RULE 32.2. PRETRIAL DIVERSION
1 (a) Agreements Permitted.
2 (1) Generally. After due consideration of the victim's views and subject to
3 the court's approval, the prosecuting attorney and the defendant may agree that the
4 prosecution will be suspended for a specified period after which it will be
5 dismissed under Rule 32.2(f) on condition that the defendant not commit a felony,
6 misdemeanor or infraction during the period. The agreement must be in writing
7 and signed by the parties. It must state that the defendant waives the right to a
8 speedy trial. It may include stipulations concerning the existence of specified facts
9 or the admissibility into evidence of specified testimony, evidence, or depositions
10 if the suspension of prosecution is terminated and there is a trial on the charge.
11 (2) Additional Conditions. Subject to the court's approval after due
12 consideration of the victim's views and upon a showing of substantial likelihood
13 that a conviction could be obtained and that the benefits to society from
14 rehabilitation outweigh any harm to society from suspending criminal prosecution,
15 the agreement may specify additional conditions to be observed by the defendant
16 during the period, including:
17 (A) that the defendant not engage in specified activities, conduct, and
19 (B) that the defendant participate in, and if appropriate successfully
20 complete, a rehabilitation program, which may include treatment, counseling,
21 training, and education;
22 (C) that the defendant make restitution in a specified manner for harm or
23 loss caused by the crime charged;
24 (D) that the defendant pay specified fees or costs;
25 (E) that the defendant perform specified community service.
26 (3) Limitations on Agreements. The agreement may not specify a period
27 longer or any condition other than could be imposed upon probation after
28 conviction of the crime charged.
29 (b) Filing of Agreement; Release. Promptly after the agreement is made and
30 approved by the court, the prosecuting attorney shall file the agreement together
31 with a statement that under the agreement the prosecution is suspended for a
32 period specified in the statement. Upon the filing, the defendant must be released
33 under Rule 46 from any custody.
34 (c) Modification of Agreement. Subject to Rule 32.2 (a) and (b) and with
35 the court's approval, the parties by mutual consent may modify the terms of the
36 agreement at any time before its termination.
37 (d) Termination of Agreement; Resumption of Prosecution. The court may
38 order the agreement terminated and the prosecution resumed if, upon motion of the
39 prosecuting attorney stating facts supporting the motion and upon hearing, the
40 court finds:
41 (1) the defendant or defense counsel misrepresented material facts affecting
42 the agreement, if the motion is made within six months after the date of the
43 agreement; or
44 (2) the defendant has committed a violation of the agreement, if the motion
45 is made not later than one month after the expiration of the period of suspension
46 specified in the agreement.
47 (e) Emergency Order. The court by warrant may direct any officer
48 authorized by law to bring the defendant before the court for the hearing of the
49 motion if the court finds from affidavit or testimony:
50 (1) there is probable cause to believe the defendant committed a violation of
51 the agreement; and
52 (2) there is a substantial likelihood that the defendant otherwise will not
53 attend the hearing. In any case the court may issue a summons instead of a warrant
54 to secure the appearance of the defendant at the hearing.
55 (f) Termination of Agreement; Dismissal. If no motion by the prosecuting
56 attorney to terminate the agreement is pending, the agreement is terminated and the
57 complaint, indictment, or information must be dismissed by order of the court 60
58 days after expiration of the period of suspension specified by the agreement. If
59 such a motion is then pending, the agreement is terminated and the complaint,
60 indictment, or information must be dismissed by order of the court upon entry of a
61 final order denying the motion. Following a dismissal under Rule 32.2(f) the
62 defendant may not be further prosecuted for the offense involved and may move to
63 have the file sealed under Section 6 of N.D.Sup.Ct.Admin.R. 41.
64 (g) Modification or Termination and Dismissal upon Defendant's Motion.
65 If, upon motion of the defendant and hearing, the court finds that the prosecuting
66 attorney obtained the defendant's consent to the agreement as a result of a material
67 misrepresentation by a person covered by the prosecuting attorney's obligation
68 under Rule 16, the court may:
69 (1) order appropriate modification of the terms resulting from the
70 misrepresentation; or
71 (2) if the court determines that the interests of justice require, order the
72 agreement terminated, dismiss the prosecution, and bar further prosecution for the
73 offense involved.
74 (h) Pre-Charge Diversion. This rule does not preclude the prosecuting
75 attorney and defendant from agreeing to diversion of a case without court approval
76 if charges are not pending before the court.
77 EXPLANATORY NOTE
78 Rule 32.2 was amended, effective March 1, 2013;______________.
79 Rule 32.2 was adopted March 1, 2009.
80 Rule 32.2 is patterned after Minn.R.Crim.P. 27.05.
81 Subdivision (a) was amended, effective March 1, 2013, to include payment
82 of fees or costs as an additional condition to a pretrial diversion agreement.
83 Subdivision (f) was amended, effective_______________, to allow a party
84 who successfully completed an agreement to move to have the file sealed under
85 Section 6 of N.D.Sup.Ct.Admin.R. 41.
86 Sources: Joint Procedure Committee Minutes of ________________;
87 September 30, 2011, pages 19-20; October 11-12, 2007, pages 15-20; April 26-27,
88 2007, pages 23-27.
89 CROSS REFERENCES: N.D. Sup. Ct. Admin. R. 41 (Access to Court