STATE оf North Dakota, Plaintiff and Appellant, v. Donald Clifton FREED, Defendant and Appellee.
Cr. No. 944.
Supreme Court of North Dakota.
Nov. 15, 1983.
ERICKSTAD, C.J., VANDE WALLE, J., and PAULSON *, Surrogate Justice, concur.
WALLACE D. BERNING, District Judge, sitting in place of PEDERSON, J., disqualified.
WALLACE D. BERNING, District Judge (dissenting).
I dissent. More deference should be given by the majority to the usual, traditional definitions of the words used in the statutes involved. The term “highway” is specifically defined in the statute (
The premise thаt the conveyance of this land to the State is the same as by eminent domain fails when the appropriate provisions of
It is interesting to note that a portion of
“... highway authority may, in its discretion, acquire an entire lot, block, or tract of land, if, by so doing, the interests of the public will be best served, even though said entire lot, block, or tract is not immediately needed for the right of way proper.” [Emphasis supplied.]
It would have been a very simple matter for the Legislature to have stated words to the effect that such collateral acquisition could be mаde only without minerals. They did not. Tract 2 is such an acquisition.
tionale has some application to the present case.
Jonathan T. Garaas, Fargo, for defendant and appellee.
PEDERSON, Justice.
The State appeals from an order suppressing results of chemical tests performed on a blood sample taken from Donald Clifton Freed following an automobile accident. Freed moved to dismiss the appeal on the ground that the prosecuting attorney failed to file a statement with the notice of appeal pursuant to the requirements of
Shortly before midnight on November 27, 1982, Deputy Sheriff Brandon received a report of an automobile accident. When Brandon arrived at the accident scеne, Freed was being removed from a vehicle in the ditch. Brandon did not speak with Freed before the ambulance took him to the hospital. During his on-site investigation Brandon detected an odor of alcohol but found no alcoholic beverage contаiners in the vehicle.
Brandon then went to the hospital emergency room where he talked with Freed. According to Brandon‘s testimony he informed Freed that he was or would be
Brandon‘s official report contained a specific statement that “a complaint might follow later.” On December 28, 1982 a formal complaint was issued charging Freed with driving while under the influence, a violation of
Freed moved to suppress the blood test results on the grounds that the blood sample was taken without a search warrant; that he had never voluntarily consented to the taking of the blood sample; and that Brandon had not informed him that he was under arrest while he was in the emergency room.
After a hearing the court granted the suppression motion without stating the factual basis for its ruling.
The State filed a timely notice of appeal but neglected to file the prosecuting attorney‘s statement required by
When an appeal by the Statе in a criminal action is authorized by statute, the notice of appeal must be filed with the clerk of the trial court within 30 days after the entry of the order or judgment appealed from.
Freed urges this court to characterize the prosecutor‘s statеment as an integral part of the notice of appeal, making the statement a jurisdictional rather than a procedural requirement.
In Gerhardt v. Fleck, 251 N.W.2d 764 (N.D. 1977), we summarized cases in which we granted motions to dismiss for failure to comply with rules and procedures, and also cases in which we denied motions to dismiss on those grounds. Those cases and others
“(1) Has the party making the motion to dismiss been prejudiced by appellant‘s failure to comply with the rules?
“(2) Has the appellant demonstrated justifiable cause for its failure to comply with the rules?
“(3) Has the appellant cured the defect prior to oral argument and has the record and all the briefs been filed with the court so that the merits can bе evaluated?
“(4) Is the underlying appeal meritorious?”
We have frequently expressed a preference to reach the merits of an appeal, but that consideration will not always be the determinative factor. Jostad v. Jostad, 285 N.W.2d 583 (N.D. 1979); State v. Packineau, 270 N.W.2d 336 (N.D. 1978).
The State argues that its appeal should not be dismissed because оf the preferred policy of deciding an appeal on the merits and because, in previous cases, this court has not dismissed appeals for failure to comply. This argument gives no weight to the repeated warnings in those cases that failure to filе a prosecutor‘s statement could result in a dismissal of the appeal in the future.
The first case in which we considered the requirements of
We next considered the filing requirement in State v. Fields, 294 N.W.2d 404 (N.D. 1980). Although we declined to dismiss the appeal, we said that we did not “... mean that in the future this court will not consider dismissing appeals for failure to file the prosecutor‘s statement with the notice of appeal.” Id. at 406.
In State v. Borden, 316 N.W.2d 93 (N.D. 1982), in declining to dismiss the appeal we repeated the warning enunciated in Fields, supra, that we did not condone delays in filing and would consider dismissing future appeals for failure to file.
The issue presented in State v. Dilger, 322 N.W.2d 461 (N.D. 1982), relied upon by the State, concerned the sufficiency of the content of the prosecutor‘s statement rather than the failure to timely file the statement. In Dilger we dismissed the appeal because the State failed to establish that the suрpression order effectively destroyed the State‘s case.
Our most recent encounter with a failure to comply with the requirements of
In previous cases, both civil and criminal, we have refused to dismiss an appeal for various reasons, always noting, however, that the particular requirement was relatively new and cautioning that, after an opportunity to become familiar with the requirement, it would be enforced. We have said that “we do not intend that our admonitions be treated as an ‘empty noise.’ The rules must be treated respectfully.” Jostad, supra, 285 N.W.2d at 585.
The statutory requirement of filing a prosecutor‘s statement with the notice of
In the interest of justice and to prevent abuse of the appellate process, the motion to dismiss is granted. We conclude that, under the circumstances, motion costs are not justified.
GIERKE and SAND, JJ., concur.
VANDE WALLE, J., concurs in result.
ERICKSTAD, Chief Justice, dissenting.
The majority opinion, without distinguishing this case from previous cases decided by this Court, has granted a motion on the part of the defense to dismiss the appeal taken by the State without reaching the merits of the case. In so doing, it cites a decision of this Court which lists four questions which should be answered in determining whether or not a motion to dismiss on procedural grounds should be granted. It does not, however, attempt to apply those questions to this case. In Matter of Estates of Kjorvestad, 304 N.W.2d 83 at 85 (N.D. 1981).
The basis of the majority opinion seems to be that as our patience is at an end, having admonished states attorneys in the past, we must now set an example by granting the motion to dismiss in this case. This ignores the interest of the public in the prosecution of criminal cases in general and driving under the influence of intoxicating liquor cases in particular. It does not enhance the image of the judicial system nor does it safeguard any constitutional right or principle.
If a sanction is necessary, it would seem that a less harsh one could be found. The solution may in fact lie, not in dismissal nor in sanctions, but in comprehensive training sessions which would not disrupt the judicial system nor reflect adversely upon it.
Notes
“5. An order granting the return of property or suppressing evidence, or supprеssing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the property ordered to be returned or suppressed or of a confession or admission ordered to be suppressed has rendered the proof available to the state with respect to the criminal charge filed with the court, (1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction hаs been effectively destroyed. The statement shall be filed with the clerk of district court and a copy thereof shall accompany the notice of appeal.”In this case the State did not attempt to file the required statement until after the time for appeal had expired and after Freed had made a motion that this court dismiss the appeal.