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State v. Jorgenson

Supreme Court of North Dakota

July 11, 2018

State of North Dakota, Plaintiff and Appellee
v.
James Jorgenson, Defendant and Appellant

          Appeal from the District Court of Mountrail County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

          Amber J. Fiesel, Assistant State's Attorney, Powers Lake, N.D., for plaintiff and appellee.

          Markus A. Powell, Dickinson, N.D., for defendant and appellant.

          OPINION

          Tufte, Justice.

         [¶ 1] James Jorgenson appeals from the district court's order approving pretrial diversion and order of restitution. Although these orders are not appealable under N.D.C.C. § 29-28-06, we exercise our supervisory jurisdiction to review them. Because these orders do not comply with N.D.R.Crim.P. 32.2, they are vacated.

         I

         [¶ 2] The State charged Jorgenson with two counts of theft of property for depriving Jackie Blikre of proceeds from the sale of calves. The district court approved a pretrial diversion agreement entered into by the parties ("Diversion Order"), suspending prosecution for sixty months after which the charges would be dismissed if Jorgenson met certain conditions. One such condition was that Jorgenson "shall pay restitution to be determined by the Court at a contested Restitution Hearing...." After a restitution hearing, the district court ordered Jorgenson to pay restitution in the amount of $50, 000 ("Restitution Order").

         II

         [¶ 3] "The right of appeal in North Dakota is governed purely by statute, and an order is appealable only if it comes within the provisions of a specific statute." State v. Moore, 2003 ND 83, ¶ 4, 662 N.W.2d 263. "Although '[s]tatutes conferring the right to appeal must be liberally construed to maintain the right to appeal,' the party appealing bears the burden of showing that the right to appeal comes within the language of a statute." Id. Section 29-28-06, N.D.C.C., provides statutory authority for appeals by a defendant in a criminal case, and states:

An appeal may be taken by the defendant from:
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of ...

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