State v. Lewis, Cr. N

• Court: United States State Supreme Court of North Dakota
• Citation: 300 N.W.2d 206
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Timothy R. LEWIS, Defendant and Appellant. o. 720.
• Decision Date: 21 November 1980

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300 N.W.2d 206 STATE of North Dakota, Plaintiff and Appellee
v.
Timothy R. LEWIS, Defendant and Appellant. Cr. No. 720. Supreme Court of North Dakota. Nov. 21, 1980.

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,

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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

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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...