#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
#25576

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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