N.D.R.Crim.P.RULE 32.2. PRETRIAL DIVERSION (a) Agreements Permitted.
(1) Generally. After due consideration of the victim's views and subject to the court's approval, the prosecuting attorney and the defendant may agree that the prosecution will be suspended for a specified period after which it will be dismissed under Rule 32.2(g) on condition that the defendant not commit a felony, gross misdemeanor, misdemeanor or petty misdemeanor offense during the period. The agreement shall be in writing and signed by the parties. It shall state that the defendant waives the right to a speedy trial. It may include stipulations concerning the existence of specified facts or the admissibility into evidence of specified testimony, evidence, or depositions if the suspension of prosecution is terminated and there is a trial on the charge.
(2) Additional Conditions. Subject to the court's approval after due consideration of the victim's views and upon a showing of substantial likelihood that a conviction could be obtained and that the benefits to society from rehabilitation outweigh any harm to society from suspending criminal prosecution, the agreement may specify one or more of the following additional conditions to be observed by the defendant during the period:
(A) that the defendant not engage in specified activities, conduct, and associations bearing a relationship to the conduct upon which the charge against the defendant is based;
(B) that the defendant participate in a supervised rehabilitation program, which may include treatment, counseling, training, and education;
(C) that the defendant make restitution in a specified manner for harm or loss caused by the crime charged; and
(D) that the defendant perform specified community service.
(3) Limitations on Agreements. The agreement may not specify a period longer or any condition other than could be imposed upon probation after conviction of the crime charged.
(b) Filing of Agreement; Release. Promptly after the agreement is made and approved by the court, the prosecuting attorney shall file the agreement together with a statement that under the agreement the prosecution is suspended for a period specified in the statement. Upon the filing, the defendant shall be released from any custody under Rule 46.
(c) Modification of Agreement. Subject to Rule 32.2 (a) and (b) and with the court's approval, the parties by mutual consent may modify the terms of the agreement at any time before its termination.
(d) Termination of Agreement; Resumption of Prosecution.
(1) Upon Defendant's Notice. The agreement is terminated and the prosecution may resume as if there had been no agreement if the defendant files a notice that the agreement is terminated.
(2) Upon Order of Court. The court may order the agreement terminated and the prosecution resumed if, upon motion of the prosecuting attorney stating facts supporting the motion and upon hearing, the court finds that:
(A) the defendant or defense counsel misrepresented material facts affecting the agreement, if the motion is made within six months after the date of the agreement; or
(B) the defendant has committed a material violation of the agreement, if the motion is made not later than one month after the expiration of the period of suspension specified in the agreement.
(e) Emergency Order. The court by warrant may direct any officer authorized by law to bring the defendant forthwith before the court for the hearing of the motion if the court finds from affidavit or testimony that:
(1) there is probable cause to believe the defendant committed a material violation of the agreement; and
(2) there is a substantial likelihood that the defendant otherwise will not attend the hearing. In any case the court may issue a summons instead of a warrant to secure the appearance of the defendant at the hearing.
(f) Release Status upon Resumption of Prosecution. If prosecution resumes under Rule 32.2(d), the defendant shall return to the release status in effect before the prosecution was suspended unless the court imposes additional or different conditions of release under Rule 46.
(g) Termination of Agreement; Dismissal. If no motion by the prosecuting attorney to terminate the agreement is pending, the agreement is terminated and the complaint, indictment, or tab charge shall be dismissed by order of the court one month after expiration of the period of suspension specified by the agreement. If such a motion is then pending, the agreement is terminated and the complaint, indictment, or tab charge shall be dismissed by order of the court upon entry of a final order denying the motion. Following a dismissal under Rule 32.2(g) the defendant may not be further prosecuted for the offense involved.
(h) Termination and Dismissal upon Showing of Rehabilitation. The court may order the agreement terminated, dismiss the prosecution, and bar further prosecution of the offense involved if, upon motion of a party stating facts supporting the motion and opportunity to be heard, the court finds that the defendant has committed no later offenses as specified in the agreement and appears to be rehabilitated.
(i) Modification or Termination and Dismissal upon Defendant's Motion. If, upon motion of the defendant and hearing, the court finds that the prosecuting attorney obtained the defendant's consent to the agreement as a result of a material misrepresentation by a person covered by the prosecuting attorney's obligation under Rule 16, the court may:
(1) order appropriate modification of the terms resulting from the misrepresentation; or
(2) if the court determines that the interests of justice require, order the agreement terminated, dismiss the prosecution, and bar further prosecution for the offense involved.
Rule 32.2 was adopted___________________.
Rule 32.2 is based on Minn.R.CrimP. 27.05.
Sources: Joint Procedure Committee Minutes of _____________________.