TO: Joint Procedure Committee
FROM: Andy Forward
DATE: July 6, 2010
RE: Rule 32.1, N.D.R.Crim.P., Deferred Imposition of Sentence
The Supreme Court recently issued an opinion in the case of State v Ebertz, 2010 ND 79, 782 N.W.2d 350, in which an issue arose about the interpretation of N.D.R.Crim.P. 32.1. On November 6, 2007, Ebertz pled guilty to the misdemeanor offense of possession of drug paraphernalia. Id. at ¶ 2. The imposition of the sentence was deferred for one year and Ebertz was placed on probation for one year. Id. The judgment stated the guilty plea would be withdrawn, the case would be dismissed, and the file would be sealed 61 days after probation ends if all the conditions of probation were met. Id.
The State moved to revoke probation on January 8, 2009, alleging Ebertz violated the terms of his probation. Id. at ¶ 3. The district court dismissed the motion, finding the motion was untimely because it was filed more than 61 days after probation expired. Id. at ¶ 4. The court further ordered that the conviction would remain and the file would not be sealed because Ebertz did not meet all the conditions of probation. Id.
The Supreme Court held that under N.D.R.Crim.P. 32.1, a case is automatically dismissed 61 days after a defendant's probation has ended, unless the court has ordered otherwise before that date. Id. at ¶ 12. A district court does not have jurisdiction to order a case not be dismissed after the case has been dismissed under N.D.R.Crim.P. 32.1 and the file sealed. Id. The Court concluded Ebertz's case was automatically dismissed 61 days after his probation expired, and the district court did not have jurisdiction to find Ebertz had not met all of the conditions of his probation and order his conviction would stand and the file would not be sealed. Id. at ¶ 14.
The Court has asked the Committee to discuss Rule 32.1. The issue is whether a district court judge should be allowed to issue an order after the expiration of 61 days if the State has served a petition for revocation before the 61 days have expired. Under Rule 32.1, a judge cannot do so with regard to misdemeanors. However, a judge can do so with regard to felonies. See N.D.C.C. § 12.1-32-07(7). Section 12.1-32-07(7), N.D.C.C., states:
The court may continue or modify probation conditions or revoke probation for a violation of probation conditions occurring before the expiration or termination of the period of probation notwithstanding that the order of the court is imposed after the expiration or termination has occurred. The petition for revocation must be issued within sixty days of the expiration or termination of probation.
The Supreme Court has suggested some form and style amendments to clarify the requirements of the rule. The Committee may wish to further amend the rule, based on the issue discussed above.
The proposed amendments to Rule 32.1 are attached, along with a copy of State v. Ebertz.