from the District Court of Pembina County, Northeast Judicial
District, the Honorable John A. Thelen, Judge.
K. Demello Rice, Assistant Attorney General, Bismarck, N.D.,
for plaintiff and appellee.
A. Friese, Fargo, N.D., for defendant and appellant.
1] Dalyn James Vollrath appeals from a district court order
requiring him to pay Pembina County $5, 000 for guardian ad
litem fees. Because the order was issued after the conviction
was final and the issue was not preserved, the district court
lacked jurisdiction to amend the sentence. We vacate the
order requiring payment of guardian ad litem fees.
2] Vollrath was charged with one count of child abuse under
N.D.C.C. § 14-09-22. He moved the district court for
appointment of a guardian ad litem to protect the best
interests of the minor child. The district court appointed a
guardian ad litem in May 2017, stating the guardian ad
litem's fees would be "subject to future
reimbursement considerations." On September 29, 2017,
Vollrath pled guilty to one count of child neglect under
§ 14 -09-22.1. The court entered an Order Deferring
Imposition of Sentence ("DIS Order") on October 4,
2017. Pembina County sent the district court a letter on
November 21, 2017, requesting reimbursement for the guardian
ad litem fees. On December 8, 2017, the court entered a
Reimbursement Order requiring Vollrath to pay Pembina County
$5, 000 as reimbursement of the guardian ad litem fees paid
by the County.
3] Vollrath filed a motion to vacate the Reimbursement Order
on December 13, 2017. On March 8, 2018, the court stated the
Reimbursement Order "does not constitute restitution,
reparation or reimbursement of indigent defense costs and
expenses," and declined to hold a hearing on the motion
to vacate but invited supplemental arguments in writing. Both
Vollrath and the State submitted supplemental arguments. By
order dated April 19, 2018, the court denied Vollrath's
request for relief. Vollrath timely appealed that order.
4] Vollrath argues, among other things, the district court
acted beyond its jurisdiction when it ordered reimbursement.
After jurisdiction is initially invoked, a district court
continues to possess jurisdiction "until all issues
before the court have been finally determined,"
particularly when the court "expressly indicates its
intention to rule later on a particular matter."
J.S.S. v. P.M.Z., 429 N.W.2d 425, 428 (N.D. 1988).
Once a judgment is final, the district court generally
"loses jurisdiction to alter, amend, or modify that
judgment." State v. Meier, 440 N.W.2d 700, 702
(N.D. 1989). At the point of finality, "any attempt by
the trial court to amend or modify a final judgment is void
unless it is made upon grounds provided by statute or by the
Rules of Criminal Procedure for correcting or amending a
judgment." Id. A judgment of conviction is
considered final and appealable. N.D.C.C. § 29-28-06;
State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d
5] A criminal matter is final when no appeal is taken before
the time for appeal expires. Morel v. State, 2018 ND
141, ¶ 10, 912 N.W.2d 299. The defendant may appeal
from, among other events not relevant here, a "final
judgment of conviction" or an "order made after
judgment affecting any substantial right of the party."
N.D.C.C. § 29-28-06. Because the district court deferred
imposition of sentence, no criminal judgment was entered in
this case. "Where no separate judgment of conviction has
been entered and the order deferring imposition of sentence
complies with the requirements of N.D.R.Crim.P. 32(b) for
criminal judgments, the order serves as the judgment of
conviction and is appealable." Berger, 2004 ND
151, ¶ 8, 683 N.W.2d 897; see also State v.
Kottenbroch, 319 N.W.2d 465, 471-72 n.3 (N.D. 1982)
(holding an order deferring imposition of sentence is
appealable); State v. Himmerick, 499 N.W.2d 568,
570-71 (N.D. 1993) (same); State v. Trosen, 547
N.W.2d 735, 737 n.1 (N.D. 1996) (same); State v.
Bernstein, 2005 ND App 6, ¶¶ 8-9, 697 N.W.2d
371 (same). Therefore, entry of the DIS Order began the
period during which an appeal could have been taken.
6] A criminal action is considered "pending" from
its commencement to its "final determination upon appeal
or until the time for appeal has passed." State v.
Prince, 66 N.W.2d 796, 799 (N.D. 1954). A criminal
appeal may be filed for thirty days after the entry of the
order being appealed. N.D.R.App.P. 4(b)(1)(A). The DIS Order
was entered on October 4, 2017. It was amended on October 6,
2017, to correct a citation from" § 14-0 9-22"
to" § 14 -09-22.1." The order was final before
the district court entered the Reimbursement Order more than
sixty days later on December 8, 2017. The DIS Order contained
no reference to reimbursement, restitution, or reparation to
the County for guardian ad litem fees. The DIS Order also
makes no mention of holding open jurisdiction or of any other
future actions. See State v. Hatlewick, 2005 ND 125,
¶ 13, 700 N.W.2d 717 (noting the district court
expressly reserved determination of restitution in the
7] The Reimbursement Order must be vacated if it was
"not authorized by the judgment of conviction."
State v. Edwards, 2007 ND 113, ¶ 5, 736 N.W.2d
449. Here, the district court referenced guardian ad litem
fees in its May 2017 Order Appointing Guardian Ad Litem,
stating only that the fees were "subject to future
reimbursement considerations." That order was entered
more than five months prior to the DIS Order. There was
mention at the time of sentencing that the guardian ad litem
fees could be "revisited at a later date," but
nothing in the DIS Order reserved the issue of guardian ad
litem fees. "If there is a discrepancy between a trial
court's oral and subsequent written statements, the
written statements control." Deyle v. Deyle,
2012 ND 248, ¶ 18, 825 N.W.2d 245 (quoting Brown v.
Brodell, 2008 ND 183, ¶ 12, 756 N.W.2d 779).
8] The statement in the May 2017 Order that the County shall
pay the guardian ad litem fees "subject to future
reimbursement considerations" was not carried over to
the DIS Order. Because the DIS Order is appealable as a final
judgment and reserved no issues for further resolution, the
district court lost jurisdiction when the ...