State v. Stuart, s. 950213

• Citation: 544 N.W.2d 158
• Decision Date: 28 February 1996
• Docket Number: 950214,Nos. 950213,s. 950213
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Ronald E. STUART, Defendant and Appellee. Criminal
• Court: United States State Supreme Court of North Dakota

Page 158

544 N.W.2d 158

STATE of North Dakota, Plaintiff and Appellant, v. Ronald E. STUART, Defendant and Appellee.

Criminal Nos. 950213, 950214.

Supreme Court of North Dakota.

Feb. 28, 1996.

John E. Greenwood (argued), State's Attorney, Jamestown, for plaintiff and appellant.

Ronald E. Stuart (argued), Valley City, pro se, for defendant and appellee.

MESCHKE, Justice.

The State appeals from an order dismissing two criminal charges against Ronald E. Stuart for failing to appear or post bond on traffic citations. We reverse and remand for trial.

On October 8, 1994, Stuart was stopped and cited for speeding near Carrington, North Dakota. Stuart was also cited for violating NDCC 39-06-16 by failing to produce a valid driver's license. ¹ Stuart signed both citations, thereby promising to appear in court on November 2, 1994.

Stuart moved to dismiss the traffic citations on October 12, 1994, alleging insufficient process, insufficient service of process, and lack of jurisdiction. On October 17, 1994, apparently in response to a letter from Stuart, the trial court deputy clerk wrote Stuart a letter informing him that "the only way that this matter can be resolved is after a hearing," that a hearing could not be held until Stuart posted bond, and that he had to post bond by November 9, 1994. By letter dated October 20, Stuart denied that he had requested a hearing, accused the clerk of practicing law without a license, and reiterated the deficiencies alleged in his October 12 motion to dismiss. The then trial judge replied to Stuart's letter on October 25, 1994:

I am writing in response to your letter addressed to my [clerk].

Let me assure you that [the clerk] sent the letter you received at my direction.

The procedure[s] in civil traffic cases are set out in section 39-06.1-03 of the North Dakota Century Code. Penalties for not complying with these procedures are in 39-06.1-04. Copies are enclosed for your information.

We will follow these procedures in processing your ticket. Therefore, if bond is not posted by November 9, 1994, your license will be suspended.

Stuart did not post bond by November 9. After giving Stuart notice and the opportunity for a hearing, the North Dakota Department of Transportation suspended Stuart's driver's license on December 5, 1994, for his reported failure to appear or post bond on the traffic citations. See NDCC 39-06-32(6). On February 15, 1995, the trial court clerk signed two complaints against Stuart, under NDCC 39-06.1-04, for failing to appear or post bond for the two traffic citations, and the trial judge had Stuart arrested.

On February 27, 1995, Stuart posted bond for the two failure-to-appear charges, received copies of the February 15 complaints, and was notified by letter that trial on the charges would begin on April 24, 1995. On both March 13 and 15, 1995, Stuart filed handwritten demands for either a formal complaint or the dismissal of the "purported Complaint." The State resisted the demands and attached copies of the two February 15 complaints. On April 24, 1995, Stuart failed to appear for trial and was arrested again.

On May 4, 1995, the State responded to Stuart's October 1994 motion to dismiss the traffic citations, asserting sufficient process and valid jurisdiction. On May 8, 1995, Stuart renewed the motion to dismiss the traffic citations, and the trial court notified him that a hearing would take place on June 12, 1995.

During the hearing, the trial court orally dismissed the two failure-to-appear charges. Citing Powell v. Hjelle, 408 N.W.2d 737 (N.D.1987), the trial court found that Stuart's driver's license was a "protectable property interest," that the license suspension was a "pretty big hammer over Mr. Stuart's head," and that the State's interest in prosecuting Stuart was not "all that great in this case." In dismissing the charges, the trial court also found that Stuart was "prejudiced" by "misinformation" in the former trial judge's October 1994 letter, and by the trial court's "failure to require sworn testimony or affidavit" in support of the February 15 complaints.

After a written order confirmed the oral dismissal of the failure-to-appear charges, the State appealed. See State v. DuPaul, 509 N.W.2d 266, 269 (N.D.1993) (order dismissing criminal charge is appealable, under NDCC 29-28-07(1), where it has same effect as "order quashing an information"). The State argues the trial court erred in finding that Stuart was prejudiced by the lack of sworn testimony or an affidavit to support the complaints, and that the court incorrectly applied Powell in a criminal context. Furthermore, the State argues that the "trial court went beyond the scope of [Stuart's] motions and demands to find two issues upon which to rest its decision for dismissing the two complaints." We agree that the trial court improperly dismissed the failure-to-appear charges.

The State argues the trial court incorrectly found that Stuart was prejudiced by the trial court's failure to require the complainant to give an affidavit or sworn testimony. We agree.

Our rules of procedure require neither an affidavit nor sworn testimony with a sworn complaint, although the magistrate may receive both to help confirm probable cause for the arrest:

The complaint must be sworn to and subscribed before an officer authorized by law to administer oaths within this state and be presented to a magistrate. The magistrate may examine on oath the complainant and other witnesses as well as receive any affidavit filed with the complaint. If the magistrate examines the complainant or other witnesses on oath, the magistrate shall cause their statements to be reduced to writing and to be subscribed by the persons making them or to be recorded by a court reporter or recording equipment.

NDRCrimP 3(a) (emphasis added). ² Because neither an affidavit nor sworn testimony are required, the trial court erred in finding that Stuart was prejudiced by their absence.

The complaints recite that the trial court clerk was "first duly sworn and examined on oath" when she made the complaints. However, the clerk testified at the June 12 hearing that she did not give any verbal testimony to the judge for the February 15 complaints. Thus, while the complaints imply the clerk gave additional testimony to support the complaints, her testimony at the June 12 hearing refutes this implication. To the extent the inclusion of this boilerplate statement in the complaints was error, we conclude it was harmless. ³

The trial court also found that Stuart was "prejudiced" by "misinformation" in the former trial judge's October 25 letter to him, but the court did not specify what the "misinformation" was, or how it harmed Stuart. We disagree that the letter "misinformed" Stuart about any aspect of the law. Rather, the letter simply directed Stuart to some of the statutes relevant to the disposition of traffic offenses, and also gave him further notice that the failure to post bond by the specified date would result in the suspension of his driver's license.

In dismissing the appeal, the trial court orally noted that these statutes "are confusing to lawyers in practice, let alone lay people." While these statutes may not be models of clarity, a "person acting as his own attorney is equally bound by applicable rules of procedure, even if he lacks understanding of those rules or the correct procedures." Sandbeck v. Rockwell, 524 N.W.2d 846, 851 (N.D.1994). We fail to see how the judge's effort to assist Stuart could have "prejudiced" him in any way.

The State also argues that the factors noted in Powell, and relied on by the trial court, should only be considered "in an administrative context, [and] not a criminal one," and that, even if Powell applied, the "State's interest is great in prosecuting failure to appear cases." We agree.

Before the halting officer could release Stuart from custody after the traffic stop, the officer had to obtain Stuart's signature on the citations. NDCC 39-07-08. Stuart signed a "Promise to Appear" on both traffic citations: "I hereby consent and promise to appear at the time and place specified." By signing the citations, Stuart thus promised to appear in court on November 2, 1994. ⁴

After signing the citations, Stuart had several statutory options. He could have appeared at the time and place designated in the citation to try to convince the trial court to "waive, reduce, or suspend the statutory fee or bond, or both." NDCC 39-06.1-02. Or he could have appeared then and there and paid the statutory fee. Id. He could have posted an appearance bond equal to the amount of the statutory fee, and then forfeited the bond by failing to appear at the designated time and place. Id. Stuart also could have posted an appearance bond and requested a hearing under NDCC 39-06.1-03(1) "on the issue of commission of the violation charged."

Instead, by failing to appear without having posted an appearance bond to forfeit, Stuart admitted to committing the charged violations and probably committed a class B misdemeanor. NDCC 39-06.1-04. In addition, Stuart's failure to appear authorized the Department of Transportation under NDCC 39-06-32(6) to suspend his driver's license. See State v. Mische, 448 N.W.2d 412, 413-14 (N.D.1989). Stuart's license was thus properly suspended.

The trial court dismissed the failure-to-appear charges because it concluded that this criminal prosecution and license suspension violated due process. Relying on Powell, the trial court considered three factors: "the private interest that will be affected by the official ... action, the potential for governmental error, and the magnitude of the state's interest." See Powell, 408 N.W.2d at 738. After concluding Stuart's driver's license was a "protectable property interest," the trial court continued:

And I don't know how efficient a failure to appear or post bond complaint is because of ... the magnitude of the state's...