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Effective Date: 3/1/2021

(a) Agreements Permitted.

(1) Generally. After due consideration of the victim's views and subject to the court's approval, the prosecuting attorney and the defendant may agree that the prosecution will be suspended for a specified period after which it will be dismissed under Rule 32.2(f) on condition that the defendant not commit a felony, misdemeanor or infraction during the period. The agreement must be in writing and signed by the parties. It must state that the defendant waives the right to a speedy trial. It may include stipulations concerning the existence of specified facts or the admissibility into evidence of specified testimony, evidence, or depositions if the suspension of prosecution is terminated and there is a trial on the charge.
(2) Additional Conditions. Subject to the court's approval after due consideration of the victim's views and upon a showing of substantial likelihood that a conviction could be obtained and that the benefits to society from rehabilitation outweigh any harm to society from suspending criminal prosecution, the agreement may specify additional conditions to be observed by the defendant during the period, including:

(A) that the defendant not engage in specified activities, conduct, and associations;
(B) that the defendant participate in, and if appropriate successfully complete, a rehabilitation program, which may include treatment, counseling, training, and education;
(C) that the defendant make restitution in a specified manner for harm or loss caused by the crime charged;
(D) that the defendant pay to the court fees or costs allowed by law;
(E) that the defendant pay to others additional amounts as agreed upon by the parties;
(F) that the defendant perform specified community service.
(3) Limitations on Agreements. The agreement may not specify a period longer or any condition other than could be imposed upon probation after conviction of the crime charged.

(b) Filing of Agreement; Release. Promptly after the agreement is made and approved by the court, the prosecuting attorney shall file the agreement together with a statement that under the agreement the prosecution is suspended for a period specified in the statement. Upon the filing, the defendant must be released under Rule 46 from any custody.

(c) Modification of Agreement. Subject to Rule 32.2 (a) and (b) and with the court's approval, the parties by mutual consent may modify the terms of the agreement at any time before its termination.

(d) Termination of Agreement; Resumption of Prosecution.

The court may order the agreement terminated and the prosecution resumed if, upon motion of the prosecuting attorney stating facts supporting the motion and upon hearing, the court finds:

(1) the defendant or defense counsel misrepresented material facts affecting the agreement, if the motion is made within six months after the date of the agreement; or
(2) the defendant has committed a violation of the agreement, if the motion is made not later than one month after the expiration of the period of suspension specified in the agreement.

(e) Emergency Order. The court by warrant may direct any officer authorized by law to bring the defendant before the court for the hearing of the motion if the court finds from a declaration or testimony:

(1) there is probable cause to believe the defendant committed a violation of the agreement; and
(2) there is a substantial likelihood that the defendant otherwise will not attend the hearing. In any case the court may issue a summons instead of a warrant to secure the appearance of the defendant at the hearing.

(f) Termination of Agreement; Dismissal. If no motion by the prosecuting attorney to terminate the agreement is pending, the agreement is terminated and the complaint, indictment, or information must be dismissed by order of the court 60 days after expiration of the period of suspension specified by the agreement. If such a motion is then pending, the agreement is terminated and the complaint, indictment, or information must be dismissed by order of the court upon entry of a final order denying the motion. Following a dismissal under Rule 32.2(f) the defendant may not be further prosecuted for the offense involved.

(g) Modification or Termination and Dismissal upon Defendant's Motion. If, upon motion of the defendant and hearing, the court finds that the prosecuting attorney obtained the defendant's consent to the agreement as a result of a material misrepresentation by a person covered by the prosecuting attorney's obligation under Rule 16, the court may:

(1) order appropriate modification of the terms resulting from the misrepresentation; or
(2) if the court determines that the interests of justice require, order the agreement terminated, dismiss the prosecution, and bar further prosecution for the offense involved.

(h) Pre-Charge Diversion. This rule does not preclude the prosecuting attorney and defendant from agreeing to diversion of a case without court approval if charges are not pending before the court.

Rule 32.2 was adopted March 1, 2009. Amended effective March 1, 2013; March 1, 2019; March 1, 2021.

Rule 32.2 is patterned after Minn.R.Crim.P. 27.05.

Paragraph(a)(2)(D) was amended, effective March 1, 2013, to include payment of fees or costs as a condition to a pretrial diversion agreement. The paragraph was further amended, effective March 1, 2019, to specify that fees or costs allowed under the law are to be paid to the court.

A new paragraph (a)(2)(E) was added, effective March 1, 2019, to allow the parties to agree that the defendant pay additional amounts to others as a condition of a pretrial diversion agreement.

Rule 32.2 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.

Sources: Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; January 25, 2018, pages 8-11; September 30, 2011, pages 19-20; October 11-12, 2007, pages 15-20; April 26-27, 2007, pages 23-27.


CONSIDERED: N.D.C.C. chs. 29-01, 31-15

CROSS REFERENCE: N.D.Sup.Ct.Admin.R. 41 (Access to Court Records).

Effective Date Obsolete Date
03/01/2021 View
03/01/2019 03/01/2021 View
03/01/2013 03/01/2019 View
03/01/2009 03/01/2013 View