An order deferring imposition of sentence must require that, 61 days after expiration or termination of probation:
(a) the defendant's guilty plea be withdrawn, or the guilty verdict be set aside;
(b) the case be dismissed; and
(c) the file be sealed.
The court may, by order, modify an order deferring imposition of sentence if a petition for revocation is filed no later than 60 days after expiration or termination of probation or if there is an outstanding bench warrant in the matter for which imposition of sentence was deferred.
Rule 32.1 was adopted, effective March 1, 1999. The purpose of the rule is to provide uniformity in the processing of deferred impositions of sentence, and to prevent the disparity of treatment received by defendants depending upon their county of venue in misdemeanor cases.
When deferring imposition of sentence, the judge should advise the defendant if the defendant fulfills the conditions of probation the guilty plea will be withdrawn, or the guilty verdict set aside, the case dismissed, and the file sealed.
An order deferring imposition of sentence is not a judgment. However, for purpose of appeal, an order deferring imposition of sentence is equivalent to a judgment under N.D.R.Crim.P. 32(b).
This rule does not follow Fed.R.Crim.P. 32.1, which deals with revoking or modifying probation or supervised release.
Rule 32.1 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 32.1 was amended, effective August 1, 2021, to clarify that a petition seeking revocation of probation or modification of an order deferring imposition of sentence must be filed no later than 60 days after expiration or termination.
Rule 32.1 was amended, effective March 1, 2019, to delete language that made the rule applicable only in misdemeanor and infraction cases. Under the amendment, the rule applies in all cases in which an order deferring imposition of sentence was entered.
SOURCES: Joint Procedure Committee Minutes of January 28, 2021, pages 6-10; September 26, 2019, pages 19-20; April 27, 2018, pages 6-7; September 23-24, 2010, pages 23-24; January 27-28, 2005, page 29; January 29-30, 1998, pages 14-17; September 25-26, 1997, pages 8-10.
CONSIDERED: N.D.C.C. §§ 12.1-32-02, 12.1-32-07.1, 12.1-32-07.2.
CROSS REFERENCE: N.D.R.Crim.P. Form 8 (Order Deferring Imposition of Sentence).