State v. Rueb, Cr. N

• Decision Date: 23 December 1976
• Docket Number: Cr. N
• Citation: 249 N.W.2d 506
• Parties: STATE of North Dakota, Petitioner, v. Arthur RUEB, Respondent. o. 579.
• Court: North Dakota Supreme Court

Page 506

249 N.W.2d 506

STATE of North Dakota, Petitioner, v. Arthur RUEB, Respondent.

Cr. No. 579.

Supreme Court of North Dakota.

Dec. 23, 1976.

Syllabus by the Court

1. An order modifying sentence after judgment, as distinguished from the original sentencing judgment, is an appealable order. Section 29--28--07(4), NDCC.

2. Rule 35, North Dakota Rules of Criminal Procedure, regarding reduction of sentence within 120 days after imposition of sentence, is in full force and effect and its operation is not affected by an earlier statutory enactment allowing suspension of all or part of a sentence only prior to the time the offender is transferred to a penal institution. Section 12.1--32--02(3), NDCC.

3. A reduction of sentence under Rule 35, NDRCrimP, includes suspension of an unserved sentence and the placing of the convicted offender on probation.

4. Where a motion for reduction of sentence is made under Rule 35, NDRCrimP, the defendant's attorney or by the defendant pro se, Rules 35, 47, and 49, NDRCrimP, require that notice be served upon the State's attorney.

5. Change or modification of sentence in this State is permitted pursuant to Rule 35, NDRCrimP, only, and courts in the State do not have inherent power to change the sentence during the term of court.

6. The discretionary power of the sentencing court under Rule 35, NDRCrimP, is not absolute and abuse of the power is ground for reversal.

7. Consistent with the requirement that the sentencing court give reasons for imposing a particular sentence, that court should also state reasons for reducing a sentence under Rule 35, NDRCrimP. Section 12--55--30, NDCC.

John M. Olson, State's Atty., Bismarck, for petitioner.

William R. Mills, Bismarck, for respondent.

SAND, Justice.

Arthur Rueb, the defendant, in May of 1975, was charged with the offense of indecent liberties with minor children in violation of § 12--30--11, North Dakota Century Code. He was ordered to be evaluated by the North Dakota State Hospital in Jamestown. Thereafter, on March 22, 1976, he entered a plea of guilty and a presentence investigation was ordered by the Honorable Alfred A. Thompson, district judge. Subsequently, on August 2, 1976, Judge Thompson sentenced the defendant to the North Dakota State Penitentiary for a term of three years.

On November 29, 1976, defendant's counsel, pursuant to Rule 35 of the North Dakota Rules of Criminal Procedure, made and filed with the sentencing district court a written motion requesting a reduction of the three-year sentence imposed on August 2, 1976. On the same day the sentencing judge modified the sentence as follows '1. That you be imprisoned in the North Dakota State Penitentiary for the term of five (5) years commencing at twelve o'clock noon on the 2nd day of August, 1976.

'2. That the balance of the said sentence is hereby deferred on the following terms and conditions and the Defendant placed upon probation to August 2, 1981.'

(This was followed by the terms of the probation.)

The State's Attorney was not served with, nor, according to him, did he have actual notice of the motion. On December 9, 1976, the State's Attorney filed a notice of appeal, and on December 10, 1976, he filed an amended appeal to correct a technicality. On December 9 the State's Attorney (hereinafter State), under the provisions of Rule 8(a) and (c) of the North Dakota Rules of Appellate Procedure, applied to the Supreme Court for a stay order of the district court's modification order of November 29, 1976, pending appeal. This court granted a temporary stay order pending disposition of the case on its merits and scheduled a hearing for December 17, 1976, on the merits.

The attorney for the defendant moved this court to rescind the stay order, which motion was also scheduled to be heard on December 17, 1976.

Several issues were raised by the parties but we do not find it necessary to set them all out separately. However, those requiring resolution will be identified and treated in the discussion.

Of primary importance is the contention of the State that § 29--28--07(4) gave it the right to appeal the modification order. This was strongly disputed by the defendant. Section 29--28--07(4) provides that

'An appeal may be taken by the state from:

'4. An order made after judgment affecting any substantial right of the state.'

We are not aware that subsection 4 has ever been construed by the North Dakota Supreme Court. A judgment consists of the plea, the verdict, and the adjudication and sentence. Rule 32, North Dakota Rules of Criminal Procedure. By giving the ordinary meaning to the language of subsection 4 it becomes apparent that it applies to the order issued by the sentencing district court which reduced the earlier sentence imposed. The modification order of the court is an order made after judgment and the total effect of the order involves a substantial right of the State. The California Appellate Court, in People v. Warner, 60 Cal.App.3d 923, 131 Cal.Rptr. 907 (1976), held that an appeal may be taken by the People from an order placing the defendant on probation after having first imposed sentence and suspended the execution thereof. It reached this conclusion on the basis that such proceeding is within the meaning of the Code authorizing appeal by the People from an order made after judgment affecting substantial rights of the People. The defendant was sentenced to prison for committing a lewd and lascivious act upon a child under the age of fourteen years but by an order of the court the execution of the sentence was suspended for a five-year probation period. The court held the order was appealable. The California Appellate Court also reached the same conclusion in People v. Beasley, 5 Cal.App.3d 617, 85 Cal.Rptr. 501 (1970) and in People v. Orrante, 201 Cal.App.2d 553, 20 Cal.Rptr. 480 (1962). The district court of California in 1953, in People v. Superior Court, 118 Cal.App.2d 700, 258 P.2d 1087, even went further and said that an order granting probation after judgment is appealable by the People. Ex parte Sargen, 135 Cal.App. 402, 27 P.2d 407 (1933), is another case touching upon this subject but it has value only because the court observed that the People had the authority to appeal under the language 'from any order made after judgment affecting the substantial rights of the people' but did not avail themselves of this provision. We conclude that the district court's modification order of November 29, 1976, as distinguished from the original sentencing judgment, is an order that comes within the provisions of subsection 4 of § 29--28--07, NDCC.

The State contended that § 12.1--32--02(3), NDCC, modified the provisions of Rule 35, NDRCrimP, to the extent that the jurisdiction of the sentencing court was doubtful if not withdrawn. Its pertinent provisions are as follows:

'3. A court may, at any time prior to the time custody of a convicted offender is transferred to a penal institution or institution for treatment, suspend all or a portion of any sentence imposed pursuant to this section.'

The argument was that once the offender has been placed in custody of the warden at the State Penitentiary the sentencing court lost its jurisdiction. This would be in harmony with the ratonale of John, infra.

The authority of the Supreme Court to adopt procedural rules has been recognized and is not in dispute. Similarly the authority of the Legislature to enact laws on the same subject was an inherent power under the constitutional provisions prior to the adoption of the 'New Judicial Article.'

This requires us to make a careful examination and analysis between the date of the legislative enactment and the date of the adoption of Rule 35, NDRCrimP.

Section 12.1--32--02(3), NDCC, was enacted by the Legislature in the 1973 Session through chapter 116, to be effective on July 1, 1975. The Criminal Rules, including Rule 35, were adopted by the Supreme Court on August 17, to be effective on November 1, 1973. This court, in John v. State, 160 N.W.2d 37 (N.D.1968), said that under the then existing statutes that when the defendant has been tried and a judgment of conviction has been entered and sentence pronounced the court loses its jurisdiction. Subsequently this court, in State v. Gronlie and State v. Heck, 213 N.W.2d 874 (N.D.1973), reaffirmed the rationale of John that once the trial court has sentenced the person charged with the commission of a felony and convicted of a felony to the State Farm, the trial court loses jurisdiction. The court, however, further observed that the defendant Gronlie was sentenced and convicted on January 29, 1973, and Rule 35, NDRCrimP, adopted on 17 August 1973, did not become effective until November 1, 1973, and that until the Rule became effective the ruling in John applied.

Consequently, under the constitutional Judicial Article prior to the 1976 amendment, as a matter of practical application the action either of the Supreme Court or of the Legislature, whichever acted later in time, superseded the previous action of the other. This is a practical result. However, under the new Judicial Article this rationale may no longer be appropriate.

As to the instant case, Rule 35, NDRCrimP, was adopted after the enactment of § 12.1--32--02(3), NDCC, and as a result the provisions of Rule 35 must prevail by either superseding the legislative enactment or requiring the statutory provisions to be construed in harmony with the Rule. Rule 35 must be given full force and effect. We reach this conclusion because it is the time of enactment of the statute and the time of the promulgation of the Rule which control, and not the effective date of either.

We therefore conclude that Rule 35, NDRCrimP, is in full force and effect and that § 12.1--32--02(3), NDCC, does not prevent its full operation.

The State argued that the reduction as permitted under Rule 35, NDRCrimP, does not embrace or include probation, as was done...