Gary Ness made his first court appearance on a felony theft charge Tuesday morning.

Ness, the director of the North Dakota Aeronautics Commission, was charged Monday with the Class Cfelony, which carries a maximum penalty of five years in prison and a $5,000 fine.

South Central District Judge Donald Jorgensen left in place a bond order signed Friday by South Central District Judge Robert Wefald, which allowed Ness to be released on his promise to appear and required him to remain within Burleigh and Morton counties.

Burleigh County State's Attorney Richard Riha asked Jorgensen to go through Ness's bond conditions on the record, because no transcript exists of the Friday hearing in front of Wefald.

"There's no record of the hearing," Riha explained after the court appearance. He said not having record of a court hearing is unusual, except in cases of equipment malfunctions.

According to a complaint signed by Bismarck Police Detective Roger Marks, Ness is said to have "knowingly retained or disposed of cash exceeding five hundred dollars in value which he knew had been lost or mislaid."

A woman reported to Bismarck police at 1:39 p.m. Thursday that she had accidentally left a bank envelope containing $1,770 on the counter of Kirkwood Tesoro, 525 S. Third St. When she went back to get the envelope, it was gone.

Police watched a surveillance video from the gas station. After the woman walked away from the counter, a man put a newspaper over the envelope, then walked away with the paper and the envelope. Police identified the man as Ness, who was arrested Friday.

Ness was released after a hearing in front of Wefald Friday after spending about an hour in jail. Ness's attorney, Tom Dickson, requested the hearing. Wefald said he saw no problem in granting the hearing, since he does not consider Ness a flight risk.

Typically people arrested Friday afternoon are not seen by a judge until Monday afternoon. A probable cause hearing, where a judge determines whether there is enough evidence to continue holding someone on a potential charge, usually is held over the weekend.

Hearings such as the one held in front of Wefald on Friday are unusual, Riha said.

"It's not unheard of. It's happened on occasion,"he said.

Usually, appearances in cases are not made until charges have been filed, Riha explained. He said the state's attorney's office had not received information about Ness's case from police Friday afternoon.

Prosecutors brought in a detective to give Wefald probable cause in the case, but the judge did not take the testimony, Riha said.

He would not get into whether he thought Wefald, who has recused himself from the case, violated any ethical standards. He also was not bothered that Wefald released Ness on his recognizance, since that is what he thought would be granted in the case. However, he did seem surprised that normal steps were not taken in the case.

"We have a certain set of procedures we follow, and it wasn't followed in this case. It's disconcerting," Riha said. "Normally, your run-of-the-mill defendant would have spent the weekend in jail."

(Reach reporter Jenny Michael at 250-8225 or jenny.michael@;bismarcktribune.com.)