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City of Williston v. Werkmeister

Supreme Court of North Dakota

July 1, 2015

City of Williston, Plaintiff and Appellee
v.
Kevin Werkmeister, Defendant and Appellant

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

Taylor D. Olson, Williston, N.D., for plaintiff and appellee.

Chad R. McCabe, Bismarck, N.D., for defendant and appellant.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom.

OPINION

Page 430

VandeWalle, Chief Justice.

[¶1] Kevin Werkmeister appealed from a district court order denying his appeal from a municipal court's judgment and orders denying his motion to withdraw his guilty plea and his motion to reconsider. We conclude we do not have jurisdiction, and we dismiss the appeal.

I

[¶2] On September 19, 2013, Werkmeister pled guilty to the charge of simple assault in violation of a city ordinance in Williston Municipal Court. In December 2013, Werkmeister moved to withdraw his guilty plea, arguing withdrawal was necessary to correct a manifest injustice because the court failed to comply with the procedural requirements of N.D.R.Crim.P. 11. The municipal court denied Werkmeister's motion. In February 2014, Werkmeister moved to reconsider. In an April 17, 2014, order, the municipal court denied the motion, concluding Werkmeister failed to properly bring the motion under the correct procedural rule and the motion was untimely.

[¶3] On April 30, 2014, Werkmeister filed a notice of appeal, appealing to the district court from the " Judgment, and any and all adverse rulings, entered against him on April 17, 2014 . . . ." The district court concluded Werkmeister was " out of time" to appeal from the judgment of conviction, but he filed post-judgment motions and it had jurisdiction under N.D.C.C. § 29-28-06(5). The court also concluded the municipal court did not err in denying Werkmeister's motion to withdraw his guilty plea or the motion for reconsideration, finding Werkmeister signed a notification of rights and acknowledgment, which fulfilled any requirement to establish a record that Werkmeister knowingly and voluntarily pled guilty.

II

[¶4] 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.'" Holbach v. City of Minot, 2012 ND 117, ¶ 5, 817 N.W.2d 340 (quoting City of Bismarck v. Walker, 308 N.W.2d 359, 361 (N.D. 1981)). The North Dakota Constitution provides that the district court has appellate jurisdiction " as may be provided by law or by rule of the supreme court." N.D. Const. art. VI, § 8. There is no constitutional right to an appeal. City of Grand Forks v. Riemers, 2008 ND 153, ¶ 5, 755 N.W.2d 99. The right to appeal is

Page 431

a statutory right and, if a right to appeal does not exist, this Court is without jurisdiction to consider the merits and we must dismiss ...


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