#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
-1- 

#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 
#25576 

-2- 

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, 
#25576 

-3- 

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 
#25576 

-4- 

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 
#25576 

-5- 

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.