State v. Lewis, Cr. N

Decision Date21 November 1980
Docket NumberCr. N
Citation300 N.W.2d 206
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Timothy R. LEWIS, Defendant and Appellant. o. 720.
CourtNorth Dakota Supreme Court

John M. Olson, State's Atty., and Patricia L. Burke, Asst. State's Atty., Bismarck, for plaintiff and appellee State of North Dakota.

James J. Coles, of Bickle, Coles & Snyder, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

The State of North Dakota has filed a motion to dismiss the appeal of Timothy R. Lewis from a criminal judgment of conviction entered by the Burleigh County district court. We deny the motion to dismiss the appeal.

Timothy R. Lewis was convicted in Burleigh County district court on January 11, 1980, by Judge Larry M. Hatch of the crime of robbery. Lewis was declared a dangerous special offender and sentenced to twenty years in the State Penitentiary under Section 12.1-32-09, N.D.C.C. Lewis was represented by court-appointed counsel throughout the preliminary hearing and court trial. On January 18, 1980, Lewis, acting pro se, mailed a notice of appeal from the judgment and sentence imposed by the trial court. He mailed that notice to the Honorable Larry M. Hatch, Judge, at the district court chambers, Burleigh County Courthouse, Bismarck, North Dakota, and to Mr. John M. Olson, Burleigh County State's Attorney, Courthouse, Box 1901, Bismarck, North Dakota. On February 19 1980, Judge Hatch wrote the following letter to Lewis:

"On or about the 23rd day of January, 1980 I received your notice of appeal. Recently, I asked the Clerk of District Court in Burleigh County if she had received a notice of appeal from you. She stated that she had not.

"Notices of appeal should be filed in the office of the Clerk of Court wherein the matter was filed, in your case Burleigh County. I merely inform you of this and suggest that you consult with an attorney."

Lewis apparently took no further action until March 19, 1980, when he filed a notice of intent to make application for the issuance of a writ of mandamus against Marian Barbie, Clerk of the District Court, and Judge Hatch directing them "to perform the duties of their office." 1

Lewis did not file the notice of appeal with the Clerk of District Court of Burleigh County as suggested by Judge Hatch. Lewis contends he thought that Judge Hatch would file the notice of appeal. Upon learning subsequently that Lewis had not filed the notice of appeal with the Clerk, Judge Hatch filed the notice. The record reveals that the notice was filed with the Clerk of the District Court, Burleigh County, on April 10, 1980.

On September 26, 1980, the State filed a motion to dismiss the appeal "by and for the reasons that this Court does not have jurisdiction over the appeal, that Defendant-Appellant has failed to follow the Rules of Appellate Procedure, and that such appeal is frivolous."

As a basis for its motion to dismiss, the State argues:

1. This court lacks jurisdiction over the appeal because the notice of appeal was not properly filed as required by Rule 4(b) of the North Dakota Rules of Appellate Procedure.

2. A dismissal is warranted under Rule 31(c), North Dakota Rules of Appellate Procedure, because the transcript was not ordered and Lewis's brief was not filed within the time prescribed by the rules.

3. Lewis's appeal is frivolous in that there are no questions of fact of law which would necessitate an appeal.

Turning to the first issue raised by the State, the lack of jurisdiction over the appeal, we note that Rule 4(b), N.D.R.App.P., provides, in part:

"In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from."

The State refers us to the decision of this court in City of Minot v. Lundt, 268 N.W.2d 482, 484 (N.D.1978), wherein the court stated:

"This court has held that an appeal is governed by the appellate rules and that a failure to file a notice of appeal within the prescribed time as set forth in Rule 4(b), N.D.R.App.P., is fatal."

The Lundt decision quoted from the decision in State v. Metzner, 244 N.W.2d 215, 220 (N.D.1976), holding that Rule 4(b), N.D.R.App.P., and Rule 37(b), N.D.R.Crim.P., are mandatory and jurisdictional and compliance with the jurisdictional requirement that the notice of appeal be timely filed cannot be waived by this court.

There is no dispute that Lewis, acting pro se, sent the notice of appeal to Judge Hatch within the 10-day limit prescribed by the rules. Rather, the State's position is that Lewis's attempt to file his notice of appeal with the District Judge rather than the Clerk of District Court was ineffectual and that the notice of appeal was effectually filed only on April 10, 1980, the day Judge Hatch filed it. Because that is more than 10 days from the date of the criminal conviction, the State argues the notice of appeal was not timely filed. 2

An examination of the Lundt decision reveals little similarity with the facts of this case. In Lundt an appeal was taken from the Minot municipal court to the district court. A written order of dismissal of the appeal was filed by the district judge on April 29, 1976, after Lundt failed to appear. Lundt did not file a notice of appeal of the order of dismissal with the clerk of the district court until February 22, 1978, two years and 11 months after the order of dismissal was entered. Although there had been considerable correspondence between Lundt and this court, the court noted that it could not be equated to or considered as constituting a notice of appeal because it did not specify the party taking the appeal, did not designate the order appealed from, and did not name the court to which the appeal was taken. In this instance the notice of appeal filed with Judge Hatch was timely, and it met all other requirements for a notice of appeal. A copy was simultaneously served on the State's Attorney, so the State cannot complain it lacked knowledge of Lewis's intent to appeal. At oral argument counsel for the State conceded that at the time it received the notice of appeal it had no reason to suspect the notice of appeal had been filed with the District Judge rather than the Clerk of the District Court.

In Metzner the notice of appeal was not filed within the 10-day period required by Rule 4(b) nor within the 40-day period permitted by the extension provision of that rule. This court noted that there was "nothing in the record showing that Metzner communicated to the district court, within the time requirements set forth in Rule 4(b), N.D.R.App.P., and in Rule 37(b), N.D.R.Crim.P., his intent to appeal from the burglary conviction." State v. Metzner, supra, 244 N.W.2d at 220. Here, Lewis did communicate to the District Court his intent to appeal although that communication was sent to the District Judge rather than the Clerk of Court.

Lewis argues that he has "substantially complied" with the rules of appellate procedure and that we have jurisdiction to hear this case on its merits. We do not adopt a standard of "substantial compliance" with the provisions of Rule 4(b), N.D.R.App.P., or Rule 37(b), N.D.R.Crim.P., insofar as the filing of the notice of appeal is concerned. However, under the peculiar facts of this case we conclude Lewis's notice of appeal filed with the District Judge and served upon the State's Attorney within 10 days after the judgment of conviction is sufficient to give this court jurisdiction over the appeal.

The State also urges us to dismiss the appeal because Lewis did not order the transcript of proceedings within the time specified by Rule 10(b), N.D.R.App.P., nor file his brief within the time specified by Rule 31, N.D.R.App.P. The transcript was not ordered until August 7, 1980. 3

Rule 3(a), N.D.R.App.P., provides that failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal but does permit this court to dismiss the appeal. We decline to dismiss the appeal on the grounds asserted by the State even though Lewis's inaction in promptly ordering the transcript may appear to invite us to do so. A brief recitation of some additional facts may explain our unwillingness to dismiss the appeal on these grounds.

Lewis was represented at trial by court-appointed counsel. Following the judgment of conviction Lewis's counsel informed him there did not appear to be sufficient grounds upon which to base an appeal, although counsel did inform Lewis, by letter, of the time within which an appeal must be filed and also informed Lewis that he should request assistance on such an appeal should he desire to proceed. The letter...

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8 cases
  • State v. KORTH AND STEELE
    • United States
    • South Dakota Supreme Court
    • 14 Agosto 2002
    ..."as soon after the initially appointed attorney makes his opinion as to frivolity known to the court as is practical." State v. Lewis, 300 N.W.2d 206, 209 (N.D.1980) (citation omitted). It should also be noted that North Dakota, like South Dakota, grants the right to appeal as a matter of l......
  • State v. Fischer, 20060153.
    • United States
    • North Dakota Supreme Court
    • 28 Febrero 2007
    ...of the substantive issues is warranted here in light of the seriousness of the conviction and the sentence imposed. See State v. Lewis, 300 N.W.2d 206, 209-10 (N.D.1980); Liebelt v. Saby, 279 N.W.2d 881, 884 [¶ 18] Based on the particular facts of this case, we conclude the district court's......
  • State v. Lewis, Cr. N
    • United States
    • North Dakota Supreme Court
    • 24 Febrero 1981
  • State v. Brakke, Cr. N
    • United States
    • North Dakota Supreme Court
    • 24 Junio 1987
    ...as the filing of a notice of appeal is concerned, is not sufficient to give this court jurisdiction over an appeal. See State v. Lewis, 300 N.W.2d 206 (N.D.1980). A defendant's pro se status does not relieve him of the requirement of strict compliance with procedural rules. See Hennebry v. ......
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