Holbach v. City of Minot

2012 ND 117, 817 N.W.2d 340, 2012 WL 2044598, 2012 N.D. LEXIS 109
North Dakota Supreme Court·Decided June 7, 2012·No. 20110277, 20110278·Published·Cited by 19 cases

Opinion

MARING, Justice.

[¶ 1] Mitchell Holbach appeals from a municipal court judgment summarily dismissing his application for post-conviction relief. We conclude the judgment is not appealable but consider this appeal under our supervisory jurisdiction. We hold post-conviction relief under N.D.C.C. ch. 29-32.1 is not available in municipal courts in North Dakota. We conclude the judgment is void and direct the municipal court to dismiss Holbach’s application.

I

[¶ 2] On January 5, 2006, Holbach was stopped, arrested, and charged with driving under suspension and driving without liability insurance. The officer’s report indicated that when he observed Holbach driving, he recognized Holbach from a previous liability insurance arrest. He mistakenly believed Holbach’s last name was Knutson. The officer’s dispatch check on “Mitchell Knutson” revealed Knutson had an active bench warrant and, based on his belief that Holbach’s name was Knutson, the officer stopped Holbach. Shortly after the stop, the officer recognized his error, but discovered Holbach’s driving privileges were suspended, and Holbach admitted the vehicle was not insured.

[¶ 3] On January 6, 2006, Holbach pled guilty to both offenses in municipal court. He signed a notification of rights and acknowledgment indicating he had been informed of and understood his rights. In addition to the notification of rights portion of the form, Holbach allegedly dated and signed the “guilty plea” section and indicated he was voluntarily entering a plea, waiving his rights, and did not wish to consult with an attorney.

[¶ 4] On May 16, 2010, Holbach filed an application for post-conviction relief under N.D.C.C. ch. 29-32.1 in municipal court. Holbach argued his conviction was based on evidence obtained under an unlawful arrest; evidence gained under an unconstitutional search and seizure; a guilty plea unlawfully induced or not made voluntarily; and the municipal court’s failure to advise him of his rights or of the minimum or maximum punishments for the offenses. The City of Minot served and filed an answer. The municipal court entered judgment summarily dismissing Holbach’s application on August 8, 2010. Holbach appealed the judgment to the district court on August 3, 2011, and to this Court on September 20, 2011.

II

[¶ 5] Before we consider the merits of an appeal, we must have jurisdiction. “Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created and can be acquired and exercised only in the manner prescribed.” City of Bismarck v. Walker, 308 N.W.2d 359, 361 (N.D.1981). “The *343 right of appeal in this state is statutory[,]” and “[o]ne attempting an appeal must show his right thereto.” Id. If no right to appeal exists, we are without jurisdiction to consider the merits and must dismiss the appeal. City of Grand Forks v. Lamb, 2005 ND 103, ¶ 5, 697 N.W.2d 362.

[¶ 6] Appeal from a municipal court judgment of conviction or order deferring imposition of sentence is governed by statute. See N.D.C.C. § 40-18-19. Section 40-18-19, N.D.C.C., states, “[a]n appeal may be taken to the district court from a judgment of conviction or order deferring imposition of sentence in a municipal court in accordance with the North Dakota Rules of Criminal Procedure.” This statute provides for an appeal to “the district court,” not directly to the Supreme Court. It provides for the appeal of a judgment of conviction or order deferring imposition of sentence. The present appeal is from a judgment summarily dismissing a post-conviction relief application directly to the Supreme Court.

[¶ 7] An appeal from a final judgment in a matter that has been transferred from municipal court under N.D.C.C. § 40-18-15.1 to district court for trial can be brought to the Supreme Court. See City of Grand Forks v. Thong, 2002 ND 48, ¶ 15, 640 N.W.2d 721. The present appeal is not such a case.

[¶ 8] Under N.D.C.C. § 39-06.1-03(5)(a),

“[i]f a person is aggrieved by a finding in the municipal court that the person committed the [traffic] violation, the person may, without payment of a filing fee, appeal that finding to the district court for trial anew. If, after trial in the appellate court, the person is again found to have committed the violation, there may be no further appeal.”

Further, under this section, “[a] person may not appeal a finding from a district judge or magistrate that the person committed the [traffic] violation.” Id. Clearly, under this statute, there is no appeal to the Supreme Court.

[¶ 9] Holbach argues that N.D.C.C. § 29-32.1-14, which states, “[a] final judgment entered under this chapter may be reviewed by the supreme court of this state upon appeal as provided by rule of the supreme court,” provides statutory authority for a direct appeal from municipal court to the Supreme Court. However, there is nothing in N.D.C.C. § 29-32.1-14 that extends this right to a municipal court judgment. We would be inferring our Court’s jurisdiction to hear appeals from the municipal court in this context. We decline to do so.

[¶ 10] There is no statutory authority for an appeal directly to the Supreme Court from a judgment of a municipal court. In addition, municipal courts are not courts of record. See N.D.C.C. § 27-01-01. Chapter 29-32.1, N.D.C.C., refers to the record below under several sections. See N.D.C.C. § 29-32.1-04(2); N.D.C.C. § 29-32.1-10(1) and (2). If an appeal from municipal court directly to the Supreme Court was proper, review would be impossible because of the lack of a record. We conclude Holbach has failed to show his right to an appeal from municipal court directly to the Supreme Court.

[¶ 11] Although Holbach’s appeal is not authorized by statute, we deem this attempt at an appeal as a request for our Court to exercise its supervisory authority. See N.D.C.C. § 28-27-01.

[¶ 12] “Our authority to issue supervisory writs arises from Article VI, Sec. 2 of the North Dakota Constitution and N.D.C.C. § 27-02-04.” Dimond v. State Bd. of Higher Educ., 1999 ND 228, *344 ¶ 19, 608 N.W.2d 66. The authority is discretionary, and it cannot be invoked as a matter of right. Id. “We issue supervisory writs ‘only to rectify errors and prevent injustice when no adequate alternative remedies exist.’ ” Id. (quoting Reems v. Hunke, 509 N.W.2d 45, 47 (N.D.1993)). Further, we generally do not exercise supervisory jurisdiction when the proper remedy is an appeal, even though an appeal may be inconvenient or increase costs. Forum Commc’ns Co. v. Paulson, 2008 ND 140, ¶ 8, 752 N.W.2d 177. This authority is exercised “ ‘rarely and cautiously’ and only in ‘extraordinary cases.’ ” Dimond, 1999 ND 228, ¶ 19, 603 N.W.2d 66 (quoting State ex rel. Heitkamp v. Hagerty, 1998 ND 122, ¶6, 580 N.W.2d 139).

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Holbach v. City of Minot, 2012 ND 117, 817 N.W.2d 340, 2012 WL 2044598, 2012 N.D. LEXIS 109 (N.D. 2012).

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