from the District Court of Cass County, East Central Judicial
District, the Honorable Thomas R. Olson, Judge.
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.
R. Budke, Wahpeton, ND, for defendant and appellant.
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.
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Overholt's guilty plea would be withdrawn, the case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.
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October 13, 2018, his guilty plea was withdrawn, the case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.
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not be withdrawn, the case not be dismissed, and the file not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
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.
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).
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 ...