from the District Court of Mountrail County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
J. Fiesel, Assistant State's Attorney, Powers Lake, N.D.,
for plaintiff and appellee.
A. Powell, Dickinson, N.D., for defendant and appellant.
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.
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
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 ...