State v. Simmons , 2014 ND 96 ( 2014 )

Filed 5/9/14 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2014 ND 96

State of North Dakota, Plaintiff and Appellee

v.

Daimeon Ernest Simmons, Defendant and Appellant

No. 20130356

Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Richard L. Hagar, Judge.

AFFIRMED.

Per Curiam.

Daniel A. Gulya, Assistant State’s Attorney, Ward County State’s Attorney’s Office, P.O. Box 5005, Minot, N.D. 58702-5005, for plaintiff and appellee; submitted on brief.

Thomas J. Gunderson, North Dakota Public Defenders’ Office, 11 First Avenue SW, Minot, N.D. 58701, for defendant and appellant; submitted on brief.

State v. Simmons

No. 20130356

Per Curiam.

[¶1] Daimeon Simmons appeals from a district court order revoking his probation, arguing the revocation of his probation violated the double jeopardy clause of the United States Constitution.  We summarily affirm under N.D.R.App.P. 35.1(a)(7), concluding probation revocation is not a stage of the criminal prosecution entitling an individual to double jeopardy relief.   See State v. Wetzel , 2011 ND 218, ¶ 8, 806 N.W.2d 193 (“[P]robation revocation is not a stage of the criminal prosecution; rather, it is a continuation of the original prosecution to determine whether the defendant violated a condition of his existing probation and not to convict and punish the defendant for a new criminal offense.”).

[¶2] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Lisa Fair McEvers

H. Patrick Weir, S.J.

[¶3] The Honorable H. Patrick Weir, Surrogate Judge, sitting in place of Kapsner, J., disqualified.