concurring in part and dissenting in part.
[¶ 44] I concur with that part of the Majority Opinion concluding the State cannot appeal from the order of dismissal. Majority Opinion at ¶ 12. I respectfully dissent from the decision to exercise this Court’s supervisory jurisdiction and from the resulting remainder of the decision ruling on the merits of the State’s attempted appeal.
[¶ 45] Section 29-28-07, N.D.C.C., specifies the orders from which the State may appeal. “In a criminal action, the State has only such right of appeal as is expressly conferred by statute.” State v. Flohr, 259 N.W.2d 293, 295 (N.D.1977); Majority Opinion at ¶ 6. Without a proper appeal under the statute, this Court has no appellate jurisdiction to decide the matter. State v. Gohl, 477 N.W.2d 205, 207 (N.D.1991) (“The right of appeal is governed solely by statute in this state. Without any statutory basis to hear an appeal, this Court must take notice of the lack of jurisdiction and dismiss the appeal.”) (internal citation omitted). Therefore, absent exercise of this Court’s original jurisdiction to supervise, the appeal must be dismissed.
[¶ 46] We have consistently held that “[i]ssuance of writs under our supervisory jurisdiction is entirely discretionary with this court, and will be done rarely and with caution. Such jurisdiction will only be invoked to rectify errors and prevent injustice when no adequate alternative remedies exist.” Polum v. North Dakota Dist. Court, Stark County, Southwest Judicial Dist., 450 N.W.2d 761, 762-763 (N.D.1990) (citations omitted).
[¶47] The State only argued that it brought a proper appeal. The State did not ask this Court to exercise supervisory jurisdiction in this case, even when given that opportunity during oral argument. We therefore have not had briefing or argument regarding why this is the rare case in which we should exercise this Court’s original jurisdiction. Nor have we had briefing or argument regarding why this case presents an injustice or error requiring us to set aside caution and to extend our judicial hand where that hand could not otherwise reach.
[¶ 48] The lack of briefing, argument or even a request for supervision aside, this is not a case that cries out for our intervention. The issue for which the State sought review is isolated to this case, involves the misapplication of a procedural rule and is not likely to arise again. There is no overall insult to the criminal justice system. I therefore do not agree this is a proper case for the exercise of this Court’s supervisory authority. I would dismiss the appeal and end our review with that act.
[¶ 49] Daniel J. Crothers