RULE 32. SENTENCING AND JUDGMENT
1 (a) Sentence.
2 (1) Time of Sentencing. The court must impose sentence or other authorized
3 disposition without unnecessary delay. Until disposition, the court may continue or
4 alter bail or require the defendant to be held without bail.
5 (2) Presentence Requirements. Before imposing sentence, the court must:
6 (A) determine whether the defendant and the defendant's counsel had an
7 opportunity to read and discuss the presentence investigation report, if made
8 available under Rule 32(c)(4)(B), or a summary made available under Rule
10 (B) give counsel an opportunity to speak on behalf of the defendant; and
11 (C) determine whether the defendant wishes to make a statement on the
12 defendant's own behalf or wishes to present information in mitigation of
13 punishment or information that would require the court to withhold judgment and
15 The court must give the prosecution an opportunity to be heard on any
16 matter material to the imposition of sentence.
17 (3) Notification of Right to Appeal. After imposing sentence in a case that
18 has gone to trial, the court must advise the defendant of the defendant's right to
19 appeal and of the right of a person who is unable to pay the costs of an appeal to
20 apply for appointment of counsel for purposes of appeal. The court is under no
21 duty to advise the defendant of any right of appeal when sentence is imposed
22 following a plea of guilty.
23 (b) Judgment. A judgment of conviction must include the plea, the verdict,
24 and the sentence imposed. If the defendant is found not guilty or for any reason is
25 entitled to be discharged, the court must enter judgment accordingly. The judge
26 must sign and the clerk must enter the judgment.
27 (c) Presentence Investigation.
28 (1) When Made. The court may order a presentence investigation and report
29 at any time. Except when the defendant consents in writing, the report may not be
30 submitted to the court or its contents disclosed unless the defendant has pleaded
31 guilty or has been found guilty.
32 (2) Presence of Counsel. The defendant's counsel is entitled to notice and a
33 reasonable opportunity to attend any interview of the defendant conducted by
34 parole and probation staff in the course of a presentence investigation.
35 (3) Report.
36 (A) Contents of Report. The presentence report may contain the defendant's
37 previous criminal record and information about the defendant's characteristics,
39 (i) family, educational, and social history;
40 (ii) employment history and financial condition;
41 (iii) circumstances affecting the defendant's behavior that may be helpful in
42 imposing sentence or in the correctional treatment of the defendant; and
43 (iv) any information required by the court.
44 (B) Information Excluded from Report. The following types of information
45 may not be included in a presentence report, but may be submitted to the court as
46 an addendum to the report:
47 (i) any diagnostic or prognostic opinion that, if disclosed, might seriously
48 disrupt a program of rehabilitation;
49 (ii) information or sources of information obtained confidentially, but
50 subject to disclosure by the court as provided in Rule 32(c)(4)(A);
51 (iii) any sentence recommendation by parole and probation staff or the
53 (iv) any victim impact statement; or
54 (v) any other information, including medical, psychiatric, or psychological
55 information, information relating to the victim or victims, and other matters the
56 court may consider confidential, that if disclosed, might result in harm, physical or
57 otherwise, to the defendant, to a victim, or to other persons.
58 (4) Disclosure of Presentence Report.
59 (A) Confidentiality. The presentence report and any addendum are
60 confidential. Neither the public nor the parties may read or copy the presentence
61 report or any addendum, unless the court, in its discretion, gives permission.
62 (B) Disclosure to Defendant. If the court allows the defendant to examine any part
63 of the presentence report or any addendum, this disclosure must be made at least
64 14 days before sentence is imposed, unless the defendant waives the 14-day
65 requirement. The court must provide the defendant and the defendant's counsel a
66 copy of the disclosed material and give them an opportunity to comment. The court
67 may allow the defendant and the defendant's counsel to introduce testimony or
68 other information relating to any alleged factual inaccuracy in the disclosed
69 material. Any material disclosed to the defendant and the defendant's counsel must
70 also be disclosed to the prosecuting attorney and, if requested, to the victim.
71 Material from a presentence report and any addendum disclosed under this
72 provision must remain confidential and may not be read or copied by anyone else
73 except as allowed by Rule 32(c) or federal law.
74 (C) Disclosure to Attorney General. The court may disclose the presentence
75 report and any addendum to the Attorney General or the Attorney General's
76 designee only for purposes of the individual risk assessment required by N.D.C.C.
77 § 12.1-32-15 (12) and (13). A presentence report and addendum disclosed to the
78 Attorney General or the Attorney General's designee must remain confidential and
79 may not be read or copied by anyone else except as allowed by Rule 32(c) or
80 federal law.
81 (D) Disclosure to Department of Corrections and Rehabilitation. The
82 presentence report and any addendum is available to the Department of
83 Corrections and Rehabilitation for use in providing assessment and treatment
84 services to the person when in the Department's custody, on parole from the
85 Department, or under the supervision and management of the Department. The
86 Department may share the presentence report and any addendum with a public
87 treatment or transition facility or licensed private treatment or transition facility
88 providing assessment and treatment services to the person when in the
89 Department's custody, on parole from the Department, or under the supervision
90 and management of the Department. The Department may share the presentence
91 report and any addendum with the compact administrator of a supervising state in
92 accordance with the Interstate Compact for Adult Offender Supervision, N.D.C.C.
93 ch. 12-65. A presentence report and any addendum disclosed under this provision
94 must remain confidential and may not be read or copied by anyone else except as
95 allowed by Rule 32(c) or federal law.
96 (E) Harmful Information. If the court finds there is information in the
97 presentence report or any addendum that would be harmful to the defendant or to
98 other persons if disclosed, the court must not permit the public or the parties to
99 read or copy that portion of the report or the addendum. The court must give an
100 oral or written summary of any non-disclosed information it will rely on in
101 determining sentence and must give the defendant or the defendant's counsel an
102 opportunity to comment. The court may give its summary to the parties in camera.
103 (F) Defendant's Comments. If the comments of the defendant and the
104 defendant's counsel, or testimony or other information introduced by them, allege
105 any factual inaccuracy in the presentence report or any addendum, or in any of the
106 information summarized, the court, for each matter controverted, must:
107 (i) make a finding on the allegation, or
108 (ii) make a determination that no finding is necessary because the matter
109 controverted will not be taken into account in sentencing.
110 A written record of the court's findings and determinations must be
111 appended to and accompany any copy of the presentence report later made
112 available to the parole board or the pardon clerk.
113 (d) [Transferred]
114 (e) Probation. After conviction of an offense, the defendant may be placed
115 on probation as provided by law.
116 (f) Revocation of Probation When Court Retains Jurisdiction Under Law.
117 (1) Taking into Custody. If there is probable cause to believe a probationer
118 has violated a condition of probation, the court that originally placed the
119 probationer on probation may conduct a hearing on the alleged violation. Any state
120 parole and probation officer or any peace officer directed by a state parole and
121 probation officer or directed by an order of the court having jurisdiction may take
122 the probationer into custody and bring the probationer before the court. Costs
123 incurred in bringing the probationer before the court must be borne by the county
124 in which the probation was granted. The probationer may be admitted to bail
125 pending the hearing.
126 (2) Transfer. If the probationer does not contest the violation, the hearing
127 may be transferred, under the procedure set out in Rule 20, to the county where the
128 probationer is arrested, held or present. This procedure is available only upon the
129 consent of the court that placed the probationer on probation.
130 (3) Hearing.
131 (A) In General. The hearing must be in open court with:
132 (i) the probationer present;
133 (ii) a prior written notice of the alleged violation given to the probationer;
135 (iii) representation by retained or appointed counsel unless waived.
136 The probationer must be given an opportunity to make a statement and
137 present evidence in mitigation.
138 (B) Resolution. If the probationer contests the violation, the prosecution
139 must establish the violation by a preponderance of the evidence. After the hearing
140 and subject to limitations imposed by law, the court may:
141 (i) revoke an order suspending a sentence or an order suspending the
142 imposition of sentence; or
143 (ii) continue probation on the same or different conditions.
144 A record of the proceedings must be made.
145 EXPLANATORY NOTE
146 Rule 32 was amended, effective January 1, 1980; March 1, 1986; March 1, 1990;
147 March 1, 1992, on an emergency basis; July 14, 1993; March 1, 1999; October 31,
148 2001, on an emergency basis; April 1, 2002; March 1, 2006; March 1, 2007;
149 March 1, 2008; March 1, 2010; March 1, 2011;_____________________.
150 Rule 32 was amended, effective March 1, 2006, in response to the
151 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
152 language and organization of the rule were changed to make the rule more easily
153 understood and to make style and terminology consistent throughout the rules.
154 Paragraph (c)(4) was amended, effective March 1, 1999, to allow the court
155 to decide, in its discretion, whether a presentence investigation report and any
156 addendum may be inspected by the public or the parties.
157 Parole and probation staff conducting a presentence investigation must be
158 mindful that they cannot make a binding promise of complete confidentiality
159 regarding information included in the addendum to a presentence report. Under
160 paragraph (c)(4), the promise of confidentiality is subject to the court's discretion
161 to allow the parties to inspect the addendum.
162 Paragraph (c)(4) was amended, effective October 31, 2001, to allow
163 disclosure of the presentence report and any addendum to the Attorney General or
164 the Attorney General's designee to enable the Attorney General to comply with
165 subsections 12 and 13 of N.D.C.C. § 12.1-32-15. Disclosure to the Attorney
166 General or the Attorney General's designee must comply with all applicable state
167 and federal statutes, rules and regulations governing drug and alcohol records, and
168 private medical information.
169 Paragraph (c)(4) was amended, effective March 1, 2008, to allow disclosure
170 of the presentence report and any addendum to the Department of Corrections and
171 Rehabilitation or its designees so that the Department can obtain assessment and
172 treatment services. Disclosure to the Department or its designees must comply with
173 all applicable state and federal statutes, rules and regulations governing drug and
174 alcohol records, and private medical information.
175 Subparagraph (c)(4)(B) was amended, effective March 1, 2011, to change
176 the time to disclose a presentence report from 10 to 14 days before sentence is
178 Subparagraph (c)(4)(B) was amended, effective_______________, to allow
179 disclosure to the victim, on request, of any material disclosed to the defendant and
180 the defendant's counsel. "Victim" is defined in N.D. Const. Art. I, § 25(4).
181 Subdivision (d) on withdrawal of guilty pleas was transferred to Rule 11
182 effective March 1, 2010.
183 Paragraph (f)(2) was added, effective March 1, 2006, to allow transfer of a
184 revocation hearing to the county where the probationer is present. Rule 20
185 (Transfer from the County for Plea and Sentence) sets out the procedure for
186 obtaining a transfer.
187 Paragraph (f)(3) is adapted in part from the A.B.A. Standards for Criminal
188 Justice, Standards Relating to Probation, § 5.4 at 65 (Approved Draft, 1970).
189 Paragraph (f)(3) was amended, effective, March 1, 2007, to clarify that a
190 probationer must be given the opportunity to make a statement and present
191 mitigating information at a revocation hearing.
192 SOURCES: Joint Procedure Committee Minutes of ________________;
193 April 29-30, 2010, page 20; January 29-30, 2009, pages 11-13, 19-20; January 24,
194 2008; January 26, 2006, page 9; April 28-29, 2005, pages 3-5; January 27-28,
195 2005, pages 28-29; January 24-25, 2002, pages 9-14; January 29-30, 1998, pages
196 10-11; September 25-26, 1997, pages 3-6; January 30, 1997, pages 2-6; September
197 26-27, 1996, pages 6-8; April 25, 1996, pages 16-18; November 7-8, 1991, page 4;
198 October 25-26, 1990, pages 15-16; April 20, 1989, page 4; December 3, 1987,
199 page 15; November 29, 1984, pages 15-18; April 26, 1984, page 6; December 7-8,
200 1978, pages 15-23; October 12-13, 1978, pages 10-14; December 11-15, 1972,
201 pages 5-16; November 20-21, 1969, pages 5-6; May 15-16, 1969, pages 1-2;
202 February 20-21, 1969, pages 5-14; Fed.R.Crim.P. 32.
203 STATUTES AFFECTED:
204 SUPERSEDED: N.D.C.C. §§ 12-53-15, 29-14-22, 29-26-01, 29-26-02,
205 29-26-15, 29-26-19, 33-12-26, 33-12-27, 33-12-29.
206 CONSIDERED: N.D. Const. Art. I, § 25; N.D.C.C. §§ 1-01-41, 12-53-03,
207 12-53-04, 12-53-05, 12-53-06, 12-53-10, 12-53-11, 12-53-12, 12-53-13, 12-53-14,
208 12-53-17, 12-53-20, 12-55-30, 29-26-03, 29-26-11, 29-26-12, 29-26-13, 29-26-14,
209 29-26-16, 29-26-17, 29-26-18, 29-26-20, 29-26-23, 33-12-28.
210 CROSS REFERENCE: N.D.R.Crim.P. 20 (Transfer from the County for
211 Plea and Sentence); N.D.C.C. § 12.1-32-15.