(Alternative 4, N.D.R.Crim.P.)
RULE 32. SENTENCE AND JUDGMENT
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(f) Revocation of Probation Where the Court Retains Jurisdiction Under the Law.
(1) Taking Into Custody. On probable cause to believe a probationer has violated a condition of probation, any State parole and probation officer, or any peace officer directed by a State parole and probation officer or directed by an order of the court having jurisdiction may take the probationer into custody and bring the probationer before the court that originally placed the probationer on probation for a hearing on the alleged violation. Costs incurred in bringing the probationer before the court must be borne by the county in which the probation was granted. The probationer may be admitted to bail pending the hearing.
(2) Hearing. The hearing must be in open court with:
(A) the probationer present,
(B) a prior written notice of the alleged violation given to the probationer, and
(C) representation by retained or appointed counsel unless waived.
If the violation is contested, the prosecution shall establish the violation by a preponderance of the evidence. After the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order suspending the imposition of sentence, or continue probation on the same or different conditions, as the circumstances warrant. A record of the proceedings must be made.
(g) Amendment or Enforcement of a Condition by a Different Judge. If a defendant violates a condition in a judgment or order entered upon a verdict or plea of guilty to a misdemeanor, any judge from within the judicial district where the judgment or order was entered may amend or enforce a condition in the judgment or order.
Rule 32 was amended, effective January 1, 1980; March 1, 1986; March 1, 1990; March 1, 1992, on an emergency basis; July 14, 1993; March 1, 1999; _____________________.
Rule 32 was amended, effective March 1, 1999, 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.
Subdivision (b) 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 (d) is adapted from A.B.A. Standards for Criminal Justice, Standards Relating to Pleas of Guilty, §§ 2.1(a), 2.1(a)(i) and 2.1(b). (Approved Draft, 1968).
Subdivision (f)(1) is adapted from and supersedes NDCC § 12-53-15.
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).
Subdivision (g) was adopted, effective _____________, to allow a judge to consolidate proceedings venued in the same county when a misdemeanant violates the conditions of more than one judgment or order even if the other judgment or order was entered by a different judge.
SOURCES: Procedure Committee Minutes of _______________________; January 29-30, 1998, pages 10-11; September 25-26, 1997, pages 3-6; January 30, 1997, pages 2-6; September 26-27, 1996, pages 6-8; April 25, 1996, pages 16-18; 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.
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.