Jodi A. Bass (argued), and Kristal Kadrie (on brief), City Prosecutors, Fargo, ND, for plaintiff and appellee.
Stormy R. Vickers, Fargo, ND, for defendant and appellant.
[¶ 1] Jason White appeals from a district court order summarily affirming a municipal court judgment of conviction for disorderly conduct. Because the district court's summary affirmance was improper under N.D.R.Crim.P. 37( l ), we reverse and remand.
[¶ 2] A criminal complaint was filed against White alleging he violated a
Fargo Municipal Ordinance prohibiting disorderly conduct. After a municipal court trial, White was convicted. He appealed to the Cass County District Court pursuant to N.D.R.Crim.P. 37, and the district court held another arraignment, at which White again pled not guilty. The district court then issued a scheduling order which required White to personally appear at a subsequent dispositional conference. The scheduling order also set dates for a jury trial, bench trial, and change of plea hearing. It is unclear why the district court scheduled another arraignment or used the form of scheduling order it used. It appears that the scheduling order was a generic form used when a jury trial is available. However, a party who has waived a jury trial in municipal court and appealed a conviction to district court is not entitled to a jury trial. N.D.C.C. § 40-18-15; see also City of Bismarck v. Fettig, 1999 ND 193, ¶ 19, 601 N.W.2d 247 (concluding that N.D.C.C. § 40-18-15.1's language requiring a municipal defendant to request transfer and a jury trial in writing in order to avoid waiver supercedes § 40-18-15's implicit reservation of the right to a jury trial for municipal defendants who do not otherwise waive the right).
[¶ 3] White failed to appear at the dispositional conference scheduled in district court, but his attorney was present and requested a continuance or, alternatively, that the trial proceed as scheduled on the order. The district court stated on the record that, because of White's absence, it would dismiss or, in the alternative, summarily affirm the municipal court's judgment. The district court then issued a written order summarily affirming the municipal court judgment. When there is a discrepancy between a district court's oral and written orders, the written order controls and supersedes the ruling made from the bench. See Wetzel v. Schlenvogt, 2005 ND 190, ¶ 26, 705 N.W.2d 836. The record on appeal includes a court-approved stipulated statement of the case, in which the parties indicated the court's action was taken under N.D.R.Crim.P. 37( l ), which deals only with summary affirmance. We therefore analyze the district court's actions as a summary affirmance of a municipal court judgment.
[¶ 4] On appeal, White argues that the district court's summary affirmance of his case at the dispositional conference was improper under N.D.R.Crim.P. 37( l ). City of Grand Forks v. Lamb, 2005 ND 103, ¶ 7, 697 N.W.2d 362, lays out the procedure for an appeal of a municipal court judgment to the district court:
When a defendant appeals to the district court from a conviction in municipal court, the action is transferred to the district court for trial anew. N.D.C.C. § 40-18-19; N.D.R.Crim.P. 37(j). The district court does not review the record and decision of the municipal court, but holds an entirely new trial and independently determines whether the defendant has violated the ordinance. See City of Bismarck v. Uhden, 513 N.W.2d 373, 380 (N.D.1994) (although the appeal procedure under N.D.C.C. § 40-18-19 is " cumbersome and duplicative," appeals must be for trial anew because municipal courts are not courts of record). If the district court finds a violation it enters a judgment of conviction, which is appealable to this Court under N.D.C.C. § 29-28-06.
[¶ 5] In City of Fargo v. Komad, this Court was presented with the question of how a district court may proceed when a ...