State v. Lueder, 536-A

• Decision Date: 28 June 1978
• Docket Number: No. 536-A,536-A
• Citation: 267 N.W.2d 555
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Robert M. LUEDER, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 555

267 N.W.2d 555 STATE of North Dakota, Plaintiff-Appellee,
v.
Robert M. LUEDER, Defendant-Appellant. Crim. No. 536-A. Supreme Court of North Dakota. June 28, 1978.

Page 556

Robert M. Lueder, pro se.

Thomas B. Jelliff, State's Atty., Grand Forks, for plaintiff-appellee.

PAULSON, Judge.

On August 27, 1977, Robert M. Lueder, petitioned the Grand Forks District Court to vacate the judgment of conviction entered against him on January 29, 1965, upon his plea of guilty to a charge of first-degree robbery. The application for relief was brought under North Dakota's Uniform Post-Conviction Procedure Act, Chapter 29-32 of the North Dakota Century Code. On December 5, 1977, the district court entered an order denying Lueder's request for relief, and Lueder now appeals to this court from that order.

Lueder has filed a Motion for Judgment with this court requesting the relief sought in his brief on the ground that the State failed to file a timely brief. Lueder's brief was filed with this court on January 23, 1978, and his Motion for Judgment was filed on March 21, 1978. The State filed its brief with this court on March 29, 1978.

Pursuant to Rule 31(a) of the North Dakota Rules of Appellate Procedure the appellee "shall serve and file his brief within thirty days after service of the brief of the appellant". Under Rule 31(c), N.D.R.App.P., an appellee who fails to file his brief will not be heard at oral argument except by permission of the court. Both parties waived oral arguments on this appeal and therefore Lueder could not possibly have been prejudiced by the State's late filing of its brief. This court looks with strong disfavor upon the irresponsible practice of filing a late brief. Nevertheless, the State's late filing of its brief, under the circumstances, presents no basis upon which this court can grant Lueder's requested relief. Accordingly, Lueder's Motion for Judgment is denied.

Page 557

This is the second application for post-conviction relief from the January 29, 1965, judgment that Lueder has brought under the Uniform Post-Conviction Procedure Act. In State v. Lueder, 242 N.W.2d 142 (N.D.1976), this court affirmed the district court's denial of post-conviction relief.

Lueder now raises the following issues for review, which he has delineated as follows:

Point I. The Grand Forks juvenile court erred in summarily waiving jurisdiction over the petitioner, since the basis for its waiver, petitioner's confession to the alleged crimes in question, was unconstitutionally extracted through coercive measures.

Point II. Petitioner's prior involvement with the Great Falls, Montana, juvenile authorities, and his November 20, 1964, conviction in Minot, North Dakota, for burglary, did not constitute probable cause to waive juvenile jurisdiction in Grand Forks.

Point III. Petitioner's plea of guilty...