#25576-r-PER CURIAM
2010 S.D. 82
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ALEXANDER GUTNIK, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA
* * * *
HONORABLE ARTHUR L. RUSCH
Judge
* * * *
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
MICHAEL A. HENDERSON
BRETT A. LOVRIEN of
Cadwell, Sanford, Deibert & Garry, LLP Attorneys for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 24, 2010
OPINION FILED 10/27/10
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PER CURIAM.
[¶1.] A magistrate court convicted Gutnik of possession of marijuana, but
acquitted him of possession of drug paraphernalia. Gutnik appealed his conviction
to circuit court. He filed a notice of appeal and attached a copy of the judgment, but
mistakenly identified the conviction as possession of paraphernalia rather than
possession of marijuana. The circuit court dismissed the appeal for lack of
jurisdiction. Because notices of appeal are to be construed liberally in favor of
sufficiency, we hold that the misidentification of the charge in the notice of appeal
did not deprive the circuit court of appellate jurisdiction. We reverse and remand.
Background
[¶2.] In conjunction with an unrelated arrest, Gutnik furnished a urine
sample to police that indicated the presence of marijuana. Gutnik was then
charged with possession of less than two ounces of marijuana, possession of
paraphernalia, and ingestion. After a trial to the magistrate court on stipulated
facts, the court found Gutnik guilty of possession of less than two ounces of
marijuana and not guilty of the other two charges. The court entered a single
judgment and sentence that included the one conviction and the two acquittals.
Gutnik attached a copy of the judgment to his notice of appeal to circuit court. The
notice incorrectly identified the crime of which he had been convicted. The notice
indicated that it was a “judgment and sentence of guilty to the use or possession of
drug paraphernalia,” rather than a judgment and sentence of guilty to possession of
less than two ounces of marijuana. The notice of appeal referred to the attached
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judgment, which clearly indicated the conviction for possession of less than two
ounces of marijuana.
[¶3.] The State moved to dismiss the appeal for lack of jurisdiction. The
circuit court determined the notice of appeal “was defective in that it erroneously
designated the part of the judgment appealed from.” The circuit court determined
this error was a jurisdictional defect and dismissed the appeal. Gutnik appeals that
dismissal to this Court.
Decision
[¶4.] This Court reviews issues concerning a court’s jurisdiction as questions
of law under the de novo standard of review. O’Neill Farms, Inc., v. Reinert, 2010
S.D. 25, ¶ 7, 780 N.W.2d 55, 57.
[¶5.] SDCL 15-38-23 sets forth the requirements of the notice of appeal from
magistrate court as follows: “The notice of appeal shall specify the party or parties
taking the appeal, shall designate the order or judgment, or part thereof, appealed
from, and shall be signed by the appellant or his attorney.” Gutnik acknowledges
his notice of appeal mistakenly identified the wrong charge, but claims that the
notice sufficiently conferred jurisdiction on the circuit court. He urges application of
the rule that “notices of appeal should be liberally construed in favor of their
sufficiency.” Int’l Union of Operating Eng’rs Local #49 v. Aberdeen Sch. Dist. No. 6-
1, 463 N.W.2d 843, 844 (S.D. 1991). This Court recently acknowledged the rule in
Raven Indus., Inc. v. Lee as follows: “‘[N]otices of appeal are liberally construed
where the intent to appeal an unmentioned or mislabeled ruling is apparent and
there is no prejudice to the adverse party.’” 2010 S.D. 49, ¶ 6 n.3, 783 N.W.2d 844,
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847 n.3 (quoting Walker v. Los Angeles Cnty. Metro. Transp. Auth., 104 P.3d 844,
847 (Cal. 2005)). The lone South Dakota case dealing with sufficiency of a notice of
appeal from magistrate to circuit court confirms this directive. “This judgment and
the notice of appeal must be tested by substance rather than by form[.]” Haag v.
Burns, 22 S.D. 51, 115 N.W. 104, 106 (1908).
[¶6.] The circuit court relied on the following South Dakota cases when it
dismissed the appeal for lack of jurisdiction: Mueller v. Cedar Shores Resort, Inc.,
2002 S.D. 38, 643 N.W.2d 56; Schmaltz v. Nissen, 431 N.W.2d 657 (S.D. 1988); and,
Chamberlain v. R. E. Lien, Inc., 521 N.W.2d 130 (S.D. 1994). The deficiencies in
those appeals differ from Gutnik’s. In two of the cases, the parties attempted to
argue issues in their briefs that were not identified in either the notice of appeal or
the notice of review. See Schmaltz, 431 N.W.2d at 661 (determining issues failed
because appellants “did not file any notice of appeal raising these issues before the
Court”); Chamberlain, 521 N.W.2d at 131 n.1 (refusing to address issues raised in a
brief because they were not included in a notice of review). In the third case, this
Court declined to address one of appellants’ claims because the order of dismissal on
which it was based had not been included in the notice of appeal. Mueller, 2002
S.D. 38, ¶¶ 32-33, 643 N.W.2d at 67. In each of those scenarios, this Court declined
review of issues or orders not identified in the notice of review or appeal.
[¶7.] Unlike these three cases, the deficiency in Gutnik’s appeal is more
akin to a typographical error. His notice of appeal indicated that he was appealing
from his judgment and sentence of guilt. Gutnik’s mistake was that he recited the
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wrong charge. Instead of the charge of which he was convicted, he recited the
charge of which he was acquitted.
[¶8.] International Union approved a two-step analysis to determine
sufficiency of a notice of appeal:
[I]f the intent of the appellant to appeal from a judgment may be
inferred from the text of the notice and if the appellee has not
been misled by the defect the appeal will be entertained. This
more liberal rule of construction is consistent with our oft
repeated preference for disposition of cases on the merits and
not on mere technicalities.
Int’l Union, 463 N.W.2d at 844.
[¶9.] The first inquiry is whether “the intent of the appellant to appeal from
a judgment may be inferred from the text of the notice.” Id. Here, that is obviously
the case. Gutnik timely filed a notice of appeal. The notice of appeal identified that
he sought to appeal his judgment of guilt. The judgment and sentence was
attached. It contained only one judgment of guilt, which was for possession of less
than two ounces of marijuana. A reasonable inference is that Gutnik intended to
appeal the only charge of which he was convicted.
[¶10.] The second inquiry is whether “the appellee has not been misled by the
defect.” Id. The State makes no argument it has been misled.
[¶11.] When dealing with issues regarding the sufficiency of a notice of
appeal, the general rule is that notices are to be liberally construed in favor of their
sufficiency. “Most state jurisdictions follow the rule that notices of appeal are to be
liberally construed in favor of their sufficiency so long as the opposing party has not
been misled to his or her irreparable harm.” 5 Am.Jur.2d Appellate Review § 294;
see also Greensleeves, Inc. v. Smiley, 942 A.2d 284, 291-92 (R.I. 2007) (“Finally, we
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note that there is virtual unanimity among American appellate courts as to the
pragmatic approach to be taken with respect to the adequacy of a notice of appeal.”).
This rule applies in South Dakota. See Raven Indus., Inc., 2010 S.D. 49, ¶ 6 n.3,
783 N.W.2d at 847 n.3; Int’l Union, 463 N.W.2d at 844. The circuit court did not
liberally construe the notice of appeal in favor of sufficiency. Had it, the appeal
would have been allowed.
[¶12.] Reversed and remanded to allow Gutnik’s appeal to proceed.
[¶13.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,
MEIERHENRY, and SEVERSON, Justices, participating.
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