STATE оf North Dakota, Plaintiff and Appellee v. Timothy R. LEWIS, Defendant and Appellant
Cr. No. 720
Supreme Court of North Dakota
Nov. 21, 1980
James J. Coles, of Bickle, Coles & Snyder, Bismarck, for defendant and appellant.
VANDE WALLE, Justice.
The State of North Dakota has filed a motion to dismiss the appeal of Timothy R. Lewis from a criminal judgment of conviction entered by the Burleigh County district court. We deny the motion to dismiss the appeal.
Timothy R. Lewis was convicted in Burleigh County district court on January 11, 1980, by Judge Larry M. Hatch of the crime of robbery. Lewis was declared a dangerous special offender аnd sentenced to twenty years in the State Penitentiary under
“On or about the 23rd day of January, 1980 I received yоur notice of appeal. Recently, I asked the Clerk of District Court in Burleigh County if she had received a notice of appeal from you. She stated that she had not.
“Notices of appeal should be filed in the office of the Clerk of Court wherein the matter was filed, in your case Burleigh County. I merely inform you of this and suggest that you consult with an attorney.”
Lewis apparently took no further action until March 19, 1980, when he filed a notice of intent to make application for the issuance of a writ of mandamus against Marian Barbie, Clerk of the District Court, and Judge Hatch directing them “to perform the duties of their office.”1
Lewis did not file the notice of appeal with the Clerk of District Court of Burleigh County as suggested by Judge Hatch. Lewis contends he thought that Judge Hatch would file the notice of appeal. Upon learning subsequently that Lewis hаd not filed the notice of appeal with the Clerk, Judge Hatch filed the notice. The record reveals that the notice was filed with the Clerk of the District Court, Burleigh County, on April 10, 1980.
On September 26, 1980, the State filed a motion to dismiss the appeal “by and for the reasons that this Court does not have jurisdiction over the appeal, that Defendant-Appellant has failed to follow the Rules of Appellate Procedure, and that such appeal is frivolous.”
As a basis for its motion to dismiss, the State argues:
- This court lacks jurisdiction over the appeal because the notice of appеal was not properly filed as required by Rule 4(b) of the North Dakota Rules of Appellate Procedure.
- A dismissal is warranted under Rule 31(c), North Dakota Rules of Appellate Procedure, because the transcript was not ordered and Lewis‘s brief was not filed within the time presсribed by the rules.
- Lewis‘s appeal is frivolous in that there are no questions of fact or law which would necessitate an appeal.
Turning to the first issue raised by the State, the lack of jurisdiction over the appeal, we note that Rule 4(b), N.D.R.App.P., provides, in part:
“In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from.”
The State refers us to the decision of this court in City of Minot v. Lundt, 268 N.W.2d 482, 484 (N.D.1978), wherein the court stated:
“This court has held that an appeal is governed by the appellate rules and that a failure to file a notice of appeal within the prescribed time as set forth in Rule 4(b), N.D.R.App.P., is fatal.”
The Lundt decision quoted from the decision in State v. Metzner, 244 N.W.2d 215, 220 (N.D.1976), holding that Rule 4(b), N.D.R.App.P., and Rule 37(b), N.D.R.Crim.P., are mandatory and jurisdictional and compliance with the jurisdictional requirement that the notice of appeal be timely filed cannot be waived by this court.
There is no dispute that Lewis, acting pro se, sent the notice of appeal to Judge Hatch within the 10-day limit prescribed by the
An examination of the Lundt decision reveals little similarity with the facts of this case. In Lundt an appeal was taken from the Minot municipal court to the district court. A written order of dismissal of the appeal was filed by the district judge on April 29, 1976, after Lundt failed to appear. Lundt did not file a notice of appeal of the order of dismissal with the clerk of the district court until February 22, 1978, two years and 11 months after the order of dismissal was entered. Although there had been considerable correspondence between Lundt and this court, the court noted that it could not be equated to or considered as constituting a notice of appeal because it did not specify the party taking the appeal, did not designate the order appealed from, and did not name the court to which the appeal was taken. In this instance the notice of appeal filed with Judge Hаtch was timely, and it met all other requirements for a notice of appeal. A copy was simultaneously served on the State‘s Attorney, so the State cannot complain it lacked knowledge of Lewis‘s intent to appeal. At oral argument counsel for the State conceded that at the time it received the notice of appeal it had no reason to suspect the notice of appeal had been filed with the District Judge rather than the Clerk of the District Court.
In Metzner the notice of appeal was not filed within the 10-day periоd required by Rule 4(b) nor within the 40-day period permitted by the extension provision of that rule. This court noted that there was “nothing in the record showing that Metzner communicated to the district court, within the time requirements set forth in Rule 4(b), N.D.R.App.P., and in Rule 37(b), N.D.R.Crim.P., his intent to appeal from the burglary conviction.” State v. Metzner, supra, 244 N.W.2d at 220. Here, Lewis did communicate to the District Court his intent to appeal although that communication was sent to the District Judge rather than the Clerk of Court.
Lewis argues that he has “substantially complied” with the rules of appellate procedure and that we have jurisdiction to hеar this case on its merits. We do not adopt a standard of “substantial compliance” with the provisions of Rule 4(b), N.D.R.App.P., or Rule 37(b), N.D.R.Crim.P., insofar as the filing of the notice of appeal is concerned. However, under the peculiar facts of this case we conclude Lеwis‘s notice of appeal filed with the District Judge and served upon the State‘s Attorney within 10 days after the judgment of conviction is sufficient to give this court jurisdiction over the appeal.
The State also urges us to dismiss the appeal because Lewis did not order the transcript of proceedings within the time specified by Rule 10(b), N.D.R.App.P., nor file his brief within the time specified by Rule 31, N.D.R.App.P. The transcript was not ordered until August 7, 1980.3
Rule 3(a), N.D.R.App.P., provides that failure of an appellant to take any step other than the timely filing of a notice of appeal dоes not affect the validity of the appeal but does permit this court to dismiss the appeal. We decline to dismiss the ap-
Lewis was represented at trial by court-appointed counsel. Following the judgment of conviction Lewis‘s counsel informed him there did not appear to be sufficiеnt grounds upon which to base an appeal, although counsel did inform Lewis, by letter, of the time within which an appeal must be filed and also informed Lewis that he should request assistance on such an appeal should he desire to proceed. The letter also indicatеd that Lewis might wish to request appointment of different counsel. Lewis did not further correspond with his counsel nor was his counsel aware that Lewis was involved in an appeal to this court in another matter in which the obligation of court-appointed counsel who finds no merit in an аppeal of a criminal conviction was at issue. See State v. Lewis, 291 N.W.2d 735 (N.D.1980). Lewis argues he was unaware of his rights in those instances in which his court-appointed counsel has informed him he finds no basis for an appeal and that he assumed he must act as his own attorney if he was to procеed with an appeal. In State v. Lewis, supra, Lewis did appear pro se after his court-appointed counsel had filed a brief in an attempt to comply with the requirements of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Lewis we noted that in North Dakota a defendant has a right to appeal from a vеrdict or judgment of conviction as a matter of law and that, rather than the Anders procedure,
“... the proper procedure to be followed by the courts of this State in cases such as the one before us in which the court-appointed defense counsel believes that the indigent defendant‘s appeal is without merit is to appoint another attorney to represent the defendant on appeal as soon after the initially appointed attorney makes his opinion as to frivolity known to the court as is practical.” State v. Lewis, supra, 291 N.W.2d at 738.
Our decision in Lewis was not issued until April 30, 1980, some time after the filing of the notice of appeal by Judge Hatch. Lewis was acting as his own counsel during this period of time because he believed his court-appointed defense counsel would not represent him on appeal and his right to other counsel appоinted by the trial court had not yet been delineated by this court. It is apparent from a reading of the application for a writ of mandamus filed with this court that Lewis believed the Clerk of the District Court had custody of the transcripts and refused to provide them to him. It is also appаrent, therefore, that Lewis was unaware of his obligation to order a transcript. His application for a writ of mandamus specifies that a copy of the transcript was necessary for him to prepare and submit his brief on appeal.
We do not believe that any rule or statute should be modified, altered, or applied differently merely because a party not learned in the law was or is proceeding pro se in an appeal. Latendresse v. Latendresse, 294 N.W.2d 742 (N.D.1980). However, the circumstances recited above cause us to conclude we should nоt, in this instance, dismiss the appeal for failure to timely order the transcript and file the brief.
Finally, the State argues that we should dismiss Lewis‘s appeal because it is frivolous, in that there are no questions of fact or law which would necessitate an appeal. Lewis insists that an еxamination of the complete record will disclose potential grounds for a new trial or reversal, but we do not intend at this time to examine the complete record to determine whether or not the appeal is frivolous. In view of Lewis‘s position that there are potential grounds for a new trial or reversal of his conviction, it would be preferable that he specifically point to some of these potential grounds, particularly in view of his noncompliance with some of the appellate rules. Nevertheless, we аre aware that Lewis‘s sentence is severe, i. e., 20 years in the State Penitentiary. In view of the serious-
For the reasons stated in this opinion the motion to dismiss the appeal is denied.
ERICKSTAD, C. J., and PAULSON and SAND, JJ., concur.
PEDERSON, Justice, concurring specially.
Paraphrasing what Justice Vogel wrote in State v. Haakenson, 213 N.W.2d 394, 399 (N.D.1973), the only traps for the unwary on the road to the appellate courthouse that should not be eliminated are: (1) the matter is first raised in the trial court, and (2) there be a valid appeal from the judgment. In agreeing with Justice Vande Walle, I would not want anyone to think that I agree to removing trap number (2).
An appeal from a judgment must be filed in order to be a valid appeal, but if the failure to file is the result of action contributed to by court officials, I think that fair play requires that an exception be made.
STATE of North Dakota, Plaintiff and Appellee, v. Timothy Roger LEWIS, Defendant and Appellant
Cr. No. 702-B
Supreme Court of North Dakota
Dec. 19, 1980