Rule 35 - Scope of Review(a) Civil Appeals.(1) Power of Court on Appeal. Upon an appeal from a judgment or order, the court may reverse, affirm, or modify the judgment or order as to any party. If the appeal is from a part of the judgment or order, the court may reverse, affirm, or modify that part of the judgment or order. (2) Intermediate Orders. Upon an appeal from a judgment, the court may review any intermediate order or ruling which involves the merits and affects the judgment appearing upon the record. (3) Order for New Trial or Determination of Issue.(A) The court may order a new trial of the case or of an issue or issues.(B) If an issue or issues have not been tried or, if tried, not determined, the court may remand the case to the district court for a determination of the issue or issues, without relinquishing jurisdiction of the appeal.(i) The court may defer determination of the appeal until the issue or issues have been determined and certified to the court by the district court. The proceedings and the determination of the district court, upon remand, are part of the record on appeal. (ii) Within 14 days of certification by the district court, a party may request in writing supplemental briefing or oral argument providing details of the specific additional submissions or proceedings the party believes would be useful to the court.(4) Judgment or Decision of Court. The court must remit its final judgment or decision to the district court from which the appeal was taken to be enforced accordingly. If the appeal was from a judgment, the district court must enter final judgment in accordance with the court's judgment or decision, unless the court orders otherwise. (b) Criminal Appeals.(1) Power of Court on Review. Upon an appeal from a verdict, judgment, or order, the court may reverse, affirm, or modify the verdict, judgment, or order, and may do any of the following: (A) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the verdict, judgment, or order; (C) remand the case, with proper instructions and its opinion, to the district court. (2) Intermediate Orders. Upon an appeal from a verdict, judgment, or order, the court may review any intermediate order or ruling which involves the merits or which may haveaffected the verdict or the judgment adversely to the appellant. Joint Procedure Committee Minutes of September 29, 2022, pages 8-9. April 24, 2020, pages 5-8; April 25-26, 2002, pages 17-18; May 25-26, 1978, page 18; March 16-17, 1978, pages 5-6; January 12-13, 1978, page 24, 28-27-28, 28-27-29, 29-28-27, and 29-28-28, N.D.C.C.
EXPLANATORY NOTE Rule 35 was amended, effective 3/1/2003; 3/1/2021. The explanatory note was amended, effective 3/1/2024. Rule 35 incorporates in these rules statutes relating to the scope of review by the Supreme Court in civil and criminal cases, all of which have been superseded. Under N.D.R.Crim.P. 35 on correcting or reducing a sentence and N.D.R.Crim.P. 36 on clerical error, generally only the sentencing court may correct an illegal sentence or a clerical error in a sentence. This rule confirms the supreme court has discretion to correct a criminal sentence when an error is clear from the record. Rule 35 was amended, effective 3/1/2003. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. Paragraph (a)(3) was amended November 25, 2020, effective 3/1/2021, to require a party seeking additional briefing or oral argument after a remand to the district court to make a specific request to the court. STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 28-27-28, 28-27-29, 29-28-27, 29-28-28, 29-28-29, and 28-27-31.
CROSS REFERENCE: N.D.R.Civ.P. 52(a) (Findings by the Court); N.D.R.Crim.P. 35 (Correcting or Reducing a Sentence); N.D.R.Crim.P. 36 (Clerical Error); N.D.C.C. § 29-28-35 (providing the supreme court's authority when the state appeals in a criminal proceeding).