M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Procedure for Dismissal after Deferred Imposition Sentence
The procedure for dismissal after deferred imposition of sentence varies greatly among North Dakota's counties. This memo outlines the differences. In the material following are summaries prepared by the clerks of court in which they explain their procedures more specifically.
I. Judgment Entered on Case Filing/Disposition Form Immediately Upon Deferring Imposition of Sentence
- In some counties, a deferred imposition of sentence is cited as a judgment entered on the case filing/disposition form. The case is considered closed, and there is no follow up.
- In some counties, the clerk of court will monitor each case for payment of costs, fines, and fees. In any event, the responsibility and burden are on the defendant to initiate the process for dismissal.
- When deferring imposition of sentence, some judges will advise the defendant of the right to move for dismissal upon successful completion of the probationary period.
- When deferring imposition of sentence, some judges immediately give the defendant a petition to be used for requesting dismissal at the end of the probationary period.
- In some counties, to get forms for requesting a dismissal the defendant has to ask.
II. Deferred Imposition Entered on Case Filing/Disposition Form
- In some counties after deferred imposition of sentence has been entered, the case is listed on the case filing/disposition form as "Deferred Imposition" until whatever date is specified. The case is monitored to the date specified after deferment.
- In some counties, a petition for dismissal is given to the defendant at the time imposition of sentence is deferred. In other counties, a petition for dismissal is given to the defendant after the period of deferment or with the order terminating probation. To obtain a dismissal, the defendant has to sign and return the form.
- In some counties, if there is no response from the defendant, judgment is entered. If a defendant asks to withdraw a guilty plea after judgment is entered, the request is treated as a post-judgment motion.
- In at least one county, the state's attorney is responsible for preparing the appropriate motion after the period of deferment.
- Counties vary as to whether the state's attorney or the clerk of court determines if the defendant had any criminal violations during the probationary period.
- In some counties, the clerk of court reviews the file to ensure the defendant has complied with all the requirements. The clerk of court then prepares the motion to dismiss the order, and delivers it to the state's attorney and judge for their signature.
- In at least one county, the clerk of court prepares the motion and order for dismissal without the state's attorney's signature. The judge's signature is the only signature on the motion and order. Other counties get the approval of the state's attorney before an order of dismissal is filed.
- In some counties, at the end of the deferred period, a criminal and payment check is run. If violations appear, an order to show cause is scheduled for further court appearances. If no condition violations appear, an order to dismiss is prepared by the state's attorney for the court's signature.