TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: May 1, 2009
RE: Rule 35, N.D.R.Crim.P., Correcting or Reducing a Sentence
Judge Doug Mattson of Minot has requested that the Committee examine Rule 35's deadline for a court to grant a sentence reduction. Judge Mattson suggests that the deadline disadvantages defendants held in county jails because these defendants, once they miss the 120 deadline for sentence reduction, do not have the option of seeking parole. Judge Mattson's letter is attached.
The Committee reviewed and updated Rule 35 as part of the form and style revision of the Rules of Criminal Procedure. It did not address the 120-day deadline for action on sentence reduction, which is contained in Rule 35(b).
The rule's text and caselaw interpreting it show that 120-day deadline is firm:
"It should be noted that the period is not defined as the time in which the motion may be made, but is rather the time in which the court may act. If a court fails to act upon a motion in the allotted time, this precludes relief." N.D.R.Crim.P. 35 Explanatory Note.
"The plain language of NDRCrimP 35(b), emphasized in its explanatory note, means that the failure of a sentencing court to act within 120 days forecloses its power to reduce a criminal sentence." State v. Hanson, 452 N.W. 2d 329 (N.D. 1990).
Staff has prepared proposed amendments to Rule 35 to address Judge Mattson's concerns. Under the proposed amendment, the trial court would have some additional amount of time to reduce a sentence when the defendant is not in the custody of the Department of Corrections and Rehabilitation. The number of additional days allowed has been left blank in the proposal. If the Committee decides to accept the proposal, it will need to determine the appropriate number of days to allow.