from the District Court of Walsh County, Northeast Judicial
District, the Honorable M. Richard Geiger, Judge.
Barbara L. Whelan, State's Attorney, for plaintiff and
A. Escarraman, for defendant and appellant.
1] Terry Brendel appeals from an order forfeiting $5, 000 of
the $25, 000 bail bond he posted for his son, Travis Brendel.
Because Terry Brendel is not statutorily authorized to appeal
the bond forfeiture order, we dismiss the appeal.
2] In May 2014 Travis Brendel was charged with various drug
crimes, he posted bail and a condition of his release was
that he not use or possess controlled substances. Later in
May 2014 Travis Brendel was arrested and charged with
property-related crimes and a second set of drug crimes. His
bail bond was modified and increased. Travis Brendel was
released from custody after posting bail, and a condition of
release was that he not use or possess controlled substances.
Travis Brendel later failed to appear for a court hearing,
tested positive for drug use and was arrested. The district
court increased his bail which resulted in an additional $25,
000 needed for Travis Brendel's release from jail.
3] In November 2014 Travis Brendel's father, Terry
Brendel, posted $25, 000 in cash to bail out his son. The
same condition of release forbidding drug use was applicable.
Travis Brendel again tested positive for drug use and was
arrested in May 2015. The court reset bail at $250, 000. The
State also moved to revoke and forfeit bond, and the court
granted the motion. Terry Brendel moved to set aside the bond
forfeiture for the $25, 000 he posted on behalf of his son.
The State responded that it sought forfeiture of only $5, 000
of the $25, 000 posted by Terry Brendel. Terry Brendel,
represented by an attorney who also represented his son,
appeared at the bail forfeiture hearing but did not testify.
Following the hearing, the court ordered that $5, 000 of the
$25, 000 amount posted by Terry Brendel be forfeited. Travis
Brendel ultimately pled guilty to federal drug charges
arising out of the same incidents and the state charges in
the two cases were dismissed with prejudice.
4] Terry Brendel is the sole appellant challenging the
forfeiture order in this case. "'The right to appeal
is a jurisdictional matter and, even if the parties do not
raise the issue of appealability, we must dismiss the appeal
on our own motion if we conclude we do not have
jurisdiction.'" Pierce Family Mineral Tr. v.
Jorgenson, 2012 ND 100, ¶ 6, 816 N.W.2d 779
(quoting Brummund v. Brummund, 2008 ND 224, ¶
4, 758 N.W.2d 735). In North Dakota, the right to appeal is
purely statutory. See State v. Owens, 1997
ND 212, ¶ 6, 570 N.W.2d 217. Chapter 29-28, N.D.C.C.,
provides for appeals in criminal cases.
5] An order denying a motion for return of bond is appealable
under N.D.C.C. § 29-28-06(5) because it affects a
defendant's substantial property right. Owens,
1997 ND 212, ¶ 11, 570 N.W.2d 217. However, appeals in
criminal cases may be taken only by a "defendant, "
N.D.C.C. § 29-28-06, or the "state." N.D.C.C.
§ 29-28-07. The orders here are part of two separate
criminal cases, and Terry Brendel is neither the
"defendant" nor the "state."
6] Restricting the right of appeal to a "defendant"
in a bail forfeiture proceeding comports with state law
governing bail. Section 29-08-28, N.D.C.C., provides:
"Except as otherwise provided in this section, moneys
deposited as bail are the property of the defendant, whether
deposited by the defendant or by a third person on the
defendant's behalf. If bail moneys are deposited by a
third person, the person must be notified at the time of
deposit that the moneys may be paid to the defendant upon
final disposition of the case or applied to any fine, cost,
or restitution imposed on the defendant. The person may
direct, subject to further order of the judge, that the
deposited moneys be released to that person upon final
disposition of the case. When moneys are accepted by the
court as bail, the judge shall order that the moneys received
be deposited with the clerk of court. The clerk shall retain
the moneys until the final order of the court disposing of
the case. Upon release of the moneys held by the clerk, the
moneys must be paid to the defendant or pursuant to the
defendant's written direction or, unless otherwise
ordered by the judge, as directed by a person who deposited
moneys on behalf of the defendant. In the case of a
conviction, the judge may order ...