#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 Gu tnik of possession of marijuana, but acquitted him of possession of drug paraph ernalia. Gutnik appealed his conviction to circuit court. He filed a notice of appe al 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 ar e to be construed liberally in favor of sufficiency, we hold that the misidentificatio n 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 presen ce of marijuana. Gutnik was then charged with possession of less than tw o 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 th an 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 hi s 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 senten ce 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 no tice of appeal referred to the attached#25576

-2- judgment, which clearly indicated the conv iction for possession of less than two ounces of marijuana. [¶3.] The State moved to dismiss the a ppeal for lack of jurisdiction. The circuit court determined the notice of appeal “was defective in that it erroneously designated the part of the judgment appeal ed 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 concerni ng 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 requ irements 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 orde r 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 Co urt 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 part y.’” 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 conf irms 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 tw o of the cases, the parties attempted to argue issues in their briefs that were not id entified 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 no tice 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 defi ciency 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 no tice 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 a ppeal. 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 fo r possession of less than two ounces of marijuana. A reasonabl e inference is that Gutnik intended to appeal the only charge of which he was convicted. [¶10.] The second inquiry is whether “th e appellee has not been misled by the

defect.” Id . The State makes no argument it has been misled. [¶11.] When dealing with issues rega rding 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 th e rule that notices of appeal are to be liberally construed in favor of their sufficie ncy so long as the opposing party has not been misled to his or her irreparable harm.” 5 Am.Jur.2d Appellate Review § 294;

s ee also Greensleeves, Inc. v. Smiley , 942 A.2d 284, 291-92 (R.I. 2007) (“Finally, we#25576

-5- note that there is virtual unanimity amon g 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 Just ice, and KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices, participating.