M E M O
TO:Joint Procedure Committee
RE:Section 12.1-32-07.1(2); Deferred Imposition of Sentence
The Committee has a request from Ted Gladden and Judge Hagerty for review of the procedure for processing a deferred imposition of sentence in a misdemeanor case. Clerks of court have expressed concern about the lack of uniformity and the disparity in the treatment received by a defendant depending upon the venue.
Deferred imposition of sentence is provided for by statute. NDCC 12.1-32-02(4). During the period of deferment, the defendant is on probation. Id. A defendant who pleads guilty and fulfills the conditions of probation "may at any time" be permitted in the discretion of the court to withdraw the plea of guilty. N.D.C.C. 12.1-32-07.1(2). In cases where there is a guilty verdict, instead of a plea the statute simply provides: "The court may in its discretion set aside the verdict of guilty."
In either case, the decision whether to allow withdrawal of the guilty plea, or the decision to set aside the verdict, is in the discretion of the judge.
A lack of uniformity exists in processing deferred impositions of sentence because statewide administrative procedures do not exist for implementation of N.D.C.C. 12.1-32-07.1(2). Practices range from proactively contacting the defendant, law enforcement, and the state's attorneys for resolution to a "hands-off" approach, whereby the burden is on the defendant to contact the court for dismissal.