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State v. Haverluk10/3/2000
admission that the motion had merit, Zejdlik, at 774, we stated:
But, as we explained in Hartman v. Hartman, 466 N.W.2d 155, 156 (N.D. 1991), " lthough a party who fails to respond or make an appearance assumes a substantial risk that the trial court will act favorably on the motion, the moving party has the burden of demonstrating to the trial court's satisfaction that he is entitled to the relief requested." Zejdlik argues that, unlike the movant in Hartman, he presented evidence at the hearing which "showed that was entitled to a favorable decision on the otion." We disagree. Id. at 774; see also City of Jamestown v. Snellman, 1998 ND 200, 6, 586 N.W.2d 494 ("In suppression cases, the defendant has the initial burden of establishing a prima facie case of illegal seizure before the burden of persuasion shifts to the prosecution to justify its actions.") (citing City of Fargo v. Sivertson, 1997 ND 204, 6, 571 N.W.2d 137; State v. Glaesman, 545 N.W.2d 178, 182 n.1 (N.D. 1996)). As a result of its untimely response, the State here assumed the risk of unfavorable action by the district court. Haverluk still had to demonstrate he was entitled to the relief requested. Zejdlik, at 774; N.D.R.Ct. 3.2(b). The district court, however, did not consider the late reply an admission, nor did it abuse its discretion by not considering it an admission.
V.
[ ] Because the district court erred in its application of the law, we reverse the order of the district court and remand for further proceedings.
[ ]Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.
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