914 N.W.2d 485
N.D.2018Background
- James Jorgenson was charged with two counts of theft for depriving Jackie Blikre of calf sale proceeds.
- Jorgenson and the State entered a pretrial diversion agreement suspending prosecution for 60 months with conditions; the court approved the agreement.
- The agreement included a condition that restitution "shall pay restitution to be determined by the Court at a contested Restitution Hearing."
- After a restitution hearing the district court ordered restitution of $50,000.
- Jorgenson appealed the diversion approval and restitution order; those orders are not appealable under N.D.C.C. § 29-28-06.
- The North Dakota Supreme Court exercised supervisory jurisdiction because no adequate alternative remedy existed and the restitution amount was large and raised unsettled Rule 32.2 questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether orders approving a pretrial diversion agreement that delegates restitution amount determination to the court are appealable under § 29-28-06 | Jorgenson sought review of Diversion and Restitution Orders | State argued orders were not appealable under the statute | Orders are not appealable under § 29-28-06, but court exercised supervisory jurisdiction to review them |
| Whether a pretrial diversion agreement may include a term requiring the court to determine restitution at a contested hearing | Jorgenson relied on the approved agreement and court-determined restitution | State relied on parties’ agreement and court approval | Rule 32.2 prohibits including a term that requires the court to determine restitution after approval; all diversion terms must be negotiated by parties and the court may only accept or reject the final agreement |
| Whether the diversion approval and restitution order complied with N.D.R.Crim.P. 32.2 | Jorgenson argued the court-approved agreement was valid | State maintained approval cured any defects | Court held the Diversion Order violated Rule 32.2 and vacated it; restitution order also vacated because it derived from the erroneous agreement |
| Whether supervisory jurisdiction should be exercised despite lack of statutory appeal | Jorgenson had no other adequate remedy and issue was significant | State did not show an adequate alternative remedy | Court exercised supervisory jurisdiction as extraordinary relief and remanded for proceedings consistent with the opinion |
Key Cases Cited
- State v. Moore, 662 N.W.2d 263 (N.D. 2003) (appealability of criminal orders is governed strictly by statute)
- Holbach v. City of Minot, 817 N.W.2d 340 (N.D. 2012) (standards and limited scope for exercising supervisory jurisdiction)
- State v. Watkins, 898 N.W.2d 442 (N.D. 2017) (invited error and waiver principles)