TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 32, N.D.R.Crim.P., Sentencing and Judgment
Fed.R.Crim.P. 32.1 on Revoking or Modifying Probation was modified effective Dec. 1, 2005, to include language requiring that a probationer get an opportunity to make a statement and present mitigating evidence at a revocation proceeding. There previously was no explicit statement of this requirement in the rule.
In State v. Ennis, 464 N.W.2d 378 (N.D. 1990), the North Dakota Supreme Court referred to Black v. Romano, 471 U.S. 606 (1985) for a list of the Constitutional procedural requirements for probation revocation proceedings. Among the requirements on the Black list were "an opportunity to be heard in person and to present witnesses and documentary evidence."
Because the new Fed.R.Crim.P. 32.1 language seems consistent with the probation revocation proceeding requirements listed in Ennis, staff has prepared a proposed amendment to N.D.R.Crim.P. 32 incorporating the federal language. The Rule 32 proposal is attached.