RULE 32. SENTENCE AND JUDGMENT
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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 was amended, effective to address whether a presentence investigation report and any addendum may be inspected by the public or the parties.
When conducting a presentence investigation, parole and probation staff must be mindful they cannot make a binding promise of complete confidentiality as to information included in the addendum to a presentence report. The promise of confidentiality is subject to the court's discretion to allow the parties to inspect the addendum.
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.
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.
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).
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.