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2005-373 STATE OF NH v. JONATHAN M. POLK
conviction. The defendant argued that this court has jurisdiction because the
over a direct appeal from the district court of a class A misdemeanor
argument, however, an issue arose concerning whether we have jurisdiction should have dismissed the charge because the complaint was defective. At oral
(
The defendant’s principal argument on appeal is that the trial court
Sup. Ct. R. 12-D(2). We dismiss the appeal. before a 3JX panel, the case was submitted to the full court for decision. See defendant appealed the conviction to this court. Following oral argument a police officer, a class A misdemeanor. See RSA 265:4, I(c), III(a) (2004). The Champagne, J.), the defendant, Jonathan M. Polk, was convicted of disobeying DUGGAN, J. Following a bench trial in Manchester District Court
Robert J. Moses, of Amherst, by brief and orally, for the defendant.
general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Stephen G. LaBonte, assistant attorney
Opinion Issued: August 4, 2006 Argued: June 14, 2006
JONATHAN M. POLK
page is: http://www.courts.state.nh.us/supreme. v.
THE STATE OF NEW HAMPSHIRE
editorial errors in order that corrections may be made before the opinion goes No. 2005-373 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Manchester District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 2
court directly to this court. We disagree. court because it does not specify which cases can be appealed from the district time the defendant filed his appeal. contends that the amended rule allows a defendant to bypass the superior
acceptance of most appeals mandatory. Nothing in the amended rule, however, be directly appealed to this court. imposed). The amended rule, Sup. Ct. R. 3, changed our practice by making automatic review of capital murder convictions where death penalty is appeal. See Sup. Ct. R. 7 ( 2003). But see RSA 630:5, X (1996) (providing for Prior to January 1, 2004, this court could decline to accept almost any
designated regional jury trial court pursuant to RSA 50 2-A:12-a (1997). In shall hear the appeal” except in cases where the person was convicted by a appealed from the district court to the superior court, had not changed at the amendments to Supreme Court Rule 3 that provide for mandatory appeals. He The defendant argues that Homo has been modified by the recent
Thus, the defendant’s class A misdemeanor conviction in district court cannot 599:1 must still first appeal to the superior court. only when a person is” convicted of a class B misdemeanor. Homo, 13 2 N.H. at 517. remains good law so that a person convicted of a crime designated in RSA the appeal was filed.”). Given the lack of a significant statutory change, Homo defendant’s right to appellate review is governed by the statute in effect when
See Homo, 13 2 N.H. at 517 (“The
the sentence is declared, may appeal therefrom to the superior court, which language, providing that the convictions designated in RSA 599:1 “may” be Compare RSA 599:1 (1986) with RSA 599:1 ( 2001). However, the relevant Since Homo, the language of RSA 599:1 has undergone revision.
517.
Homo, 13 2 N.H. at
appealed to superior court; “[a] direct appeal to this court . . . is authorized district court convictions for the crimes designated in RSA 599:1 first be State v. Homo, 13 2 N.H. 514, 517 (1989), we held that RSA 599:1 requires that the proceedings because it cannot be conferred where it does not already exist.”
convicted by a district or municipal court of a class A misdemeanor, at the time RSA 599:1 ( 2001) (amended 2006) provides in pertinent part: “A person
71 N.H. 293, 293 (1902). (2005), and even if they are not raised by the parties, see Burgess v. Burgess, the first time on appeal, Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005). Thus, we may address jurisdictional issues even if they are raised for Harley-Davidson Motor Co. v. Seacoast Harley-Davidson, 152 N.H. 387, 389
“[T]he issue of subject matter jurisdiction may be raised at any time in
directly.” “mandatory appeal rule does not differentiate what cases can be appealed here 3
appeal.
holding in
BRODERICK, C.J.
, and DALIANIS, GALWAY and HICKS, JJ., concurred.
Appeal dismissed.
standards). Accordingly, we conclude that we lack jurisdiction over this doctrine of stare decisis while noting legislature’s ability to alter governing
Homo. See State v. Gubitosi, 152 N.H. 67 3, 678 (2005) (applying
502-A:12, II). Until that statute takes effect, however, we continue to follow our appeal therefrom to the supreme court. See Laws 2006, 64:1 (amending RSA misdemeanor may, if no appeal for a jury trial in superior court is taken, Effective January 1, 2007, a person sentenced by a district court for a class A Finally, we note that the legislature has recently addressed this issue.
in district court to superior court. the requirement that a defendant appeal convictions of class A misdemeanors suggest that the mandatory appeal rule amendments were intended to override suggests that we altered the holding in Homo. Additionally, there is nothing to