RULE 32. SENTENCE AND JUDGMENT

(a) Sentence.

(1) Imposition of Sentence. Sentence must be imposed or other authorized disposition made without unreasonable delay. Pending Until disposition, the court may commit the defendant or continue or alter the bail or require the defendant to be held without bail. Before imposing sentence, the court shall:

(i)(A) determine that the defendant and the defendant's counsel have had the an opportunity to read and discuss the presentence investigation report made available pursuant to under subdivision (c)(3)(i) (4)(A) or a summary thereof made available pursuant to subdivision (c)(3)(ii);

(ii) (B) afford give counsel an opportunity to speak on behalf of the defendant; and

(iii)(C) address the defendant personally, except as provided by Rule 43, to determine whether the defendant wishes to make a statement in the defendant's own behalf or wishes to present anyinformation in mitigation of punishment or information which would require the court to withhold pronouncement of judgment and sentence.: if the defendant expresses a desire to do so, the court shall provide the defendant with that opportunity.

The prosecution must be given an opportunity to be heard on any matter material to the imposition of sentence.

(2) Notification of Right to Appeal. After imposing sentence in a case that has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal and of the right of a person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal. The court is under no duty to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty.

(b) Judgment. A judgment of conviction must set forthinclude the plea, the verdict, and the adjudication ofsentence imposed. If the defendant is found not guilty or for any reason is entitled to be discharged, judgment must be entered accordingly. The judgment must be signed by the judge and entered by the clerk.

(c) Presentence Investigation.

(1) When Made. The court may order a presentence investigation and report at any time. Except with the written consent of the defendant, the report may not be submitted to the court or its contents disclosed unless the defendant has pleaded guilty or has been found guilty.

(2) Presence of Counsel. On request, the defendant's counsel is entitled to notice and a reasonable opportunity to attend any interview of the defendant by a probation officer in the course of a presentence investigation.

(2) (3) Report.

(A)The report of the presentence investigation may contain any previous criminal record of the defendant and such information about the defendant's characteristics, the defendant's financial condition and the circumstances affecting the defendant's behavior as which may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and any information required by the court.

(B) The following types of information may not be included in a presentence report, but may be submitted to the court as an addendum to the report:

(i) Any diagnostic opinions that, if disclosed might seriously disrupt a program of rehabilitation;

(ii) sources of information obtained upon a promise of confidentiality; or

(iii) any other information that, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons.

(3) (4)Disclosure.

(i) (A) At least 10 days before imposing sentence, unless this minimum period is waived by the defendant, the court shall provide the defendant, and the defendant's counsel if the defendant is so represented, with a copy of the presentence investigation report. The presentence report is open to the public for examination, inspection, and copying. Any addendum to the presentence report is confidential and may not be given to, copied, or read by the parties or the public. The court shall summarize, orally or in writing, the factual information contained in the addendum that will be relied upon in determining sentence. The summary may be given to the parties in camera. of the presentence investigation unless in the opinion of the court the report contains information which if disclosed would be harmful to the defendant or other persons; and the

(B) The court shall afford give the defendant and the defendant's counsel an opportunity to comment on the report and any summarized information., in the discretion of the court, The court may allow the defendant to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.

(ii) If the court is of the view that there is information in the presentence report, disclosure of which would be harmful to the defendant or to other persons, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or the defendant's counsel an opportunity to comment thereon. The statement may be made to the parties in camera.

(iii) (C) Any material that may be disclosed to the defendant and the defendant's counsel must also be disclosed to the prosecuting attorney.

(iv) (D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof any of the information summarized, the court, as to each matter controverted, shall make (i) a finding as to the allegation, or (ii) a determination that no finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of those findings and determinations must be appended to and accompany any copy of the presentence investigation report thereafter later made available to the State Parole Board.

(d) Plea Withdrawal.

(1) The court shall allow the defendant to withdraw a plea of guilty whenever the defendant, upon on a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

(2) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.

(3) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.

(e) Probation. After conviction of an offense, the defendant may be placed on probation as provided by law.

(f) Revocation of Probation Where the Court Retains Jurisdiction Under the Law.

(1) Taking Into Custody. Upon On probable cause to believe that a probationer has violated a condition of probation, any State parole officer, or any peace officer upon direction of directed by a State parole officer or upon direction or by order of the court having jurisdiction may take the probationer into custody and thereafter shall forthwith bring the probationer before the court that originally placed the probationer upon onprobation for a hearing on the alleged violation. Costs incurred in bringing the probationer before the court must be borne by the county wherein in which the probation was granted. The probationer may be admitted to bail pending the hearing.

(2) Hearing. The hearing shall be in open court with:

(i) (A) The probationer present,

(ii) (B) A prior written notice of the alleged violation given to the probationer, and

(iii) (C) Representation by retained or appointed counsel unless waived.

If the violation is contested, the prosecution shall establish the violation by a preponderance of the evidence. Upon After the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order suspending the imposition of sentence, or continue probation on the same or different conditions, as the circumstances warrant. A record of the proceedings must be made in such manner that it can be transcribed as needed.

EXPLANATORY NOTE

Rule 32 was amended, effective January 1, 1980; March 1, 1986; March 1, 1990; March 1, 1992, on an emergency basis; July 14, 1993; .

Rule 32 is similar to FRCrimP 32.

Subdivision (a) deals with sentencing and follows the federal rule with the addition of a provision for bail pending disposition of sentence and the deletion of a provision requiring the clerk of court, if requested by the defendant, to file a notice of appeal on behalf of the defendant.

Subdivision (a)(1), as amended effective March 1, 1986, requires the court to determine that the defendant and the defendant's counsel have had an opportunity to read and discuss the presentence report or summary. This change follows the federal rule as amended in 1983.

Subdivision (b) provides for judgment, and follows the language of the federal rule follows Rule 32(d), Fed.R.Civ.P.; but the words "or findings" are omitted from the first sentence as unnecessary. Section 1-01-41, NDCC, includes in the definition of "verdict," findings of fact by the judge. Subdivision (b) of the federal rule includes a provision for a judgment of criminal forfeiture which authorizes the Attorney General to seize the property subject to forfeiture.

Subdivision (c)(1) makes a presentence investigation and report discretionary with the court and differs from its federal counterpart which makes a presentence report mandatory subject to waiver by the defendant or a specific finding by the court that the record includes sentencing discretion.

Subdivision (c)(2) is similar to its federal counterpart. Although this subdivision does not contain explicit language dealing with information concerning victims of the offense, as the federal rule does, the language is intended to be broad enough to include that information.

Subdivision (c)(3) follows its federal counterpart as amended in 1983 and provides for the disclosure of the presentence report to the defendant and the defendant's counsel a reasonable time before sentencing. This provision permits the defendant and the defendant's counsel to have an opportunity to review the report for any inaccurate, incomplete or misleading information and to point it out to the court and, effective January 1, 1980, at the discretion of the court, introduce testimony or other information.

Subdivision (c)(3)(iv), as amended effective March 1, 1986, follows the 1983 amendment to the federal rule, and requires the sentencing court to make a finding as to any alleged factual inaccuracies in the presentence report or to determine that no finding is necessary because the issue controverted will not be taken into account in sentencing. The rule is intended to insure an accurate presentence report for sentencing purposes and for later custody or parole determinations.

Subdivision (d) is adapted from A.B.A. Standards relating for Criminal Justice, Standards Relating to Pleas of Guilty, 2.1(a), 2.1(a)(i) and 2.1(b). (Approved Draft, 1968).

Subdivision (e) deals with probation. Whenever a sentence for a felony is suspended (Section 12-53-06, NDCC) or is deferred (Section 12-53-13, NDCC) the court shall place the defendant on probation. Section 12-53-04 provides that the court may place the defendant on probation or parole as part of an order suspending a sentence of imprisonment in a county jail upon a conviction for a misdemeanor.

Subdivision (f) has no counterpart in FRCrimP 32; however, FRCrimP 32.1 deals with the same subject in a different way. Subdivision (f) is not intended to include those situations in which the court no longer has jurisdiction over the individual.

Subdivision (f)(1) is adapted from and supersedes NDCC 12-53-15. The subdivision, as amended effective January 1, 1980, clarifies that a probationer may be admitted to bail pending the hearing.

Subdivision (f)(2) is adapted in part from the A.B.A. Standards for Criminal Justice, Standards Relating to Probation, 5.4 at 65 (Approved Draft, 1970).

An appeal from revocation of probation is not precluded under Section 12-53-20, NDCC. See State v. Lesmeister, 288 N.W.2d 57 (N.D. 1980); NDCC 29-28-07(5).

Subdivisions (a), (c), (d) and (f) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.

Subdivision (c) was amended, effective March 1, 1992, to track the federal rule.

Rule 32 was amended, effective , to make an addendum to a presentence report confidential.

SOURCES: Procedure Committee Minutes of ;November 7-8, 1991, page 4; October 25-26, 1990, pages 15-16; April 20, 1989, page 4; December 3, 1987, page 15; November 29, 1984, pages 15-18; April 26, 1984, page 6; December 7 8, 1978, pages 15-23; October 12-13, 1978, pages 10-14; December 11-15, 1972, pages 5-16; November 20-21, 1969, pages 5-6; May 15-16, 1969, pages 1-2; February 20-21, 1969, pages 5-14; FRCrimP, Rule 32; 48 F.R.D. 553, 612 (1970); 52 F.R.D. 409, 454 (1951); Wright, Federal Practice and Procedure: Criminal, 521-550; 8A Moore's Federal Practice, Chapter 32 (Cipes, 2d Ed. 1970); A.B.A. Standards for Criminal Justice, Standards Relating to Pleas of Guilty (Approved Draft, 1968), Standards Relating to Probation (Approved Draft, 1970).

STATUTES AFFECTED:

SUPERSEDED: 12-53-15, 29-14-22, 29-26-01, 29-26-02, 29-26-15, 29-26-19, 33-12-26, 33-12-27, 33-12-29, NDCC.

CONSIDERED: 1-01-41, 12-53-03, 12-53-04, 12-53-05, 12-53-06, 12-53-10, 12-53-11, 12-53-12, 12-53-13, 12-53-14, 12-53-17, 12-53-20, 12-55-30, 29-26-03, 29-26-11, 29-26-12, 29-26-13, 29-26-14, 29-26-16, 29-26-17, 29-26-18, 29-26-20, 29-26-23, 33-12-28, NDCC.