RULE 32.1. MANAGEMENT OF DEFERRED IMPOSITION OF SENTENCE
When imposition of sentence is deferred and unsupervised probation ordered, the clerk of court may not enter judgment until 61 days after expiration or termination of probation. Upon fulfilling the conditions of probation, the burden is upon the defendant to move the court for its order withdrawing the defendant's plea of guilty, or setting aside the verdict of guilty, and dismissing the case. The motion for dismissal must be accompanied by an affidavit of the defendant in support of the motion. Upon request of the defendant, the clerk of court shall give the defendant forms for moving for dismissal. If the defendant moves for dismissal, the clerk of court shall serve upon the appropriate state's attorney a copy of the notice of motion, the motion, and the affidavit in support of the motion.
Rule 32.1 was adopted, effective _________________. The purpose of the rule is to provide uniformity in the processing of deferred impositions of sentence, and to prevent the disparity of treatment received by defendants depending upon their county of venue in misdemeanor cases.
When deferring imposition of sentence, the judge should advise the defendant if the defendant fulfills the conditions of probation the guilty plea may be withdrawn or the guilty verdict set aside, the case dismissed, and the file sealed. See Sections 12.1-32-07.1 and 12.1-32-07.2, N.D.C.C. The judge should also advise the defendant a failure to submit a motion for dismissal will result in a public record reflecting a judgment of conviction, and the defendant is responsible for asking for dismissal. Finally, the judge should give the defendant the forms for moving for dismissal, and advise the defendant extra forms are available from the clerk of court. See Appendix Form 18.
Judgment may not be entered for 61 days after expiration or termination of probation in order to allow 60 days for a petition for revocation of probation to be issued. See Section 12.1-32-07(7), N.D.C.C.
It is the intent of the Committee the affidavit in support of the motion shall suffice as a brief under Rule 3.2, NDROC, as the requirement for a brief is to be liberally construed. See Explanatory Note, Rule 3.2, NDROC.
SOURCES: Procedure Committee Minutes of ______________________.