TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 11, N.D.R.Crim.P., Pleas
Rule 11 is currently before the Supreme Court as part of the Annual/Criminal Rules Package. The legislature has now added a new provision to N.D.C.C. § 31-13-03 which states: "The court shall order an individual convicted after July 31, 2005, of any felony offense to have a sample of blood or other bodily fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification data bases."
A criminal defendant must be informed of all direct consequences of a guilty plea but need not be informed of possible collateral consequences. Davenport v. State, 2000 ND 218, 620 N.W.2d 164. "It makes sense that direct consequences are those which flow definitely, immediately, and automatically from the guilty plea--the maximum sentence and any fine to be imposed." State v. Abdullahi, 2000 ND 39, 607 N.W.2d 561. The North Dakota Supreme Court has held that deportation, Abdullahi, and having to register as a sex offender, Davenport, are collateral, not direct, consequences of conviction.
Under the statute, the court must order the defendant to submit to DNA sampling when there is a felony conviction. Arguably, because of the need for a court order, submission to DNA sampling may not be automatic and, therefore, not a direct consequence of a guilty plea. On the other hand, because the statute imposes a mandatory duty on the sentencing court to make the order, required sampling could be a direct consequence.
Staff has added new language to the Rule 11 proposal for the Committee to consider at line 40. The new language would require the court to inform defendants of "the court's authority to order restitution and body fluid sampling." The proposed new language was placed in this line because restitution and body fluid sampling are both items the court orders.
Staff also added language to the proposal at lines 262-263 of the Explanatory Note to cross-reference new N.D. Sup. Ct. Admin. R. 52, which allows guilty pleas to be made by interactive television.
The Rule 11 proposal is attached.