Navajo Nation v. John

OPINION DENYING MOTION OPPOSING THE APPEAL

This matter comes before the Court on the motion by the Office of the Prosecutor to dismiss the appeal and the response filed by Appellant. Appellee asserts Appellant untimely filed their motion for reconsideration and that Rule 47(a)(2)1 of the Navajo Rules of Criminal Procedure governs the filing of the motion for reconsideration. The Court denies the motion.

It is established law that a criminal appeal must be filed within 30 calendar days of the judgment, 7 N.N.C. § 801; N.R.A.P. Rule 2(c). This requirement is jurisdictional. N N v. Devore, 5 Nav. R. 155 (Nav.Sup.Ct. 1987). In criminal cases, a N.R.A.P. Rule 5(d) motion for reconsideration must either be filed with the district court before the notice of appeal is filed, see Lee v. NN, 6 Nav. R. 124, 125 (Nav.Sup.Ct. 1989) (motion for reconsideration is a mandatory prerequisite to appeal), or the motion can be filed on the same day as the notice of appeal, see Help v. Silvers, 4 Nav. R. 46, 47 (Nav.Ct.App. 1983), Other than the foregoing case law, there is no statute or rule of procedure as to when the motion for reconsideration is t:o be filed *336after the final judgment. In.other words, there is no time limit on when the motion must be filed after the judgment. However, a motion for reconsideration is deemed automatically denied if the trial court fails to rule on the motion within 5 days of its filing. NN v. Morgan, 8 Nav. R. 732, 737 (citing Help at 47). Furthermore, we glean from the discussion in Help about jurisdiction between the trial court and the appellate court that the notice of appeal can only be considered by this Court after the 5-day period for the district court to act has expired. We therefore hold there are two prerequisites to perfect an appeal: 1) the notice of appeal shall be filed within 30 days of the judgment and 2) the 5-day ruling period for a district court to act upon a motion for reconsideration must have expired.

In this case appellant filed a motion for reconsideration 24 days after judgment; the motion was deemed denied 5 days thereafter by the non-action of the District Court. The notice of appeal was filed the day after the reconsideration was deemed denied and within 30 days of the final judgment. The Prosecutor’s motion is therefore DENIED. This appeal is properly before the Court.