City of Grand Forks v. Mata ( 1994 )

LEVINE, Justice,

dissenting.

The majority analyzes this case as a failure to cite to the “penalty provision” of the Grand Forks City Code. I believe this case is better understood as a failure to cite to NDCC § 39-06-42, in violation of NDRCrimP 7(e). Because I would reverse on that ground, I dissent.

Rule 7(c) says, in part:

“The indictment or information must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission is not ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant.”

The trial court sentenced the defendant under NDCC § 39-06-42 and imposed the mandatory minimum four-day jail sentence provided by that statute. But the defendant had no notice that he was alleged to have violated NDCC § 39-06-42 and, as a result, he had no notice that he was facing imprisonment. The traffic citation referenced only the city ordinance the defendant was alleged to have violated, which carried a maximum fine of $500. Because the defendant effectively was charged, tried, and sentenced for a violation of NDCC § 39-06^42, but was given notice only of an alleged violation of a city ordinance, he was prejudicially misled.