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State v. Overholt

Supreme Court of North Dakota

June 27, 2019

State of North Dakota, Plaintiff and Appellee
v.
Matthew Jeffrey Overholt, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson, Judge.

          Derek K. Steiner (argued), Assistant State's Attorney, Ryan J. Younggren (on brief), and Nicholas S. Samuelson (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, ND, for plaintiff and appellee.

          Will R. Budke, Wahpeton, ND, for defendant and appellant.

          OPINION

          CROTHERS, JUSTICE

         [¶1] Matthew Overholt appeals from a district court order modifying its order deferring imposition of sentence. We reverse because the district court erred in relying on a second case that had been automatically dismissed to modify its order in this case, and because the State presented no other evidence supporting its motion.

         I

         [¶2] In November 2017 Overholt was charged with misdemeanor minor in possession or consumption of alcohol. In December 2017 he pled guilty. The district court entered an order deferring imposition of sentence and placed him on unsupervised probation with an end date of November 30, 2018, and with the condition that he violate no criminal laws during the probation term. The court further ordered that sixty-one days after termination of his unsupervised probation, Overholt's guilty plea would be withdrawn, the case dismissed, and the file sealed.

         [¶3] In April 2018 Overholt was charged with a second misdemeanor minor in possession or consumption of alcohol. In May 2018 he pled guilty in the second case, and the court entered an order deferring imposition of sentence, and placed him on unsupervised probation for three months. Overholt completed the term of unsupervised probation in the second case. Under the order deferring imposition of sentence in that case, on October 13, 2018, his guilty plea was withdrawn, the case dismissed, and the file was to have been sealed.

         [¶4] In December 2018 the State moved the district court to modify the order deferring imposition of sentence in this case on the basis of his offense and guilty plea in the second case. The State requested Overholt's guilty plea in this case not be withdrawn, the case not be dismissed, and the file not be sealed. On December 31, 2018, the court granted the State's motion.

         II

         [¶5] At the outset, the State asserts the order is not appealable . The State argues the district court's order modifying its order deferring the imposition of sentence does not fall within any of the subsections of N.D.C.C. § 29-28-06. The State contends the order does not affect "substantial rights" under N.D.C.C. § 29-28-06(5) because the conditional nature of a deferred imposition of sentence "suggests" a post-probation withdrawal of a guilty plea, dismissal, and sealing are not rights. The State argues that without a judgment of conviction or other final order under N.D.C.C. § 29-28-06, this Court is without jurisdiction.

         [¶6] Overholt argues the order is appealable because an order complying with N.D.R.Crim.P. 32(b) serves as a judgment of conviction for purposes of appeal. See State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d 897; see also N.D.R.Crim.P. 32(b) ("A judgment of conviction must include the plea, the verdict, and the sentence imposed."). He also contends the order affects his "substantial rights" under N.D.C.C. § 29-28-06(5), as does an order revoking a suspended sentence which is appealable. See State v. Lesmeister, 288 N.W.2d 57, 59-60 (N.D. 1980).

         [¶7] We have jurisdiction in this case because the appealed order modifying the order deferring imposition of sentence maintains Overholt's guilty plea, imposes sentence, and constitutes a judgment of conviction under N.D.R.Crim.P. 32(b). See also State v. Vollrath, 2018 ND 269, ¶ 5, 920 N.W.2d 746; State v. Kottenbroch, 319 N.W.2d 465, 471-72 n.3 (N.D. 1982). Moreover, the appealed order affects "substantial rights" under N.D.C.C. § 29-28-06(5). See also N.D.R.Crim.P. 32.1, Explanatory Note ("An order deferring imposition of sentence is not a ...


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