McMorrow v. State

516 N.W.2d 282, 1994 N.D. LEXIS 115, 1994 WL 192983

• Court: North Dakota Supreme Court
• Decided: May 19, 1994
• Docket: Civ. 930337
• Status: Published

Opinions

SANDSTROM, Justice.

Patrick T. McMorrow appeals from a trial court judgment dismissing his application for post-conviction relief. Because McMorrow’s notice of appeal was not timely filed, we remand to the trial court to determine, under Rule 4(a), N.D.R.App.P., whether there was excusable neglect for the late-filed notice of appeal.

I

In October 1992, Patrick T. McMorrow was convicted by a jury of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(l)(a). McMorrow appealed his conviction to this Court, which affirmed the conviction. State v. McMorrow, 503 N.W.2d 848 (N.D.1993). In March 1993, McMorrow filed an application for post-conviction relief under N.D.C.C. ch. 29-32.1. McMorrow claims his conviction should be reversed because of lack of evidence, ineffective assistance of counsel, and prosecutorial misconduct. Following an evidentiary hearing, the trial court denied McMorrow’s application for post-conviction relief. Judgment was entered on August 17, 1993. The State served notice of entry of judgment on October 5, 1993. McMorrow filed his notice of appeal on October 14,1993.

II

N.D.C.C. § 29-32.1-14 of the Uniform Post-Conviction Procedure Act confers jurisdiction on this Court to review final judgments in post-conviction proceedings.

“Review. A final judgment entered under this chapter may be reviewed by the supreme court of this state upon appeal filed either by the applicant within ten days or by the state within thirty days after the entry of judgment.”

McMorrow’s notice of appeal was not filed within the ten days after entry of judgment allowed by N.D.C.C. § 29-32.1-14. The time limit for filing a notice of appeal is jurisdictional. State v. Guthmiller, 497 N.W.2d 407, 408 (N.D.1993); DeCoteau v. State, 499 N.W.2d 894, 895 (N.D.1993).

The Uniform Post-Conviction Procedure Act contains no remedy for late filing of a notice of appeal. DeCoteau. In DeCoteau, however, we recognized that “‘the ordinary processes of appellate review will be followed in post-conviction proceedings.’ ” DeCoteau (quoting Uniform Post-Conviction Procedure Act § 14, 11 U.L.A. 263 (1992)). In DeCoteau, we held Rule 4, N.D.R.App.P., applies to post-conviction relief proceedings. Under Rule 4, the time limits for filing a notice of appeal may be extended in situations involving excusable neglect. DeCoteau.

Post-conviction relief proceedings are civil in nature. Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985); State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987). The appropriate remedy for late filing of the notice of appeal in civil cases is Rule 4(a), N.D.R.App.P.¹ Rule 4(a) provides in part:

“Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this subdivision.” (Emphasis added.)

Under Rule 4(a), the “time otherwise prescribed” for filing the notice of appeal is “within sixty days of the date of the service of notice of entry of judgment or order appealed from.” Rule 4(a), N.D.R.App.P. Rule 4(a) specifies that the thirty-day extension for excusable neglect is to be added to the sixty-day period under Rule 4(a), rather than a time otherwise provided for bringing an appeal (in this case ten days). Therefore, in civil cases, including post-conviction relief proceedings, the trial court may extend the time for filing a notice of appeal for a period not to exceed ninety days from the date of service of notice of entry of judgment. See State v. Gasser, 306 N.W.2d 205, 208 (N.D.1981).

Ill

This case is remanded to the trial court to determine whether there was excusable neglect to extend the time for filing the notice of appeal. If so, we direct the record be promptly returned to this Court to consider the merits of McMorrow’s appeal.

NEUMANN, LEVINE and MESCHKE, JJ., concur.

1 . In DeCoteau, we erroneously quoted Rule 4(b), N.D.R.App.P., Appeals in criminal cases. Because post-conviction relief is a civil proceeding, the correct rule for computing the appropriate extension of time for excusable neglect is Rule 4(a), N.D.R.App.P., Appeals in civil cases. See State v. Jensen, 333 N.W.2d 686, 690 (N.D.1983) (because post-conviction relief is civil in nature, Rule 4(b), N.D.R.App.P., does not apply to cure the jurisdictional defect of an appeal.)