TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 5, 2016
RE: Rule 11, N.D.R.Crim.P., Pleas
The Clerk of the Supreme Court and attorney Tom Dickson have asked the committee to consider rule amendments that would clarify the process of appealing a conditional guilty plea.
Mr. Dickson believes N.D.C.C. 28-27-02 (copy attached) needs to be updated to fix the conditional appeal process. This is the appealability statute and is substantive law, beyond the authority of the committee to amend. Any issues with modernizing it would need to be taken up with the legislature.
Petra Hulm of the clerk's office suggests that Rule 11 could be amended to include more details on what steps attorneys and the court need to take in order to ensure that an appealable order results when a conditional guilty plea is entered. She says at minimum the conditional plea agreement needs to be signed by both the state's attorney and the defense attorney, the court needs to enter an order accepting the plea, and the judgment specifically needs to state it is conditional. She says that all these factors need to be in place to establish that the defendant, the state, and that court all agreed to the conditional plea. Proposed amendments to Rule 11 that would include these steps are attached.
Ms. Hulm says that one problem is that some counties use judgment forms that do not say "conditional" and that all involved need to make sure that the conditional nature of the judgment is stated on the final document.