case and cannot cure the jurisdictional defect of the appeal in this regard. State v. Tinsley, 325 N.W.2d 177, 179 n. 2 (N.D.1982).

In view of the fact that Jensen's appeal from the denial of his applications for post-conviction relief was taken before any final order was entered as required by Sec. 29-32-07, N.D.C.C., the appeal must be dismissed as premature.

The same does not hold true, however, in regard to that portion of Jensen's appeal which relates to the denial of his motion for a new trial. While a motion under the Uniform Post-Conviction Procedure Act is treated as an independent civil action, see Sec. 29-32-07, N.D.C.C., a motion for a new trial under Rule 33, N.D.R.Crim.P., is a step in a criminal proceeding. Rule 37(b), N.D.R.Crim.P., provides in pertinent part:

"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."

See also Rule 4(b), N.D.R.App.P. Thus, even though Jensen filed his notice of appeal on August 30, 1982, we treat that portion of his notice of appeal which relates to the trial court's order denying his motion for a new trial 2 as if it were filed on September 16, 1982, the date the trial court order was actually entered. Therefore, that portion of the trial court's order is properly before us for review.

Although we have concluded that Jensen's appeal from the trial court's denial of his applications for post-conviction relief, as opposed to the denial of his motion for a new trial, is not properly before this court, we are cognizant of the fact that the six-month time period during which Jensen could conceivably have corrected the defect in the timing of his notice of appeal has expired. See Sec. 29-32-09, N.D.C.C. Both parties have also fully briefed and argued the merits. We will therefore discuss the issues raised on the merits by the parties. 3

I

Jensen argues that, because he made preliminary appearances before a judge in Ramsey County on November 16, 1974, following his arrest, and then again before a judge in Wells County on November 18, 1974, he was twice placed in jeopardy in violation of State and Federal law. See U.S. Const. amend. V; N.D. Const. art. I, Sec. 12; Sec. 29-01-07, N.D.C.C. This claim is without merit.

It has long been established that jeopardy does not attach in criminal proceedings until the defendant's trial commences, which in a jury trial occurs when the jury is empaneled and sworn, and in a nonjury trial when the court begins to hear the evidence. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33 (1978); Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 433 (1973); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974, 978 (1949); State v. Berger, 235...

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