Joint Procedure Committee Meeting

Scheduled on Monday, December 11, 1972 @ 1:20 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council

and the State Bar Association

for the Adoption of Rules of Criminal Procedure

December 11-15, 1972

Monday, December 11

Call to order by Judge Erickstad, Chairman, at 1:20 p.m.

ATTENDANCE

Members Present:

Hon. Ralph J. Erickstad, Chairman
Hon. Norbert J. Muggli
Hon. William S. Murray
Hon. Harry J. Pearce
Mr. Roger Persinger
Mr. Paul M. Sand
Mr. John G. Shaft

Members Absent:

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. John A. Graham
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. Kirk Smith
Mr. Robert L. Vogel

Staff Present:

Mr. Charles M. Travis, Criminal Code Reviser
Mr. John E. Jacobson, Assistant Code Reviser
Miss Donna Fischer, Secretary

MINUTES OF PREVIOUS MEETING

Minutes of the Meeting of October 17-20, 1972 were approved without review. Judge Erickstad noted that since no member had read the minutes, this procedure of approval would be used.

ADMINISTRATIVE REMARKS

Mr. Travis referred to the handouts: synopsis of meeting with Mr. Lauren Arn, Deputy Project Director for Implementation of ABA Standards, concerning ABA Comparative analysis to be undertaken by Professor Larry Kraft of the U.N.D. Law School, agenda with attached correction sheet for Rule 32, and ABA Comparative Analysis for Rule 32. Mr. Travis discussed the Comparative Analysis at length.

Judge Murray and Mr. Sand, who were present at the meeting with Mr. Arn, had no additional comments and felt the synopsis of the meeting was self- explanatory. It follows.

November 6. 1972, 11:00 a.m.

Supreme Court Conference Room -- Bismarck

Guest:

Mr. Lauren Arn, Deputy Project Director of Implementation, Section of Criminal Law, American Bar Association

Present:

Chief Justice Strutz and Associate Justices Erickstad, Knudson, Paulson and Teigen
Charles Travis, Criminal Code Reviser
John Jacobson, Assistant Code Reviser
Calvin Rolfson, Court Administrator
Robert Holte, Staff Attorney, N.D. Combined Law Enforcement Council
Criminal Rules Committee Members: Mr. John A. Graham, Judge Gerald Glaser, Judge William Murray, Mr. Paul Sand, Mr. Robert Vogel

Mr. Arn emphasized the importance of Implementing a comparative analysis of the state's Rules of Criminal Procedure and substantive criminal law with the ABA Standards for Criminal Justice. He explained that there were now 16 approved Standards, with the 17th -- the urban Police Function -- yet to be considered. He further pointed out that implementation of the Standards has begun in approximately forty states and that the comparative analysis has been made either wholly or partially in 14 of the states.

Mr. Arn pointed out that the best way to implement the Standards is through a code revision. A process of educating the bench and the bar of the state on the Standards and new Criminal Rules and Substantive Criminal Code is best accomplished by conference called by the Chief

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Justice of the Supreme Court, or, on the other hand, has been effectively handled by the judicial council. He said that the Section on Criminal Law of the A.B.A. has made available $3,000 "seed money" to start a comparative analysis. [He left a brochure entitled "Implementation", which explains how-to-do-it in four steps.]

Mr. Arn explained that he had conferred with Professor Larry Kraft of the University of North Dakota, School of Law, and that Professor Kraft had indicated his interest in going forward with such a study. He said that Mr. Kraft had indicated that funding would be forthcoming around January 1973 and that work could begin in earnest in mid-May; and with work nearing completion on the Criminal Rules, it was just a matter of timing.

Mr. Arn indicated that the A.B.A. would be able to provide assistance for a conference, should the state wish to have one, in the form of lecturers and complimentary sets of the Standards (valued at $16/set). Insofar as funding of the conference, application can be made to the LEAA separately or in conjunction with the Comparative Analysis. A major expense involved in the project is that of printing (which may cost from $2-$5/copy and require from 1,000-2,000 copies).

A consensus of some members of the Rules Committee was that the Committee had considered the Standards in their consideration of the Rules and that there was substantial compliance. They also felt that a comparative analysis of the Rules or the substantive law before submission to the court and legislature respectively would be futile and that the merit would lie in the study being conducted afterward.

It was suggested that some communication be established with Professor Kraft to coordinate the study with a completion of the Criminal Rules and presentation of the substantive Criminal Code to the legislature, and to work toward an educational conference for the benefit of the state bench and bar.

Mr. Travis explained that the comparison would be undertaken, ultimately, to serve as an educational tool to school the bench and bar to the proposed Criminal Code and Rules of Criminal Procedure. Chairman Erickstad explained that the study by the Law School will be a report to the Law Enforcement Council. He added that the study will be an aid to the practicing Bar, pointing out differences of practice.

In discussion, Mr. Sand commented that he felt the study should be done as soon as possible, noting that the benefit of such an undertaking after completion of the Rules would be minimal.

SPECIAL REPORT

Judge Pearce was called upon to discuss the work of his subcommittee which has undertaken to develop proposed legislation with respect to jury trials. Judge Pearce referred to correspondence directed for Committee attention with his suggested legislative amendments. He noted that jury trials in municipal courts for violations of municipal ordinances may be characterized as unwieldy. It was his opinion that jury trials in municipal courts for petty offenses result in a burdening expense to the state, county and city when such right is exercised for minor infractions (such as speeding). He noted with particularity that such is the case with respect to a law which permits a trial de novo to an appellate court from a lower court and entitles the appellant to a second jury trial. He noted that the federal procedure provides no right to trial by jury for petty offenses. He added that there was no constitutional requirement for a jury trial at the municipal court level.

Judge Erickstad noted that originally the sentiment of the Committee regarding the subject of jury trials had been six-to-two in favor of abolishing the jury trial right in cases involving petty offenses. Judge Erickstad called upon members of the Committee to express sentiment contrary to that previously expressed before taking up Judge Pearce's proposals.

Judge Murray noted for the record that there is no basis for a right to jury trial in all cases under the common law.

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John Shaft said that in discussing the proposal at hand with the attorneys in the Grand Forks area, that they were displeased with such proposal and recommended that better procedure would be to restrict the number of jurors if the question is one involving monetary expenditures.

Judge Erickstad suggested that since there was no motion to reopen the question previously determined by the Committee with respect to right to jury trial, that the Committee would proceed to consider Judge Pearce's submitted proposal.

Judge Pearce suggested that the Committee keep in mind, when considering this proposal, that the right to trial by jury as provided by the Constitution is a right as it existed at common law at the time that Constitutional provision was adopted, and that such position has been upheld by numerous Supreme Court decisions.

Judge Pearce read the proposed statutes 27-08-40 and 27-08-41 as follows;

Section 27-08-40, NDCC

Existing statute:

In all criminal actions in a county court having increased jurisdiction, the defendant shall be entitled to a trial by jury, and when the defendant is arraigned he shall be informed by the court of his right thereto. If he waives his right to a jury trial, an entry to that effect shall be made on the court minutes.

Proposed statute:

A defendant shall be entitled to a trial by jury in all criminal cases in a county court of increased jurisdiction for which the punishment for conviction may exceed 30 days imprisonment or a fine of more than $500.00 unless the defendant waives a jury trial in writing or in open court with the approval of the court and the consent of the prosecuting attorney. If the defendant waives his right to a jury trial, an entry to that effect shall be made on the court minutes.

Section 27-08-41, NDCC

Existing statute:

If a defendant in a criminal action in a county court having increased jurisdiction waives a trial by jury, he may be tried in term time by the court without a jury upon the giving of notice to the state's attorney of the county.

Proposed statute:

If a defendant in a criminal action in a county court of increased jurisdiction is not entitled to a trial by jury or waives a trial by jury, he may be tried in term time by the court without a jury upon the giving of notice to the state's attorney of the county.

Judge Pearce MOVED approval of the proposed Section 27-08-40. Judge Muggli seconded.

In discussion, Mr. Sand questioned the procedure the Committee would take for passage through the legislature. Judge Pearce questioned the possibility of having the legislature aid in preparation of such a bill. Chairman Erickson advised him. Judge Pearce stated that he was reluctant to present such proposal as one municipal judge, not in an official capacity. Judge Erickstad assured Judge Pearce that he would have the Rules Committee support and could speak as representative of this Committee. Mr. Sand noted that if the Committee accepts the proposal without reservation, that it would provide the best evidence of the Criminal Rules Committee's support and approval.

The Committee proceeded with consideration of the proposal. Motion to approve Section 27-08-40 CARRIED unanimously (noting Mr. Shaft's dissenting comments).

Mr. Sand suggested that Section 27-08-41 read "...be tried by the court without a jury...", striking the words "in term time". Judge Pearce had no objection to that change. Judge Pearce MOVED approval of Section 27-08-41 with deletion of the language "in term time". Mr. Sand seconded. Motion CARRIED.

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Judge Pearce presented Section 29-16-02 as follows.

Section 29-16-02, NDCC

Existing statute:

In any case, whether a misdemeanor or felony, a trial jury may be waived by the consent of the defendant and the state's attorney expressed in open court and entered on the minutes of the court. Otherwise, the issues of fact must be tried by the jury.

Proposed statute:

In any case, whether a misdemeanor or felony, a trial by jury may be waived by the consent of the defendant and the state's attorney expressed in open court and entered on the minutes of the court. Issues of fact shall be tried by the jury unless the defendant waives a trial by jury or is not entitled to a trial by jury in which cases issues of fact shall be tried by the court.

Judge Pearce MOVED adoption of proposed Section 29-16-02. Second by Judge Murray. Motion CARRIED without objection.

Judge Pearce read Section 33-12-19, re justice court, as follows.

Section 33-12-19, NDCC

Existing statute:

When the defendant in a criminal action in a justice court makes any plea other than a plea of guilty, the issue shall be tried by the court unless a jury is demanded, but if either party demands a jury before the court hears any testimony, the issue must be tried by a jury of twelve persons.

Proposed statute:

A defendant shall be entitled to a trial by jury in all criminal cases in a justice court for which the punishment for conviction may exceed 30 days imprisonment or a fine of more than $500.00 unless the defendant waives a jury trial in writing or in open court with the approval of the court and the consent of the prosecuting attorney. If the defendant waives his right to a jury trial, an entry to that effect shall be made on the court minutes.

Judge Pearce noted that Section 33-12-19 is parallel to Section 27-08-40 and MOVED its adoption. Second by Mr. Sand. Motion CARRIED without objection.

Section 40-18-15 was presented as follows.

Section 40-18-15, NDCC

Existing statute:

An action for the violation of a city ordinance shall be tried and determined by the municipal judge, without the intervention of a jury except as is provided in this section. If the defendant is charged with the violation of an ordinance of the city under the provisions of which imprisonment for more than ten days or a fine or more than twenty dollars is made a part of the penalty, such defendant, before the commencement of the trial, may demand a trial by jury.

Proposed statute:

An action for the violation of a city ordinance shall be tried and determined by the municipal judge. There shall be no right to trial by jury in an action for the violation of a city ordinance.

Judge Pearce MOVED adoption of Section 40-18-15. Judge Muggli seconded. Motion CARRIED.

Judge Pearce noted that Sections 40-18-16, 40-18-17 and 40-18-18, NDCC concern impaneling a jury in municipal court and MOVED their repeal. Second by Mr. Sand; motion CARRIED.

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Judge Pearce noted that subsections 1 through 6 of Section 29-01-06, NDCC are a listing of rights and proposed amendment of subsection 5 as follows.

Subsection 5 of Section 29-01-06, NDCC

Existing statute:

To a speedy and public trial, and by an impartial jury of the county in which the offense is alleged to have been committed or is triable, but subject to the right of the state to have a change of the place of trial for any of the causes for which the party accused may obtain the same.

Proposed statute:

To a speedy and public trial, and by an impartial jury of the county in which the offense is alleged to have been committed or is triable if the party accused is entitled to a trial by jury, but subject to the right of the state to have a change of the place of trial for any of the causes for which the party accused may obtain the same.

Judge Pearce MOVED its approval. Seconded by Mr. Sand. CARRIED without objection.

It was noted that this section had not been previously referred to in statutes affected. Judge Erickstad directed the staff to make a note of that fact. It is noted that this statute is considered by Rule 44.

Mr. Sand MOVED that Judge Pearce be commissioned as representative of this Committee for the purpose of introducing such bill to the legislature. Second by Judge Murray. Judge Muggli volunteered his assistance in drafting and presenting the bill. There was no further discussion on the motion; the question was called and the motion CARRIED.

RULE 31

Chairman Erickstad suggested that action be postponed on the Statutes Affected by Rule 31 until the next meeting because Judge Smith, the sponsor, is not in attendance to act in behalf of his recommendations.

RULE 32

Consideration of Rule 32, Sentence and Judgment. [(a), (b) and (c)(1) adopted February 20, 1969; (c)(2) adopted May 15, 1969; (f) amended October 20, 1969] John Shaft, sponsor. Substantial changes recommended in accordance with the proposed changes to Federal Rules and ABA Standards see proposed addition to Rule 32, draft page 35, for (a)(3) Credit. Also see ABA Comparative Analysis, pages 1-18, December 1972.

Mr. Travis explained the changes recommended by the staff to 32(a)(1), as follows: add the language "except as provided by Rule 43(c), to determine whether" in lines 6 and 7, in line 8 "or wishes", and in lines 10 and 11 the language "if the defendant expresses a desire to do so, the court shall provide him such opportunity". The paragraph would read as follows;

Sentence shall be imposed or other authorized disposition made without unreasonable delay. Pending disposition the court may commit the defendant or continue or alter the bail. Before imposing sentence the court shall, (a) afford counsel an opportunity to speak on behalf of the defendant, and (b) shall address the defendant personally, except as provided by Rule 43(c), to determine whether he wishes to make a statement in his own behalf or wishes to present any information in mitigation of punishment or which would require the court to withhold pronouncement of judgment and sentence; if the defendant expresses a desire to do so, the court shall provide him with such opportunity. The prosecution shall be given an opportunity to be heard on any matter material to the imposition of sentence.

The proposed amendment is intended to establish a consistency between Rule 43 and this Rule by acknowledging the provision that the defendant need not appear personally in all cases -- that there are exceptions provided in Rule 43, such as if the defendant is a corporation or if the offense is a misdemeanor.

The second substantive provision, Mr. Travis noted, is the proposed addition of a subsection (3) under subdivision (a) providing for credit. Mr. Travis

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noted that this provision had been incorporated in the proposed North Dakota Criminal Code and was also recommended by the ABA Standards.

Mr. Shaft read Rule 32(a). He also read the Explanatory Notes for (a) [pages 39-40 of draft and page 35]. Judge Muggli commented that he employs a procedure of asking the local law enforcement officer for recommendations when recommendations are given by the state's attorney.

Judge Erickstad MOVED adoption of 32(a)(1). Second by Judge Pearce. CARRIED unanimously.

Mr. Shaft MOVED adoption of 32(a)(2). Second by Judge Pearce. Opposition was expressed by Judge Muggli and Mr. Sand over notification of the right to appeal. Judge Muggli pointed out that under this provision of the rule an attorney is provided for the defendant which has the effect of saying "the attorney doesn't know what he is doing". He added that this procedure would encourage frivolous appeals by encouraging such appeals with respect to indigent defendants.

Mr. Sand commented that this line of reasoning shatters the judicial process -- that we are in effect saying that no case is finalized until the U.S. Supreme Court has ruled on the question. Chairman Erickstad said it may be better, though, that the person be informed of all his rights in the first instance rather than give that person a reason for a new trial on appeal.

Mr. Shaft stated he has no objection to notification of right to appeal. Acting Chairman Persinger felt the defendant should be advised that he has the right to appeal. Chairman Erickstad stated if the trial judge were more careful spelling out the rights, there would be fewer appeals. Judge Muggli was the sole Committee member voicing objection.

Judge Erickstad noted that the experience of the N.D. Supreme Court with respect to criminal appeals pointed up the fact that if the trial judge were careful in spelling out the rights of the defendant, there would be fewer appeals. Acting Chairman Persinger in answer to Judge Muggli stated that in federal court, where a sentencing judge files a certificate that the appeal is for purposes of delay or is frivolous, the convicted person is not entitled to cost-free appeal.

Judge Muggli, reading from the explanatory note to the Federal Rule pointed out that case law under the Federal Rule required that the defendant be advised of his right to appeal and the failure of such notice requires remand for such failure. Chairman Erickstad stated that the question of when to advise the defendant of his right to appeal should not be left to the trial judge to decide because personalities enter into such questions and there are times when a judge may think that he (the defendant) had a perfect trial.

There was no further discussion; the question was called on the adoption of 32(a)(2). CARRIED, with Judge Muggli opposed.

Mr. Sand stated that he had a number of objections to subsection (a)(3). His first objection was use of the word "should", in line 1, which he felt should read either "shall" or "may". Mr. Travis responded by noting that this was the advisory language from the ABA Standards and was included to give the Committee an opportunity to determine whether the requirement should be mandatory or discretionary.

Mr. Sand stated that his further objection to this provision dealing with credit was that if it were included as part of the Rule, it should be amended to include provision for restitution as part of the sentence. He said, further, that he was not opposed to the concept that credit should be awarded for time spent in custody prior to conviction, but that he felt it shouldn't be part of a rule. He added that it was his understanding that judges are educated to the requirements of awarding credit for time previously spent in custody and that the Rules should not serve the purpose or the function of educating. He stated that if education were the purpose of the Rules, that the Committee has "missed its goal and will never find an end".

Mr. Travis responded by saying that the Rule is not utilized for purposes of education but rather for standardization. He noted that the work accomplished by Judiciary "B" in the new North Dakota Criminal Code includes a provision for restitution in a sentence as well as a provision for credit. Mr. Travis noted that the danger in not having a provision which would give credit for time spent

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in custody is in the occasion where a judge awards a defendant the maximum sentence upon conviction and if that defendant has been held in custody prior to trial and the judge does not take such custody into consideration in framing the sentence, then it is possible for the judge to exceed the maximum punishment provided by the legislature for such an offense.

Discussion followed concerning the matter of credit given for time spent in custody. Judge Muggli related a personal experience that he had, in which a convict which he had sentence to life imprisonment wrote to him asking for credit for time spent in custody prior to conviction. Judge Muggli stated Judiciary "B" has provision for giving such credit, and added that it should be statutory, not in the Rules, that credit should be given for time served. He noted further that the Federal Rule makes no provision for credit.

Mr. Travis noted that the Federal Rules incorporate by reference many federal statutes which are not contained in the body of North Dakota law, therefore continuity dictates that such provisions be added to the Rules. Mr. Travis referred to the ABA Comparative Analysis prepared by Mr. Jacobson for the Committee's benefit.

Judge Erickstad called upon John Shaft to comment on subsection (a)(3) prior to the Committee's final action. Mr. Shaft responded by noting that the recommendation for subsection (3) is a staff recommendation -- that he is almost convinced by Judge Muggli and Mr. Sand that such provision is unnecessary, that an attorney who fails to argue for an award of credit in framing the sentence is remiss in his duties, and that the court which fails to give credit is not executing proper justice. He added that he felt that the benefit in such provision was for the indigent who couldn't raise the money for release from custody and was forced to remain in jail while the rich man, because of his ability to post bond, is released.

Mr. Travis read the credit provision in the proposed N.D. Criminal Code of Judiciary "B" [Section 12-32-02(2)], as follows;

Credit against any sentence to a term of imprisonment shall be given to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed, or as a result of the conduct on which such charge was based. "Time spent in custody" shall include time spent in custody for the offense charged prior to trial, during trial, pending sentence, and pending appeal.

Mr. Sand stated he would vote for that statute but that it should not be a rule. Judge Murray questioned whether a credit provision is a proper subject for a rule. He said he didn't think so.

Question was called on the adoption of 32(a)(3). FAILED unanimously.

Mr. Shaft MOVED adoption of the Explanatory Note for subsections (a)(1) and (2), and included authority for Mr. Travis to amend the notes to explain exception. Judge Muggli seconded. Motion CARRIED unanimously.

Mr. Shaft read 32(b), Judgment, and MOVED its adoption. Judge Muggli seconded. Discussion; question was whether, to fit all courts, the "clerk" should be mentioned. The judge acts as clerk; no change necessary. There was no further discussion. Judge Erickstad called for the question. Motion CARRIED without objection.

The Explanatory Note for 32(b) was read by Mr. Shaft, who MOVED its adoption. Second by Mr. Sand. Motion CARRIED without objection.

Subsections 32(c)(1) and (2) and their explanatory notes were read by Mr. Shaft. He MOVED adoption of 32(c)(1).

Mr. Travis explained that the new language in 32(c)(1), "except that a judge may, with the consent of the defendant, inspect the presentence report to determine whether a plea agreement should be accepted" is necessary following adoption of Rule 11. Judge Erickstad questioned the phrase "with the consent of the defendant", noting that it seemed a peculiar requirement. It was noted that the Federal Rule reads in similar language.

Judge Pearce questioned the possibility of a pre-sentence report before sentence. Mr. Persinger explained that in Federal practice, upon indictment or information, where there has been an indication that a guilty plea will be entered, the probation officer then secures a written consent from the defendant to proceed with his presentence investigation.

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There was much discussion concerning the words "may direct" and "report may be made". Mr. Travis noted that the intention is that the provision be discretionary because there are cases where such report is unnecessary. Mr. Travis noted that the proposed Federal Rule (32) enumerates the circumstances under which the presentence report becomes discretionary.

Mr. Shaft AMENDED his motion to adopt with the deletion of the last word in line 1, "may". Mr. Sand seconded.

It was pointed out that the provision for a presentence report would be dictated by the circumstances of the case. For example, the nature of the offense and the court to which the case is tried is important. Another consideration to be given is the availability of a staff to prepare such report. Judge Muggli suggested the possibility of limiting the presentence report to felony cases.

Question was called on the motion to adopt 32(c)(1). CARRIED, with Judge Murray opposed.

Mr. Shaft MOVED adoption of the Explanatory Note for 32(c)(l). Judge Muggli seconded. No discussion and the motion CARRIED, with Judge Murray opposed.

Mr. Shaft MOVED to adopt 32(c)(2), Report. Judge Muggli seconded. Discussion; Chairman Erickstad took issue with the word "characteristics" in line 3, suggesting that the word "character" was a better term. It was noted that the language was that of the Federal Rule. The motion CARRIED, with Judge Murray opposed.

John Shaft MOVED adoption of the Explanatory Note to 32(c)(2). Seconded by Judge Muggli. Judge Murray stated his dislike for procedures that resemble the civil law. Motion CARRIED.

Subsection 32(c)(3), Disclosure, was read by Mr. Shaft with the appropriate Explanatory Note. Mr. Shaft noted that under the Rule, the defendant and his counsel are permitted to read the report (line 2), but on the explanatory comment, it reads "the defendant or his counsel" (line 7). He didn't feel any significance should be attached.

Mr. Shaft MOVED the adoption of 32(c)(3)(i). Judge Pearce seconded. Judge Erickstad called for the question. Motion CARRIED without objection.

John Shaft MOVED adoption of 32(c)(3)(ii). Second by Judge Erickstad. Acting Chairman Persinger commented that prior to the disclosure feature in the Federal Rules, the probation officer would make a recommendation in his report whether the defendant would benefit from probation or incarceration and recommend a minimum, maximum or intermediate term. Since this feature for disclosure was adopted, he now does not make that recommendation in a presentence report but rather prepares a "side-report" that is not disclosed to the defendant or his counsel. He added that the report calls for factual information and not recommendations.

Judge Erickstad called the question on 32(c)(3)(ii). Motion CARRIED.

Mr. Shaft MOVED adoption of subsection (c)(3)(iii). Second by Mr. Sand. Mr. Shaft suggested a grammatical change to correct a split infinitive, moving "also" so that it would read, "also shall be disclosed". Judge Murray noted that Winston Churchill split infinitives. Call for the question and the motion CARRIED without objection.

In reference to 32(c)(3)(iv), Mr. Shaft asked if the pre-sentence reports are made a part of the trial record. Mr. Persinger answered that they are not, they are rendered to the probation officer.

It was noted that Section 12-55-30 should be considered with the Statutes Affected.

Mr. Shaft MOVED adoption of 32(c)(3)(iv). Second by Judge Muggli. Discussion; Judge Erickstad asked about the practicality of retrieving all copies of the presentence report. Mr. Persinger noted the method of handling the matter in Federal District Court -- purpose is to maintain the secrecy of the reports. In discussion, Judge Erickstad asked if the press becomes involved and if so, how. Mr. Persinger said there is no press present. Judge Erickstad added that unless the judge states his reasons orally for imposing such a sentence, no one will ever know. Question was called on the adoption of 32(c)(3)(iv). CARRIED without objection.

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Mr. Shaft MOVED adoption of the Explanatory Note to Rule 32(c)(3). Mr. Travis noted one change in line 2; to insert after "Rules of Criminal Procedure", 52 F.R.D. 451. Motion was seconded by Judge Muggli. No discussion. CARRIED without objection.

John Shaft read 32(d), Withdrawal of Plea of Guilty, and the Explanatory note. Mr. Shaft MOVED adoption of subdivision (d) with change of the word "suspended" to "deferred", as originally adopted. Judge Pearce seconded. The reason the change had been proposed was due to a misconception of the term. No discussion. Motion CARRIED unanimously.

Mr. Shaft MOVED adoption of the Explanatory note (d), striking in lines 1, 2, and 3;

"and provides that the motion for withdrawal of a guilty plea may be oral if made at the sentencing hearing, but if made at another time it must be in writing".

Judge Murray seconded and the motion CARRIED.

Subdivision 32(e), Probation, was read next and the Explanatory note. Mr. Shaft MOVED to adopt 32(e). Second by Judge Erickstad. Judge Erickstad called for the question; motion CARRIED unanimously.

In discussion regarding the explanatory note for (e), Mr. Shaft wanted an explanation of the distinction between "suspending" of sentence and "deferment". He suggested including Section 12-53-13, NDCC (Imposition of sentence suspended -- When authorized.).

Mr Sand suggested amending the Explanatory Note paragraph as follows;

"Subdivision (e) deals with probation. (((The probation law in North Dakota may be found at Sections 12-53-04 (Probation and parole from county jail.) and 12-53-06 (When sentence for felony suspended court must place defendant on probation.) of the North Dakota Century Code.))) When a sentence for a felony is suspended (Section 12-53-06, NDCC) or is deferred (Section 12-53- 13, NDCC) the court must place the defendant on probation. Section 12-53-04 provides for probation or parole from a sentence to a county jail upon a conviction for a misdemeanor. (((Section 12-53-06 provides that upon suspending a sentence for conviction of a felony the court shall order probation.)))

Mr. Shaft MOVED to adopt that paragraph as amended. Second by Mr. Sand. No further discussion. Chairman Erickstad called for the question. Motion to adopt CARRIED unanimously.

Subdivision 32(f)(1) was read by Mr. Shaft and the Explanatory Note thereto. There was discussion. Mr. Sand expressed concern regarding the language, a "parole officer" may take the probationer into custody. He felt it was restrictive and the term "peace officer" should be included.

Mr. Travis noted that in establishing language for subdivision (f), dealing with revocation of probation, consideration was given to the ABA Standards for Criminal Justice, Standard Dealing with Pleas of Guilty, Approved Draft of 1968, which is followed under the provisions of this subdivision with one exception. The exception relates to the taking into custody of a probationer. The deviation from the Standard was made pursuant to a discussion with Mr. Irvin Riedman, who is Chief Parole Officer. Consideration was given to the fact that the Standards apply mainly to an urban society, while the requirements of North Dakota law should be geared to a rural society. Mr. Travis noted that it was pointed out in discussion with Mr. Riedman that the practice most suitable to the needs of North Dakota dictate that the taking into custody of the probationer, upon a violation of probation, is best handled by a probation officer rather than a peace officer. Reasons cited for this were that (1) the opportunity of harassment of probationers by police officers is diminished, and (2) the probation officer is best equipped to deal with the problems of the probationer. It was further noted that violation of a condition of probation usually does not require any degree of immediacy for taking the violator into custody. However, if the probationer has violated a law, any peace officer is entitled to arrest.

Judge Erickstad suggested that Mr. Riedman be invited to attend this meeting in the morning for discussion of the topic.

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Mr. Sand suggested the following language for (f)(1): "Any state parole officer or any peace officer after determining probable cause, after the ...".

Reference was made to page 16 of the ABA Comparative Analysis for Rule 32, ABA Standard 5.2(a), the language "should be preceded by the issuance of an arrest warrant."

Judge Murray expressed his desire to hear Mr. Irv Riedman. Judge Pearce noted that he cannot be present on Tuesday.

Judge Erickstad opened the question for evening sessions. Mr. Sand stated he could not attend an evening session on Wednesday; make a Tuesday evening meeting conditional upon the progress of the Committee.

Meeting was RECESSED.

TUESDAY, December 12

Call to order by Chairman Erickstad at 9:10 a.m.

ATTENDANCE

Members Present:

Hon. Ralph J. Erickstad, Chairman
Hon. Norbert J. Muggli
Hon. William S. Murray
Mr. Roger Persinger
Mr. Paul M. Sand
Mr. John G. Shaft
Mr. Robert L. Vogel (afternoon session)
Hon. Gerald G. Glaser (arrived 2:40)

Members Absent:

Hon. Eugene A. Burdick
Mr. John A. Graham
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. Harry J. Pearce
Hon. Kirk Smith

Guest Present:

Mr. Irvin Riedman, Chief Parole Officer

Staff Present:

Mr. Travis, Mr. Jacobson, Miss Fischer

Chairman Erickstad introduced Mr. Riedman to the Committee. The meeting began with discussion of language for Rule 32.

Mr. Riedman was questioned concerning his opinion of the proposed North Dakota Rule. Specifically, he was questioned concerning the issue of whether the proposed Rule, which provides that the probation violator shall be taken into custody only by a probation officer, or the ABA Standards, which specifically note that the probation violator shall not be taken into custody by a probation officer, is the more suitable for the needs or requirements of the State of North Dakota. Mr. Riedman indicated that he would want to keep the power of taking into custody a probationer who has violated a condition of his probation. However, he added that he has mixed emotions on the subject. In some areas, he noted, the taking into custody by a peace officer would not be objectionable but that other cases, such as where the police officer uses such revocation for harassment purposes, it would be.

Mr. Sand cited the proposed language of the North Dakota Rule. Under subdivision (f), Revocation of Probation, Mr. Sand noted specifically the provision which requires that a warrant be issued "based on the probable cause that a violation of probation has occurred" before the probationer is taken into custody, and questioned whether with that protection, a peace officer should be permitted to execute the arrest.

Judge Muggli noted for Mr. Riedman's benefit the Rule as previously adopted provided that "Any state parole officer having probable cause to believe, or any peace officer having personal knowledge, that the defendant has violated a condition of his probation may take the defendant into custody...". He noted further that under the present proposed Rule, the warrant would be required before the probationer could be taken into custody. He questioned Mr. Riedman as far as the practical application of such provision.

Judge Muggli suggested returning to the language as originally adopted. He said that the taking of the probationer into custody should not be made so difficult. It would be the magistrate who would make the determination of whether the probationer had violated a condition of his probation.

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Judge Erickstad suggested a reference to the Federal Rule. Mr. Travis noted that the Federal Rule has no section as outlined under the proposed North Dakota Rule; the Federal Rule merely provides for revocation of probation.

The case of Morrison v. Brewer, 92 S.Ct. 2593 (1972) was mentioned as an applicable case to parole, which establishes certain requirements upon the parole officer.

Judge Erickstad asked Mr. Riedman if under the Morrison case a warrant of arrest is required to take into custody a parole violator. Mr. Riedman replied in the negative. Mr. Riedman said that he liked the Morrison case because it gave the parole officer the authority to arrest and hold without requiring a warrant.

Judge Muggli stated that his suggestion was to permit the taking of a probation violator into custody by "a police officer at the direction of a parole officer", thereby avoiding the necessity of a warrant. However, Mr. Shaft pointed out that Judge Muggli is placing the determination of probable cause on the wrong person -- because a determination of probable cause has historically been placed in the discretion of an independent magistrate.

Mr. Riedman pointed out that the ABA Standards apply to urban rather than rural areas. To sum up, on question, Mr. Riedman indicated that he would prefer to have his people be permitted to make arrests without a warrant, but that the peace officer be required to have probable cause and an arrest warrant for making an arrest.

There was no motion to adopt (f)(1) yet; Chairman Erickstad suggested an amendment to (f)(1) in the following language;

Any state parole officer having probable cause to believe that a probationer has violated a condition of his probation or any peace officer after the issuance of an arrest warrant based on probable cause that a violation of probation has been committed by the probationer may take the probationer into custody. Thereafter the probationer shall be brought before the court that originally placed him on probation for a hearing.

Discussion followed. Mr. Riedman stated that the problem with Judge Erickstad's proposal was the time/distance factor in bringing a probationer to the court of assignment if he is taken into custody at the other end of the state. Judge Muggli said that the additional effort was necessary since the judge who placed the defendant on probation had certain requirements in mind and should be consulted to determine whether any of those conditions were violated.

The Committee RECESSED at 10:00 a.m. for coffee; upon RECONVENING, discussion continued. Judge Muggli suggested that the language provide "and police officer upon the direction of a parole officer", to handle his concern over the issuance of a warrant. Then, return to the original language of the Rule.

Mr. Sand MOVED to amend language proposed by Judge Erickstad for purposes of providing an additional method of permitting the peace officer to arrest the defendant, to read as follows;

Any state parole officer having probable cause to believe that a probationer has violated a condition of his probation or any peace officer (((after the issuance of an arrest warrant based on probable cause that a violation of probation has been committed by the probationer))) upon direction of a state parole officer or upon direction or order of the court having jurisdiction may take the probationer into custody and shall bring the defendant forthwith before the appropriate authority for a hearing on the claimed violation.

Mr. Sand MOVED adoption of the above. Judge Muggli seconded, but stated that he would prefer the last sentence of the original draft of (f)(1) in lieu of the language of Mr. Sand's proposal.

Judge Erickstad then dictated a second draft, as follows; Upon probable cause to believe that a probationer has violated a condition of his probation any state parole officer, or any peace officer upon direction of a state parole officer or upon direction or order of the court having jurisdiction may take

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the probationer into custody and thereafter shall forthwith bring him before the court which originally placed him upon probation for a hearing.

Judge Muggli suggested that in Mr. Sand's draft, the word "such" be inserted in the phrase "upon direction of such state parole officer".

Mr. Shaft voiced his favor for Judge Erickstad's second draft. He suggested, and it was agreed by the Committee, that a comma be inserted after "probation" in line 2.

Mr. Sand suggested the addition of the following words in the last line: "before the court which originally placed him upon probation or appropriate authority for a hearing."

Judge Erickstad pointed out two divergent viewpoints with respect to violation; one, that it should be contained in the Rule and the other, that it should not. Judge Muggli MOVED that the Committee not provide in these Rules procedures of any kind for parole violation as distinguished from probation violations. Second by Mr. Sand and CARRIED without objection.

Judge Muggli offered a SUBSTITUTE MOTION to adopt Judge Erickstad's second draft with the two changes, i.e., insertion of a comma in line 2 and addition of the words "on the alleged violation" at the end. Second by Paul Sand.

In discussion, Mr. Shaft referred to the ABA Comparative Analysis for Rule 32(f)(1), page 16, the material "[Costs incurred in bringing the probationer before the court shall be borne by the county wherein the probation was granted.]" Mr. Jacobson pointed out that the reason for this provision was that Section 12-53-15 is superseded by the Rule and that statute contains this provision. Mr. Sand pointed out that the statute contains more. Judge Erickstad suggested foregoing the cost provision and allowing such to be handled by the individual judge -- further, that the Explanatory Note should contain such a provision. Motion to adopt (f)(1) CARRIED unanimously.

Judge Erickstad asked Mr. Riedman whether the provision as now reads would be workable for his purposes and would meet the tests of the various cases applicable to the subject of probation as Mr. Riedman knows them. Mr. Riedman replied in the affirmative.

It was suggested that the Committee defer consideration of the Explanatory Note for subsection (f)(1) since it must be redrafted.

Mr. Shaft read (f)(2), Hearing. Judge Erickstad suggested language for 32(f)(2)(iii):

"A hearing which is based solely upon the commission of (((another))) acrime other than the crime for which the probationer was originally prosecuted (((ordinarily should))) shall not be initiated prior to the disposition of that charge."

A lengthy discussion followed concerning the question of the hearing on revocation of probation. Under the position argued by Mr. Travis, when a probationer has been accused of committing a crime which is not a part of the conditions of probation (such as for speeding, the conditions of probation do not include a restriction against driving or owning a motor vehicle but do include a general provision that the probationer shall not be found guilty of another crime), the mere accusation of the second crime shall not be sufficient to institute revocation of probation hearings until determination of the second crime has been had and the defendant has been found guilty of committing that crime. However, if the probationer has been charged with possession of marijuana and one of the conditions of probation is that the probationer shall not be found in possession of any drug or drug-related substance, then the mere possession is sufficient to commence revocation of probation hearings without going into a trial of the general issue, which may be had at a later time. Judge Erickstad's position would permit a commencement of the revocation proceeding upon the accusation or charging of the probationer with the commission of another crime. Under Judge Erickstad's proposal, they may proceed with the revocation proceeding and revoke his probation without proving the essence of the crime beyond a reasonable doubt. The requirement of proof to determine whether or not his probation should be revoked is by preponderance of the evidence.

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Judge Erickstad MOVED to delete the second and third sentences and the last sentence of (f)(2)(iii). The material to be stricken reads as follows;

A hearing which is based solely upon the commission of a crime other than the crime for which the probationer was originally prosecuted shall not be initiated prior to the disposition of that charge. However, upon a showing of probable cause that another crime has been committed by the probationer, the probation court shall have discretionary authority to detain the probationer without bail pending a determination of the new criminal offense.

An order revoking probation shall be appealable after the offender has been resentenced.

Motion CARRIED, with Mr. Shaft opposed.

At 12:15 the meeting was RECESSED for lunch.

RECONVENED at 1:50 with Roger Persinger, Acting Chairman. Present were Committee members Erickstad, Muggli, Persinger, Sand, Shaft, and Vogel; Mr. Irv Riedman, guest; and staff members Travis, Jacobson and Fischer.

Mr. Shaft read the proposed Explanatory Note for 32(f)(2), as follows;

Subsection (f)(2), entitled Hearing, is adapted from the ABA Standards, Probation, supra, .5.3 and .5.4. It is stated by the ABA Advisory Committee that, since a revocation proceeding;

"involves exactly the same kind of problem as is involved in the criminal trial itself -- the ascertainment of historical events about which there may be some dispute and the consideration of those events against a standard of conduct to which the probationer is expected to adhere, [that] the inability of a lay-probationer to adequately protect himself in such a context is just as pronounced as it is at the trial itself."

ABA Standards, supra, page 69.

The serious consequences, which include incarceration of the probationer, that could result from the hearing requires that the probationer be afforded the same procedural due process as is given him at the initial sentencing. This subsection recognizes this.

Under present law, the parole board may revoke suspension of the sentence of a person convicted of a felony and placed on probation [Section 12-53- 11, NDCC].

That part of the rule which provides that hearings based solely on the commission of another crime should not be initiated prior to disposition of that charge eliminates the possibility of a probationer having his probation revoked for a crime for which he has not yet been convicted. There is, however, flexibility in the rule in that the probation court may detain the probationer if it is shown by probable cause that the defendant did commit the crime. Permitting confinement of the probationer releases any pressure to revoke probation prior to the trial on the other crime. The word "solely" is used in that section relating to the commission of another crime to make clear that for any conduct of the probationer that gives rise to the criminal charge which, in itself, constitutes a violation of probation, the probation court need not defer its hearing. [ABA Standards, Probation, supra, .5.3, page 65, Approved Draft, 1970.] A preponderance of the evidence must establish a violation in a contested hearing. There need not be proof beyond a reasonable doubt, however. [See People v. Valle, 164 N.Y.S.2d 67; People v. Cook, 202 N.E.2d 674; Reinmuth v. State, 80 N.W.2d 874.] It is intended that the government be entitled to be represented by a prosecuting attorney.

Upon the hearing the court may either revoke probation and sentence the probationer or it may continue probation. The continuation of probation is allowed since there may be circumstances that will not warrant confinement and the court should be allowed to take these into account. The appeal is presently allowed under Section 12-53-20, NDCC (Appeals not precluded.), and since an appeal is allowed there should be a record kept.

Mr. Shaft MOVED adoption of the Explanatory Note 32(f)(2). Second by Mr Sand.

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Changes were made in line 1 of the first paragraph, paragraphs 2 and 3 were deleted, and an additional paragraph was included. The Explanatory Note for 32(f) as redrafted follows;

Subdivision (f) is divided into two subsections. Subsection (1) provides for procedure on arrest, and subsection (2) establishes the procedure to be followed on hearing -- both of which are deemed necessary for a proper revocation of probation.

Subsection (f)(1) provides three methods by which a probationer may be taken into custody for alleged violation of probation, all of which require probable cause that a violation of probation has been committed: (1) by a state parole officer, (2) by a peace officer under direction of a state parole officer, (3) by direction or order of the court having jurisdiction over the probationer. The requirement that the hearing on a violation of probation be by the court of original imposition is intended to insure the defendant of a fair hearing. The court of imposition is best able to determine if its conditions of probation have been violated. The subdivision also provides that the court may require the probationer to come before it for a hearing on an alleged violation.

This subsection is adapted in part from the ABA Standards, Probation, supra, .5.3 and .5.4. It is stated by the ABA Advisory Committee that, since a revocation proceeding;

This subsection is not intended to include those situations in which the court no longer has jurisdiction over the individual such as suspended sentence on a felony conviction or parole violation. Subsection (f)(2) does not include a provision for delay of a hearing on revocation of parole pending determination by a trial court of a crime which may be a basis for revocation. However, courts should give careful consideration, in the interest of justice, to be certain that the rights of the defendant are properly protected against the needs of the public for immediate revocation of probation. [See ABA Standards, Probation, .5.3, Proceedings Following Commission of Another Crime and comments at page 63.]

Mr. Shaft MOVED adoption of the Explanatory Note for 32(f). Mr. Sand seconded.

A change was made in line 2 of .1 to substitute "taking into custody" for the words "on arrest".

Judge Erickstad questioned the language in .3 that "the same procedural due process..." Mr. Shaft included in his MOTION the elimination of those four lines.

In discussion, Judge Erickstad suggested language to be added to the end of the final paragraph, as follows; "Notwithstanding the above, it was determined not to adopt the provisions of 5.3 of the ABA Standards."

Mr. Shaft suggested striking the reference to .5.3 in paragraph 3, line 2.This met with Committee approval.

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Mr. Persinger suggested amendment of the last sentence of paragraph 4, as follows; (((The))) An appeal from revocation of probation is presently allowed under Section 12-53-20, NDCC (Appeals not precluded.) (((and since an appeal is allowed there should be a record kept))).

The motion to adopt the Explanatory Note as proposed and as amended CARRIED without objection.

STATUTES AFFECTED

Considered:

1-01-41 no objection

12-53-03 no objection

12-53-04 no objection

12-53-05 Section 12-53-05 (Rules for probation and parole from county jail.) was added to the list of Statutes Considered.

12-53-06 no objection

12-53-11 no objection

12-53-12 no objection

12-53-13 no objection

12-53-14 no objection

12-53-17 no objection

12-53-20 no objection

Superseded:

12-53-10 (pocket supp.) Mr. Sand MOVED Section 12-53-10 (Arrest of person under suspended sentence for breach of probation conditions.) be moved to the list of Statutes Considered. Second by Mr. Shaft and by Mr. Persinger. CARRIED unanimously.

12-53-15 (pocket supp.) It was suggested that Section 12-53-15 (When probation may be terminated.) be superseded with the understanding that the court assess the costs to the county, or be superseded except to that part relating to costs.

Chairman Erickstad suggested moving the Statute to the Considered section. Mr. Shaft noted that then note should be made in the Explanatory Note.

Mr. Shaft MOVED to add to the end of subsection 32(f)(1) of the Rule, "Costs incurred in bringing the probationer before the court shall be borne by the county wherein the probation was granted."; to strike the title "Arrest" and substitute "Taking into Custody"; and to supersede Section 12- 53-15. Motion was seconded by Mr. Sand. CARRIED unanimously.

Considered:

29-26-03 no objection

29-26-04 no objection

29-26-11 no objection

29-26-12 no objection

29-26-13 no objection

29-26-14 no objection

29-26-16 no objection

29-26-17 no objection

29-26-18 (pocket supp.) Section 29-26-18 (Evidence in aggravation or mitigation of punishment -- How presented.) was listed as "Referred to Legislature". It is noted that it seemed restrictive in nature.

Judge Muggli MOVED to list Section 29-26-18 as Considered. Second by Mr. Vogel. Motion CARRIED without objection.

Judge Erickstad noted that this is with the consideration that if there is a conflict the Rules would control.

The RECORD notes the arrival of Judge Glaser.

29-26-19 Mr. Vogel MOVED to supersede Section 29-26-19 (Other evidence prohibited.). Seconded by Judge Muggli and Mr. Sand. CARRIED unanimously.

29-26-20 no objection

29-26-22 Mr. Sand MOVED to remove Section 29-26-22 (Judgment for fines and costs -- Docketing and enforcement.) from the list of Statutes Considered.Motion seconded and CARRIED.

29-26-23 no objection

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Superseded:

29-26-01 no objection

29-26-02 no objection

29-26-15 no objection

29-14-22 Mr. Travis suggested including Section 29-14-22 (Plea of guilty may be withdrawn.), noting that the statute is superseded under Rule 11, Pleas. MOTION to list Section 29-14-22 with Statutes Superseded by Rule 32.Second by Mr. Sand and the motion CARRIED.

33-12-26 no objection

33-12-27 no objection

12-55-30c (pocket supp.) It was MOVED by Mr. Sand that Section 12-55-30 (Official statements of judge and state's attorney -- Contents.) be listed among Statutes considered. Second by Judge Muggli. CARRIED unanimously.

33-12-28 & 33-12-29 Mr. Travis suggested that Sections 33-12-28 (Conviction of defendant -- Judgment.) and 33-12-29 (Defendant convicted to be informed of right to appeal -- Bail pending appeal.) be included as superseded. Judge Muggli MOVED Section 33-12-28 be Considered and Section 33-12-29 be Superseded. Second by Mr. Vogel. It was pointed out by Mr. Vogel that the first sentence of 33-12-28 should be superseded, the second was unconstitutional, and the third is alright.

In discussion, Mr. Sand noted that Section 33-12-29 also relates to bail. It was explained that Rule 46 considers bail.

The motion CARRIED unanimously.

Mr. Shaft MOVED Rule 32 and the Explanatory Note be adopted. Second by Mr. Sand. Motion CARRIED unanimously.

Acting Chairman Persinger relinquished the Chair and Mr. Vogel was instated as Acting Chairman.

RULE 33

Consideration of Rule 33, New Trial. [adopted September 27, 1968] Judge Ilvedson, sponsor. No change.

Rule 33 and the Explanatory Note were read by Judge Glaser, as follows.

Rule 33. New Trial. [adopted 9/27/68]

The court on motion of a defendant may grant a new trial to him if required in the interest of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of. A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. When affidavits are presented to the court in support of a motion for new trial, the court, when the affiants are residents of this state, may compel their personal attendance before it, and they may be examined and cross-examined under oath, touching the matters set forth in their affidavits. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial on any other grounds shall be made within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period.

Proposed Explanatory Note

Rule 33 is an adaptation of Rate 33 of the Colorado Rules of Criminal Procedure and provides the court with the power to grant a new trial to a defendant if it determines that it is in the interest of justice to do so. This Rule differs from Rule 33 of the Federal Rules in that it requires that a motion for a new trial be in writing, that the motion point out with particularity the defects and errors complained of, and that a motion based on newly discovered evidence or a jury misconduct be supported by affidavits. Rule 33 embodies that part of Section 29-24-03 NDCC (Motion on ground of newly discovered evidence -- Procedure.) which provides that the court may compel an affiant to appear personally before the court and be cross-examined under oath on matters set forth in his affidavits.

Under this Rule, the court has no power to order a new trial on its own motion, but may act only upon a timely motion made by the defendant. This provision is intended to avoid problems of double jeopardy. United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1948). [Note: This Rule does not affect the power of the court to declare a mistrial and order a new trial on its own motion if such circumstances arise prior to verdict or finding of guilt as to warrant such.]

The Rule limits the time for making the motion to two years from "final judgment" (the same date as time for appeal begins to run) in cases of newly discovered evidence although there is no apparent reason for the two- year period. A motion based on any other ground must be made within seven days after the verdict (in a jury trial), or the finding of guilt (in a court trial), or within such further time as the court may fix during the seven-day period.

A timely motion for a new trial suspends the running of the time to appeal from the judgment of conviction [see Rule 4(b), NDRAppP; also Rule 37(b)]. An appeal may be taken within ten days after entry of the order denying the motion for a new trial [see Rule 4(b), NDRAppP; also Rule 37(b)]. The appeal may then be taken from the judgment of conviction using the grounds raised in the motion for appeal.

The provision of the Rule which permits a motion for a new trial on grounds of newly discovered evidence, even though an appeal is pending (provided the case is remanded), is solely to expedite the proceedings. The essential requirements necessary to meet the test for a motion for a new trial based on newly discovered evidence is (1) that the evidence must have been discovered since the trial; (2) that failure to learn of the evidence at the time of trial was not the result of the defendant's lack of diligence; (3) that the newly discovered evidence is material to the issues at the trial; and (4) that such evidence is of such a nature that it would probably produce an acquittal in the event of retrial.

Language in paragraph 3 of the Explanatory Note was questioned, particularly the phrase "although there is no apparent reason for the two- year period." Mr Travis explained that the treatises and advisory notes indicated that there was no reason for the two-year period. Judge Glaser suggested deleting the entire paragraph. A great deal of discussion was had concerning the 2-year limitation within which the application for new trial based on newly discovered evidence must be made. The post-conviction remedies were discussed as are available under the Century Code. Judge Erickstad suggested that the proper time for insertion of new language would be upon the consideration of statutes.

Judge Glaser MOVED to adopt Rule 33, Judge Muggli seconded. Chairman Erickstad called for the question on the motion; motion CARRIED unanimously.

Discussion of the Explanatory Note continued. Judge Glaser MOVED in paragraph 1, line 7, "a" be stricken; paragraph 3 be deleted; in paragraph 4, last line, "for appeal" be changed to read "for a new trial"; and the last paragraph be stricken and substitute therefore the following;

The provision of the Rule which permits a motion for a new trial on grounds of newly discovered evidence, even though an appeal is pending (provided the case is remanded), is solely to expedite the proceedings. The essential requirements necessary to meet the test for a motion for a new trial based on newly discovered evidence is (1) that the evidence must have been discovered since the trial [Johnson v. United States, (CCA 8th, 1929) 32 F.2d 127, 130]; (2) that failure to learn of the evidence at the time of trial was not the result of the defendant's lack of diligence [Nagell v. United States, (CA 5th, 1966) 354 F.2d 441, 448-449]; (3) that the newly discovered evidence is material to the issues at the trial [Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956)]; and (4) that such evidence is of such a nature that it would probably produce an acquittal in the event of retrial [8A Moore's Federal Practice and Procedure (Cipes, 2d Ed. 1972), .33.03[11], at page 33-12, 13].

Judge Muggli seconded. Motion CARRIED.

STATUTES AFFECTED

Considered:

29-23-11 no objection

29-28-29 no objection

Mr. Sand MOVED Chapter 29-32 (Uniform Post-Conviction Procedure Act) be listed as Considered. Seconded by Judge Muggli. CARRIED.

Reconsideration of Rule

Mr. Shaft suggested the Rule be amended to state that "Nothing in this Rule shall affect the remedies granted under Chapter 29-32." Mr. Sand expressed his favor for this addition.

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Mr. Shaft MOVED to add the following sentence to Rule 33; "Nothing in this Rule shall be construed to affect the remedies contained in Chapter 29-32, NDCC." Mr. Sand suggested that by passing this it would support the proposition that where there is conflict, the Rule prevails. Mr. Persinger suggested that rather than use the words "contained in", use "provided by". Motion CARRIED without objection.

Mr. Shaft MOVED to readopt Rule 33 as amended. Seconded by Judge Muggli and CARRIED.

Statutes Superseded:

29-24-01 thru -06

The entire Chapter 29-24 (Motion for New Trial) is superseded and should be listed as "Chapter 29-24". In discussion, Judge Glaser referred to Section 29-24-04 (Motion for new trial -- Notice.). Judge Erickstad questioned whether the elements of Section 29-24-03 (Motion on ground of newly discovered evidence -- Procedure.) are written into the Rule; it was agreed that they are.

Cross Reference:

Judge Glaser read Rule 4(b) of the N.D. Rules of Appellate Procedure, as follows.

Rule 4. Appeal -- When Taken

(b) Appeals in Criminal Cases. In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. When an appeal by the state is authorized by statute, the notice of appeal shall be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Mr. Persinger suggested including as a cross reference Criminal Rule 37(b). [Staff note: Rule 37 is being redrafted for consideration at the meeting of February 20-23, 1973.]

Judge Glaser MOVED adoption of the Explanatory Note to Rule 33. Second by Judge Muggli. CARRIED.

Reconsideration of Rule:

Mr. Sand suggested limiting in Rule 33 the time for making a motion for a new trial after discovering new evidence. He referred to Section 29-24-04, "such written notice must be served and filed within thirty days after..." He MOVED to reconsider Rule 33 to amend the sentence beginning on line 9, to insert after "evidence", must be made within 30 days after discovery of the facts upon which it is made and within..." Motion seconded by Judge Muggli.

Judge Erickstad questioned the possibility of conflict with the language inserted that "Nothing in this Rule shall..." The other members felt that would be no conflict. Judge Glaser commented that we are restricting some rights that now exist as compared to present law by allowing leeway with respect to newly discovered evidence and for no other purpose.

Mr. Sand MOVED to also insert the words "or jury misconduct" after the word "evidence" in line 10 of the Rule. Judge Muggli seconded and the motion CARRIED.

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Judge Glaser MOVED to readopt Rule 33 and its accouterments. Seconded by Judge Muggli. Motion CARRIED unanimously.

RULE 34

Consideration of Rule 34, Arrest of Judgment. [adopted September 27, 1968] Paul Sand, sponsor. No change.

Mr. Sand read Rule 34 and the Explanatory Note as follows.

Rule 34. Arrest of Judgment. [adopted 9/27/68]

The court on motion of a defendant shall arrest judgment if the indictment, information, or complaint does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period.

Proposed Explanatory Note

Rule 34 is an adaptation of Rule 34 of the Federal Rules of Criminal Procedure and differs only to the extent that it includes the "complaint" as a charging document. The Rule follows existing law [Chapter 29-25, NDCC (Motions in Arrest of Judgment)] with the exception that it recognizes only two grounds for a motion in arrest of judgment: (1) that the indictment, information or complaint does not charge an offense; and (2) that the court is without jurisdiction of the offense charged. Both of these offenses are among the non-waivable defenses referred to in Rule 12(b)(2), NDRCrimP. The distinction is that under this rule the motion is made after determination of guilt, while under Rule 12(b)(2) the motion can be made at any time during the pendency of the proceeding.

In granting a motion in arrest of judgment, a [district] court must not look beyond the face of the record [United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 2125, 26 L.Ed.2d 608 (1970)]. The record includes only the indictment, plea, verdict and sentence [Button v. United States, 157 F.2d 661, 662 (5th Cir. 1946)]; the evidence is not a part of the record [United States v. Sisson, cited above]. Therefore an attack on the sufficiency of the evidence should be by motion for acquittal under Rule 29; a claim of errors at the trial should be made by motion for a new trial under Rule 33; and defects of form in the indictment, information or complaint must be raised before trial by motion under Rule 12.

The words "on motion of a defendant" are intended to make clear that the court may act only pursuant to a timely motion by the defendant, and may not act on its own motion as in Rule 12. It is noted that under Rule 12 the court on its own motion may dismiss for lack of jurisdiction or for failure to charge an offense, while under this Rule, a prior motion is clearly required.

A motion for arrest of judgment should ordinarily be made in writing (see Rule 47 and Explanatory Note) and served upon the parties and filed Rule (see Rule 49 and Explanatory Note). The grounds for the motion may be stated in the language of the Rule (see Official Form 24, Federal Rules of Criminal Procedure, 18 U.S.C.A.).

The effect of a motion in arrest of judgment if granted is equivalent to dismissal of the indictment, information or complaint against the defendant. Arrest of judgment for lack of jurisdiction should by definition bar further prosecution, while arrest of judgment for failure to charge an offense may be followed by refiling another charging instrument.

Mr. Sand MOVED adoption of Rule 34 as read. Seconded by Mr. Persinger. Motion CARRIED unanimously.

Consideration of Explanatory Note:

Mr. Sand MOVED adoption of the Explanatory Note to Rule 34. Seconded by Judge Glaser.

In discussion, Judge Glaser asked why in line 1 of paragraph 2 the word "district" is contained in brackets. Mr. Sand stated that the first sentence of paragraph 2 is taken from Wright, Federal Practice and Procedure. Mr. Travis referred to .34.02 of Moore's, from which the language is adopted. Mr. Vogel suggested retaining only the third sentence of the paragraph.

Judge Glaser MOVED to delete in paragraph 2 of the Note, the two sentences beginning "In granting...", and striking the word "Therefore" in the last sentence, beginning that sentence with "An attack...". The motion CARRIED.

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Judge Erickstad questioned paragraph 3. He suggested deleting that paragraph and inserting in lieu thereof, "See 8A Moore's Federal Practice, Chapter 34, Arrest of Judgment." He MOVED to delete the paragraph and insert in lieu thereof language from U.S.C.A., Supp., page 108. The effect of the motion is to substitute in line 1, the word "added" for "included", to insert a period after the word "defendant" in line 2, and to delete the rest of the paragraph, including instead reference to "See 8A Moore's Federal Practice, p. 34-1 (Cipes, 2d Ed. 1972)." Seconded by Mr. Sand, who noted the first paragraph of the 1966 Committee Note to Rule 33 (U.S.C.A. Suppl. Pamphlet). Judge Erickstad continued his MOTION to include also reference to see the 1966 Committee Note to Rule 33. The motion CARRIED.

It was noted that the reference to Moore's in the Source notes must be corrected. Judge Glaser stated that he felt the last sentence of the Explanatory Note is misleading. Judge Muggli MOVED to delete the last paragraph of the Explanatory Note and to amend the Sources to include .34- 02 of 8A Moore's. Vote was taken and the motion CARRIED.

STATUTES AFFECTED

Considered:

29-25-01 Judge Glaser felt Section 29-25-01 ("Motion in arrest of judgment" defined.) should be superseded. Mr. Sand MOVED to list Section 29-25-01 as Superseded. Seconded by Judge Muggli. CARRIED without objection.

29-25-03 Mr. Sand MOVED to move Section 29-25-03 (Form and contents of motion -- Entry in minutes.) from Considered to Superseded. Seconded by Judge Muggli. CARRIED unanimously.

29-25-05 no objection

29-25-06 no objection

Superseded:

29-25-02 no objection

29-25-04 no objection

Mr. Sand MOVED Rule 34 and its accouterments be adopted. Seconded by Mr. Persinger. CARRIED unanimously.

WEDNESDAY, December 13

Called to order at 9:00 a.m. with the following members present: Judge Erickstad, Judge Muggli, Judge Pearce, Mr. Persinger, Mr. Sand, and Mr. Shaft as Acting Chairman. It was noted that Mr. Vogel and Judge Glaser were expected to arrive later. The following staff were present: Mr. Travis, Mr. Jacobson and Miss Fischer.

RULE 35

Consideration of Rule 35, Correction or Reduction of Sentence. [adopted September 27, 1968] Roger Persinger, sponsor. No change. See ABA Comparative Analysis, page 19.

Mr. Persinger read the Rule together with the Explanatory Note.

Rule 35. Correction or Reduction of Sentence. [adopted 9/27/68]

The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.

Proposed Explanatory Note

Rule 35 is an adaptation of Rule 35 of the Federal Rules of Criminal Procedure with the only modification in language -- the addition of the word "sentencing" to modify court. This is intended to make perfectly clear that only the court which rendered judgment may correct an illegal sentence.

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The Rule encompasses two forms of relief: reduction of sentence, and correction of a sentence either illegal in form or manner of imposition. In either instance: (1) it is presupposed that the conviction upon which the sentence has been imposed is valid; (2) the court is empowered to act on its own motion; and (3) the sentencing court is prohibited from acting during the pendency of the appeal (through the U.S. Supreme Court).

The motion for reduction of sentence is essentially a plea for leniency -- the court is simply asked to reconsider its prior determination. It must be made in writing (see Rule 47) within 120 days after sentence is imposed but if an appeal is taken, the 120-day period commences to run on "receipt of a mandate issued upon affirmance of the judgment or dismissal of the appeal", or within 120 days after entry of any order or judgment of the United States Supreme Court denying review of or having the effect of upholding a judgment of conviction. United States v. Mitchell, (CA 2d, 1968) 392 F.2d 214. [Note: the 120-day period is jurisdictional and may not be enlarged or extended for any reason (see Rule 45(b).]

It is to be noted that the clearest instance of illegality in a sentence is where the court imposes a sentence in excess of the maximum term authorized under the statute violated. The rule is that such a sentence is void as to the excessive portion but valid to the extent of the maximum sentence. The court may not increase or make more severe the valid portions of the sentence originally imposed if service of the legal portion has already commenced. [For a discussion of Federal Rule 35 in explanation of Habeas Corpus, Coran Nobis, and 28 U.S.C. . 2255 and their effect on Federal Rule 35, see Wright, Federal Practice and Procedure: Criminal, .589-592 (1969).]

Discussion:

Mr. Sand referred to the annotation under Section 12-53-13 citing the case State v. John, 160 N.W.2d 37. Mr. Shaft asked Mr. Persinger to provide case law. Mr. Persinger noted that under this Rule there is no formal hearing on the motion -- there is an application by the defendant which is considered. The U.S. attorney is notified and he may or may not respond. The judge considers and enters, and then the defendant does not have to be present.

Judge Erickstad suggested inserting language in the explanatory note that would show that there is no hearing provided under this Rule and that no appearance is made by counsel or defendant. John Shaft said that no right to appearance exists after sentencing. Judge Erickstad called for an explanation of the language in the explanatory note which says that "The 120-day period is jurisdictional and may not be enlarged or extended for any reason". He said that the 120-day period is a legislatively established limitation.

Judge Muggli MOVED for a consensus of opinion on the 120-day limitation during which the defendant may make application to the effect that: do not change present law, which means that the district court's jurisdiction ends upon the sentencing; therefore do not consider reducing sentence by authorizing courts to do so. Judge Muggli said he feels the law provides sufficient protection, through the governor and the pardoning board, to those who may have received a harsh sentence.

Mr. Sand added that once a judge has sentenced a person, he should be able to consider the matter closed. He said that rehabilitation can begin only when the defendant realizes that he must serve the sentence he received. Mr. Sand stated he felt it would just be a delay of 120 days as far as rehabilitation.

Mr. Persinger suggested deleting the language in the first and second sentences of the Rule which reads, "within the time provided herein for the reduction of sentence. The sentencing court may reduce a sentence..." The time limit is taken from the Federal Rule.

Judge Erickstad suggested that five days may be a reasonable compromise, especially if it is followed through in the legislature by supportive legislation. Mr. Persinger stated he did not think five days is enough time for reflection. He felt 60 days is a reasonable time for consideration. Judge Erickstad suggested 30 days.

The RECORD notes the arrival of Judge Glaser and Mr. Vogel.

Judge Pearce cited the case Jacobson v. United States, 260 F.2d 122 (8th Cir.), and he noted that the Explanatory Note should be amended to omit the language specifying right to a hearing.

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Judge Erickstad MOVED Rule 35 be accepted with change from 120 days to 30 days. Mr. Vogel seconded Judge Erickstad's motion for purposes of discussion. Judge Erickstad noted for the record A.B.A. Sentencing Administration and Procedures, .6.1, A commentary authority to reduce.

Mr. Persinger stated that the applications are very seldom formal motions - - that they come in by letter, etc. Judge Glaser asked if action is required of the judge when he receives such an application (letter) for reduction of sentence. It was noted that the attorney is notified.

Mr. Persinger commented that the Federal system does not have a system comparable to North Dakota, which has a parole board. The federal Bureau of Prisons can't modify or alter a sentence by way of giving early release other than the use the judge makes of a provision giving the board authority, such as it "recommends or authorizes the Bureau of Prisons to grant this person parole at any time". It provides no rigid formula for release.

Mr. Persinger at the request of Judge Erickstad said that the concept of a motion is any application on a piece of paper which is directed to the court. Robert Vogel suggested leaving the 120-day limit for the sake of conformity with the Federal Rules, that this Rule is for the benefit of the court.

Question was called on the motion to change the 120-day limit to 30 days. Vote showed 3 in favor, 4 opposed; the motion FAILS.

Judge Pearce MOVED to readopt Rule 35 as it is presented. Seconded by Judge Glaser. With 5 in favor, 3 opposed, the motion CARRIED.

Discussion of Explanatory Note:

Mr. Persinger said that there was no objectionable material in the first paragraph. It was suggested that the parenthesis be removed from the language in the last line of the second paragraph.

Judge Erickstad suggested substantiating the language in paragraph 3 with Wright's Federal Practice and Procedure as authority. Mr. Persinger suggested deleting paragraph 3 of the Note and inserting instead quotes from Wright, as follows.

"This motion 'is essentially a plea for leniency and presupposes a valid conviction.' [Poole v. United States, (CADC 1957) 250 F.2d 396, 401 and United States v. Ellenbogen, (C.A. 2d, 1968) 390 F.2d 537, 543] This plea for leniency is addressed to the discretion of the sentencing court, and may be granted if the court decides that the sentence originally imposed was, for any reason, unduly severe." 2 Wright, Federal Practice and Procedure: Criminal, .586, p.568.

"Ordinarily a court is not required to hear testimony or arguments on a motion for reduction of sentence. This is discretionary with the district court. [Jacobsen v. United States, (C.A. 8th, 1958) 260 F.2d 122] If the court does decide to reduce the sentence, the defendant need not be present nor need he be allowed to make a statement in his behalf before the reduced sentence is imposed." 2 Wright, Federal Practice and Procedure, .586, pp. 570-571.

It was noted to amend the source notes accordingly.

"A motion for reduction of sentence should be made on written papers (Rule 47), but in the case of pro se requests by prisoners, the court will entertain the request although contained in an informal letter from the prisoner to the sentencing judge." 8A Moore's Federal Practice, Chapter 35, .35.02[l], p.35-5.

Judge Pearce suggested including a statement to the effect that the "trial court need not state its reasons for denying such a motion." John Shaft agreed with the proposal.

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Roger Persinger suggested including the following language from 8A Moore Federal Practice and Procedure, .35.02;

"The 120-day period is jurisdictional -- it may not be enlarged or extended for any reason. It should be noted that the period is not defined as the time in which the motion may be made, but is rather the time in which the court may act. Technically, this permits the court's failure to act upon a motion, to preclude relief."

8A Moore's, supra, .35.02[2], pp. 35-5 and 35-6.

Judge Erickstad asked if the Committee can by rule extend the time. He noted that the Federal Rules are promulgated by the U.S. Supreme Court, but that the Congress adopts them into law, therefore there is no problem with providing a 120-day period. He said that he would like to see Mr. Persinger and the staff introduce a bill equivalent to this Rule to give the authority to provide by rule extension of time or giving a right. The court takes the view that a time can be reduced but rights cannot be extended.

It was decided that the language with regard to the 120-day period being jurisdictional would be deleted.

Judge Pearce felt the judge need not specify the reasons for the denial. He said that he would like to see language included to that effect, citing U.S. v. Ursini. The language is as follows.

"It is not incumbent upon trial court to state its reason for denying motion for reduction of sentence. [United States v. Ursini, (D.C. Conn., 1968) 296 F.Supp. 1152]" 2 Wright, Federal Practice and Procedure, .586, p.131 of 1971 pocket part.

Mr. Travis questioned whether the North Dakota legislature would adopt the Rules. Judge Erickstad said no.

It was noted that the spelling of "Coram Nobis" should be corrected in the last paragraph of the Explanatory Note.

The following two quotes should be included in the Note with the other two cites from Wright:

"An excessive sentence is void only as to the excess, and is to be corrected, not by absolute discharge of or new trial for the prisoner, but by an appropriate amendment of the invalid sentence by the court of original jurisdiction."

2 Wright, supra, .582, p.559.

"A sentence by a court having jurisdiction of the person and the offense committing a person to an authorized penal institution but for a term in excess of what the law permits is not void as to the period of lawful imposition, but void only as to the excess beyond that which could have been lawfully imposed."

Syllabus 2 of Waltman v. Austin, 142 N.W.2d 517 (N.D. 1966).

Source notes must be corrected to show the additional citations.

STATUTES AFFECTED

Considered:

12-06-08 no objection

Chapter 12-53 no objection

Mr. Sand referred to the case Davis v. Riedman, 114 N.W.2d 881 (N.D. 1962), "...but order for discharge is ordinarily withheld and order made for transfer of prisoner to proper prison or opportunity given for correction of sentence by trial court which imposed it.", in the concept of improper illegal sentence.

Chapter 29-26 no objection

40-18-13 Judge Pearce questioned why Section 40-18-13 (Suspension of sentence.) is listed. Mr. Sand agreed that it is not germaine. Judge Muggli and Mr. Persinger felt that it is alright to leave the section in the list of Considered Statutes.

no objection

Cross Reference:

Judge Muggli MOVED to delete the cross reference to Waltman v. Austin, 142 N.W.2d 517 (N.D. 1966), because it is quoted in the body of the Rule. Seconded by Mr. Persinger. CARRIED unanimously.

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Mr. Sand suggested including Davis v. Riedman. Mr. Persinger MOVED that the case Davis v. Riedman, (N.D. 1962) 114 N.W.2d 881 be listed as a cross reference in Rule 35 Explanatory Note. Seconded by Mr. Sand. CARRIED.

Mr. Persinger MOVED to adopt the Explanatory Note to Rule 35 as amended.Seconded by Mr. Vogel. Motion CARRIED with 6 in favor, Mr. Sand and Judge Muggli opposed.

RULE 36

Consideration of Rule 36, Clerical Mistakes. [adopted September 27, 1968] Roger Persinger, sponsor. No change. No comparable Standard.

Mr. Persinger read Rule 36 and the Explanatory Note as follows.

Rule 36. Clerical Mistakes. [adopted 9/27/68]

Clerical mistakes in judgments, orders, or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

Proposed Explanatory Note

Rule 36 is adapted from and contains language identical to Rule 36 of the Federal Rules of Criminal Procedure. The Rule is also similar to Rule 60(a) of the North Dakota Rules of Civil Procedure and provides for correction of clerical error "at any time".

Rule 36 is limited in scope to the correction of "clerical mistakes" or "errors ... arising from oversight or omission". [As to the difference between "oversight" and "clerical error" see Nicholson v. United States, C.A. 9th (1962), 303 F.2d 161.] The rule does not apply to the correction of errors of substance, such as a sentence or a conviction improperly obtained. A clerical mistake involves a failure to record accurately a statement made or action taken by the court or one of the parties.

Under Rule 36, clerical errors may be corrected by the court on its own initiative or on motion of one of the parties.

The evidentiary basis for correction under this Rule may be derived from various sources [such sources as "the official transcript, judges notes, probation report, clerks notes, and docket entries" Kennedy v. Reid (CADC, 1957), 249 F.2d 492]. The recollection of the trial judge is also a basis for correction [Fitzgerald v. United States, (C.A. 5th, 1961), 296 F.2d 37].

Mr. Persinger MOVED readoption of Rule 36. Seconded by Judge Muggli. CARRIED without objection.

Discussion of Explanatory Note:

Judge Erickstad suggested including sources of paragraphs 2 and 3 (8A Moore's Federal Practice). Mr. Persinger MOVED adoption of the Explanatory Note with the suggested changes to show Moore's as the source. Motion seconded by Judge Muggli.

Mr. Persinger stated that he would prefer not to include the case of Enderlin Farmers' Store Co. v. Witliff, (N.D. 1928) 217 N.W. 537, as given in the correction sheet.

Judge Pearce asked the Committee if it wished to show in the Rule that application can be made only to the sentencing court. It was decided to continue paragraph 3 of the Explanatory Note with the sentence, "However, only the sentencing court may correct clerical error." Accardi v. Blackwell, (CA 5th, 1969) 412 F.2d 911.

Mr. Persinger AMENDED his motion to include the preceding statement and citation in paragraph 3 of the Explanatory Note. Motion to adopt CARRIED.

It was noted that all references to Moore's must be corrected to show chapter and section.

Mr. Travis related that Fred Saefke had contacted him asking whether any action had been taken with respect to trial de novo in municipal court. It was the consensus of the Committee that the reply to the question should be that

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the municipal courts, being courts not of record, should not at this time be made such, therefore a trial de novo is a requirement. It was suggested that Mr. Saefke prepare legislation that he feels appropriate and present it to the legislature.

Mr. Persinger MOVED to adopt Rule 36 and the Explanatory Note. Seconded by Judge Muggli and Mr. Vogel. Motion CARRIED unanimously.

The Committee RECESSED at 12:00 noon, scheduled to reconvene at 1:30. Mr. Sand informed the Committee that due to a commitment, he would be late returning.

The Committee RECONVENED at 1:30 p.m. with the following members present: Judge Erickstad, Judge Glaser, Judge Muggli, Mr. Persinger, Mr. Sand, Mr. Shaft, and Mr. Vogel. The following staff were present: Mr. Travis, Mr. Jacobson, Miss Fischer. Mr. Shaft was Acting Chairman. Judge Pearce arrived at 2:00.

Consideration of Rule 37, Appeals, was delayed until the sponsor could be present.

RULE 38

Consideration of Rule 38, Stay of Execution and Relief Pending Review. [adopted May 16, 1969; July 10, 1969] Subdivision (c) modified. Judge Muggli, sponsor. ABA Comparative Analysis, page 25.

Rule 38 and its Explanatory Note were presented as follows.

Rule 38. Stay of Execution(((,))) and Relief Pending Review.

(a) Stay of Execution.

(1) Death. [adopted 5/16/69]

A sentence of death shall be stayed pending the determination of any appeal or other review by an appropriate court of this state.

(2) Imprisonment. [adopted 5/16/69]

A sentence of imprisonment shall be stayed if an appeal is taken; the defendant is admitted to bail or released on his own recognizance; and there is filed with the court in which the conviction was had a certificate of the judge who presided at the trial, or of a judge of an appropriate appellate court, that in his opinion there is probable cause for the appeal.

(3) Fine. [adopted 7/10/69]

A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by the trial court upon such terms as the court deems proper. The trial court may require the defendant pending appeal to deposit the whole or any part of the fine and costs with the clerk, or to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.

(4) Probation. [adopted 5/16/69]

An order placing the defendant on probation shall be stayed pending the determination of any appeal or other review by an appropriate court of this state.

(b) Bail.

Admission to bail upon review shall be as provided in Rule 46(c) of these rules.

(c)(((Application for Relief Pending Review)))

Release Pending Appeal from a Judgment of Conviction.

(((If application is made to a judge of the appropriate appellate court for bail pending appeal or for an extension of time for filing the record on appeal or for any other relief which might have been granted by the trial court, the application shall be upon notice and shall show that application to the trial court is not practicable or that application has been made and denied, with the reasons given for the denial, or that the action on the application did not afford the relief to which the applicant considers himself entitled.)))

Application for release after a judgment of conviction shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, such court shall state in writing the reasons for the action taken. Thereafter if an appeal is pending, a motion for release or for modification of the conditions of release, pending review may be made to the appellate court. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The appellate court may order the release of the appellate pending disposition of the motion.

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Proposed Explanatory Note

Rule 38 is an adaptation of Rule 38 of the Federal Rules of Criminal Procedure. The Rule provides the court with the power to stay execution of sentence and permits the defendant to avoid imposition of sentence pending determination of his appeal [see Corey v. United States, 84 S.Ct. 298, 301, 373 U.S. 169, 172, 11 L.Ed. 229 (1969)]. The Rule does not impinge on the authority of executive reprieve as provided in Section 76 of the State Constitution.

Subdivision (a)(1) is similar to its federal counterpart. It continues existing law in providing that a sentence of death is automatically stayed by the taking of an appeal [see Section 29-28-13, NDCC].

Subdivision (a)(2) requires three conditions to be met before a stay of imprisonment will be granted: first, an appeal must be taken; second, the defendant must be eligible for release pursuant to Rule 46; and third, there must be filed a certificate signed by the judge stating that there is probable cause for the appeal. The requirement that a certificate of probable cause be filed follows existing state law and is a distinguishing feature from the Federal Rule [Rule 38(a), FRCrimP]. The fact that the defendant has an option in securing the certificate of probable cause from either the trial or appellate judge (including the Supreme Court) precludes the possibility of prejudice.

Subdivision (a)(3) permits the stay in payment of a fine upon such terms as are set up by the trial court. If the fine is paid, an appeal from the judgment imposing a fine only, the appeal may be dismissed because the issues become moot. [United States v. Bohling, (C.A. 6th, 1968) 399 F.2d 305.] The court is not required to impose terms as a condition to stay the fine, but if it exercises that prerogative, it may require the defendant to deposit all or part of the fine with the court or it may require the defendant to give bond for the fine or may order him to submit to an examination of his assets, and make an appropriate order to restrain him frown dissipating them.

Subdivision (a)(4) is in the same language of the Federal Rule and provides that a sentence of probation is automatically stayed if an appeal is taken. The court may not offer to put the defendant on probation on the condition that he refrain from taking an appeal. Such an action has been held as an infringement of the defendant's free and unfettered exercise of his right to appeal [Worcester v. C.I.R., (C.A. 1st, 1966) 256 F.Supp. 244, 254].

Subdivision (c) follows the language of Rule 7(b) of the N.D. Rules of Appellate Procedure with certain modifications for applicability to lower court appeals. This subdivision regulates procedure for review of an order respecting release at a time when the jurisdiction of the appeals court has already attached by virtue of an appeal from judgment of conviction. Not- withstanding that the jurisdiction has passed to the appeals court, it is the trial court which makes the initial determination of whether a convicted defendant is to be released pending the appeal. Upon denial of release by the trial court, the judge of court to which the appeal is taken has the power to effect a release on motion as an incident to the pending appeal.

Judge Muggli noted that there are no changes recommended for 38(a).

In discussion, Mr. Sand noted Sections 29-28-13, -14, -15 and especially 29-28-16, which states "An appeal ... does not stay the execution of the judgment in any case not capital unless bail is put in..." Mr. Sand MOVED for consensus of opinion on whether Rule 38 should be amended to eliminate probable cause. On the subject Mr. Sand said that from the best evidence he could gather, the request for the certificate of probable cause was made on very rare occasions. He said further that as a practical matter, no judge denies the issuance of a certificate of probable cause because if such a denial is made, a request is then made to an appellate court, which usually grants the certificate if there is the slightest justification. He concluded, therefore, that to include such a requirement is a futile exercise and consideration of such requirement should be deleted.

Judge Erickstad stated that the court feels that they are not in a very good position to deny a certificate of probable cause since they have none of the record before them and feel that it would be a great injustice to the individual if he is denied release, then, after he has served time, his conviction is overturned.

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Judge Muggli said that while he agreed with Mr. Sand's proposition, he felt that there are a sufficient number of cases which could be considered outright frivolous appeals, thus the judge should have a discretionary tool to express his sentiments on the subject. He said that such a practice does serve a purpose in that it would discourage some frivolous appeals which would otherwise be made.

Reference was again made to Sections 29-28-13, -14, -15, and -16, dealing with present North Dakota law on certificate of probable cause.

Judge Glaser seconded the motion and the motion CARRIED, with Judge Muggli opposed.

The RECORD notes the arrival of Judge Pearce.

Mr. Sand read the proposed amendment to Federal Rule 38(a)(2) [see page 37 of House Document No. 92-285]. It follows.

(2) Imprisonment. A sentence of imprisonment shall be stayed, if an appeal is taken and the defendant is admitted to bail released pending disposition of appeal pursuant to rule 9(b) of the Federal Rules of Appellate Procedure. **

Judge Muggli MOVED amendment of 38(a)(2), imprisonment, to read as follows; "A sentence of imprisonment shall be stayed if an appeal is taken and the defendant admitted to ball or released on his own recognizance." The motion includes the adoption of 38(a)(1), (2) as amended, (3) and (4). Motion was seconded by Mr. Sand.

See Rule 46(c), Release Pending Sentence and Notice of Appeal, of the N.D. Criminal Rules. Reference was made to Section 29-08-06, NDCC (Bail on appeal after conviction.).

Judge Muggli suggested (a)(2) be amended to read in line 2, "the defendant is released pending disposition of appeal pursuant to Rule 9(b) of the N.D. Rules of Appellate Procedure." In discussion, Judge Erickstad suggested substituting the entire language of Appellate Rule 9(b) for 38(a)(2). Mr. Sand expressed agreement. Judge Muggli suggested making reference to 9(b). Judge Erickstad favored including the language of 9(b). Mr. Shaft felt the Committee could adopt the original Federal Criminal Rule language, with minor changes. To that, Judge Erickstad suggested using only the first sentence of the present Federal rule, and changing the reference to 9(b) of our [N.D.] rules. It was noted that use of the word "bail" should be avoided.

Judge Muggli MOVED to amend 38(a)(2) to read as follows; "A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is released pending disposition of appeal pursuant to Rule 9(b) of the North Dakota Rules of Appellate Procedure." Second by Mr. Sand.

The second full paragraph on page 38 of House Document No. 92-285 explains why in the Proposed Federal Rules, "shall" was changed to be discretionary;

Having the defendant on probation during the period of appeal may serve the objectives of both community protection and defendant rehabilitation. In current practice, the order of probation is sometimes stayed for an appeal period as long as two years. In a situation where the appeal is unsuccessful, the defendant must start under probation supervision after so long a time that the conditions of probation imposed at the time of initial sentencing may no longer appropriately relate either to the defendant's need for rehabilitation or to the community's need for protection. The purposes of probation are more likely to be served if the judge can exercise discretion, in appropriate cases, to require the defendant to be under probation during the period of appeal. The American Bar Association Project on Standards for Criminal Justice takes the position that prompt imposition of sentence aids in the rehabilitation of defendants..."

Judge Muggli AMENDED his motion to change the language of subsection (4), Probation, to that of the Federal Rule (see page 37 of H.D. 92-285). Motion CARRIED unanimously.

The Explanatory Note, paragraphs 1 through 5 were considered. Judge Muggli noted that paragraph 3 [on subsection (a)(2)] and paragraph 5 [on subsection (a)(4)] must be amended. He proposed the following language to be substituted;

"Subsections (a)(2) and (a)(4) are substantially the same as the

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Federal Rule. Provision for change of place of confinement as set out in the Federal Rule was not included in this rule since the geographical problems are not the same."

Mr. Travis suggested the advisability of including language from the Advisory Note of the Federal Rule. Judge Muggli replied that the rule is sufficiently clear without the necessity of explanation.

Judge Muggli MOVED to adopt Explanatory Note paragraphs 1-5 as amended. Seconded by Mr. Sand.

Subdivision (b) of the Rule was considered. It was noted that it should now correctly read, "... as provided in Rule 46(d) of these rules."

Discussion returned to the Explanatory Note, paragraph 4, re subsection (a)(3). Judge Glaser questioned its value. There was considerable discussion and it was felt that the explanatory note was not accurate. Judge Muggli MOVED to delete the paragraph beginning "Subdivision (a)(3) ..." and to include in the paragraph proposed above reference to "(a)(3)".Seconded by Mr. Sand. Motion to adopt the Note as amended CARRIED.

John Shaft noted that the "problem" still has not been solved. He suggested changing the word "may" to "must" in line 2 of 38(a)(3). There was considerable discussion on the point. The question was to the reference in the explanatory note as originally presented -- that is, the sentence "If the fine is paid, an appeal from the judgment imposing a fine only, the appeal may be dismissed because the issues become moot."

Judge Erickstad questioned the language of subdivision (c). He questioned the reference in the Explanatory Note to N.D. Appellate Rule 7(b). It was noted that the numbering was changed by the Supreme Court since they were presented.

Judge Pearce researched the question of mootness which had been raised. He cited Seabin v. New York, a 1967 New York case, noting that it was not much help but that the conclusion he had reached was that a criminal case is never moot.

It was pointed out that in the Federal Rules, both subdivision (b) and subdivision (c) were abrogated as of July 1, 1968. Mr. Travis noted that the reason for including these provisions is that under the North Dakota Rules, provision will be made for appeal.

Judge Erickstad suggested deleting the language for subdivisions (b) and (c) and inserting in lieu thereof "reserved for future use". Judge Muggli MOVED to delete the language of subdivisions (b) and (c) and to insert in lieu thereof "reserved for future use". included in the motion is deletion of the reference to subdivision (b) and (c). Seconded by Mr. Persinger. The vote was called and the motion CARRIED.

STATUTES AFFECTED

Considered:

12-50-06 no objection

29-28-12 no objection

Superseded:

29-28-09 no objection (The draft as presented should be corrected to read superseded by Rule 37.)

29-28-13 no objection

29-28-14 no objection

29-28-15 no objection

29-28-16 no objection

29-28-17 no objection

33-12-36 & 33-12-37 These two statutes are superseded by Rule 46 (Release from Custody) but are no longer applicable under this Rule as amended. Judge Muggli MOVED to delete reference to Sections 33-12-36 and 33-12-37.Seconded by Judge Pearce. Motion CARRIED.

Cross References:

Cross references to Rule 37 (Appeals) and Rule 46 (Release from Custody) met with no objection.

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Judge Muggli MOVED to adopt Rule 38 and the Explanatory Note as amended (noting correction of the source notes is necessary). Motion seconded by Roger Persinger. CARRIED.

RULE 37

Consideration of Rule 37, Appeals. [adopted July 10, 1969; subdivision (f) adopted November 20, 1971] Paul Sand, sponsor. No change. See ABA Comparative Analysis, pages 19-25.

Rule 37 was presented as follows.

Rule 37. Appeals. [adopted 7/10/69]

(a) How an Appeal is Taken; Notice of Appeal.

Whenever permitted by law, an appeal shall be taken within the time specified in subdivision (b) by serving a copy of a notice of appeal upon the attorney for the adverse party, or upon the adverse party if no attorney appeared of record for him, and filing the notice, with proof of service, with the court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal, designate the verdict, judgment, or order or part thereof from which the appeal is taken, and the court to which the appeal is taken.

(b) Time for Taking Appeal.

An appeal shall be taken within thirty days after reception of the verdict, rendition of the judgment, or the making of the order from which the appeal is taken, except that if a motion for a new trial on any ground other than newly discovered evidence is made within the thirty-day period an appeal from the verdict or judgment may be taken within thirty days after the making of the order denying the motion.

Within five days after the notice of appeal is filed with the court from which the appeal is taken, the clerk of the court, or the judge if there is no clerk, shall transmit to the clerk of the court to which the appeal is taken the notice of appeal, the verdict, the judgment, or any order of the court from which the appeal is taken, the complaint or information, the undertaking on appeal and certificate of probable cause, if any, and all other documents and papers filed in the action, which shall be docketed by the clerk of the appellate court without charge to the appellant.

(d) Designation of Parties on Appeal.

A party appealing shall be known as appellant and an adverse party shall be known as appellee, but the title of the action shall not be changed in consequence of the appeal.

(e) Effect and Scope of Appeal.

An appeal to the Supreme Court, when perfected, transfers the action to such court for review upon specifications of errors of law. An appeal to the district court or to the county court of increased jurisdiction, when perfected, transfers the action to such court for trial anew. An appeal from a judgment of conviction constitutes an appeal from any verdict of guilty upon which the judgment is rendered.

(f) Supervision in Appellate Court. [adopted 11/20/71]

The supervision and control of the proceedings on appeal shall be in the appellate court from the time an appeal is taken, except as otherwise provided in these Rules. The appellate court, at any time after an appeal is taken, may entertain a motion to dismiss the appeal, or for directions to the lower court, or to modify or vacate any order made by the lower court or by any judge in relation to the prosecution of the appeal, including any order fixing or denying bail.

It was noted that Rule 37 of the Federal Rules has been abrogated by the Appellate Rules. It was pointed out that the necessity for retaining Rule 37 in these Rules is the difference in scope between the appellate and Criminal Rules. Rule 37 as proposed is designed to provide for appeals to all courts. It was further pointed out that Rule 37 was adopted for an interim period pending adoption of the Appellate Rules. It was pointed out that it would be improper to have two sets of Rules governing appeals to the Supreme or District Courts. Judge Glaser suggested, as a means for resolving the conflict, that the Rules be parallel insofar as the times and requirements are concerned and for those instances in which the Rules would apply to the same courts.

Mr. Sand suggested that the Rules remain as they are and they would apply as one set of Appellate Rules to the Supreme Court and insofar as appeals to other courts or intermediary courts, Rule 37 could be used to provide the method

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of appeal to lower courts. Judge Glaser replied that the appellate procedure for any court should be basically the same. Judge Muggli noted that the procedure would be different for courts of record as opposed to courts that are not of record.

Mr. Sand then suggested a comparison between Rule 37 and the counterpart to the Appellate Rules. He read a portion from each, noting that there were substantial changes. He suggested as a solution, a change in the heading to read "Appeals to All Courts Except the Supreme Court" and further, that the Explanatory Note contain language indicating that in cases of appeal to the Supreme Court, reference should be made to the Rules of Appellate Procedure. This being acceptable to the members of the Committee, Mr. Sand then began with the consideration of subdivision (a).

Under (a), the time for taking an appeal refers to subdivision (b), which provides for a thirty-day period. Rule 4(b) of the Appellate Rules establishes a ten-day requirement for filing. It was suggested that the thirty-day requirement under subdivision (b) of Rule 37 be changed to tendays for consistency with the Appellate Rules. That change is found in lines 1, 4, and 6 of subdivision (b).

Mr. Sand then read Rule 3 of the Appellate Rules, comparing it with subdivision (a) of Rule 37 and noting the inconsistencies. Mr. Vogel stated that he feels the Federal system, which is in the Appellate Rule, is very much preferable to the present proposed Rule. He said that if the Committee wants to standardize, it would be better to standardize on the Appellate Rules.

Chairman Erickstad asked for the language of the old Federal Rule 37. He said that the Committee had taken out the "clerk feature" and by going back to the language of the "original" Rule 37, the problem would be resolved.

Judge Pearce suggested that 37(b), (c), (d), (e) and (f) be deleted and that Mr. Sand redraft subdivision (a) for presentation on the following day.

Mr. Sand read 37(b) and (a)(2) from the U.S.C.A.;

(b) Taking Appeal to the Supreme Court.

An appeal to the Supreme Court when authorized by statute shall be taken in the manner and within the time prescribed by its rules.

(a)(2) Time for Taking Appeal.

An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a Judgment of conviction may be taken within 10 days after entry of the order denying the motion. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. An appeal by the government when authorized by statute may be taken within 30 days after entry of the judgment or order appealed from.

He also read from Rule 4 of the Appellate Rules;

(b) Appeals in Criminal Cases.

In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment of order appealed from. **

Mr. Sand began paraphrasing Appellate Rule 4(b), "An appeal be taken within 10 days after the announcement of the decision, sentence or order. **" He explained his concern over the language needing revision either to permit the attorneys to serve notice of appeal or if it must be served by the court or clerk of court.

Judge Erickstad suggested language to the effect that "The Rules of Appellate Procedure shall apply except ..." Mr. Sand suggested modifying the Appellate Rules to make them applicable to the courts as Criminal Rule 37. Mr. Sand suggested that the major concern was whether the Committee wants to permit the defendant or state's attorney to deliver the notice of appeal or the clerk.

Judge Erickstad MOVED to delay action on Rule 37 until the next Rules Committee meeting, to allow time for redrafting the Rule. Judge Muggli seconded the motion and the motion CARRIED.

Meeting was RECESSED at 5:00.

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Thursday, December 14

Meeting was called to order by Judge Muggli, Acting Chairman, at 9:15 a.m.

ATTENDANCE

Members Present:
Chairman Erickstad
Hon. Norbert Muggli
Hon. Harry Pearce
Mr. Roger Persinger
Mr. John Shaft
Mr. Paul Sand
Mr. Robert Vogel (arrived 10:00 a.m.)
Hon. Gerald Glaser (arrived 1:45 p.m.)

Staff Present:
Mr. Travis, Mr. Jacobson, Miss Fischer

RULE 41

Consideration of Rule 41, Search and Seizure. [adopted September 18, 1971] John Shaft, sponsor. No substantive changes.

Mr. Shaft read 41 (a) and (b) and its Explanatory Note as follows.

Rule 41. Search and Seizure.

(a) Authority to Issue Warrant. [adopted 9/18/71]

A search warrant authorized by this rule may be issued by a state or federal magistrate acting within or for the territorial jurisdiction wherein the property sought is located or from which it has been removed.

(b) Property Which May be Seized with a Warrant. [adopted 9/18/71]

A warrant may be issued under this rule to search for and seize any (1) evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed.

Explanatory Note

Rule 41 is an adaptation of Rule 41 of the Federal Rules of Criminal Procedure as amended October 1971 and is designed to implement the provisions of Section 18 of the North Dakota Constitution and the Fourth Amendment of the U.S. Constitution, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized." To implement this constitutional protection, the Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 632 (1914) declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures

Subdivision (a) provides that a search warrant may be issued by a magistrate either state or federal, acting within or for the territorial jurisdiction. The provision which permits a federal magistrate to issue a search warrant is the reciprocal of the Federal Rule, which permits a state magistrate to issue a search warrant pursuant to a federal matter. It is contemplated that a search warrant will be issued by a Federal magistrate only upon the non-availability of a state magistrate.

Subdivision (a) does not require that the individual requesting the search warrant can be a law enforcement officer -- this is consistent with existing law because Chapter 29-29, NDCC contains no requirement that the individual requesting the search warrant be a law enforcement officer. There appears to be common law support for the use of the search warrant as a means of getting an owner's property back [see Verm. Am. Code, Code Crim. Proc., Art. 18.03 (1966) Texas]. The primary purpose of the rule, however, is the authorization of a search in the interest of law enforcement and as a practical matter the request for issuance of a search warrant by someone other than a law enforcement officer is virtually nonexistent.

Subdivision (b) describes the property which may be seized with a lawfully issued search warrant. The Rule applies the decision of Warden v. Hayden, 387 U.S. 294 (1967) which authorizes the issuance of a search warrant to search for items of solely evidential value. The protections of the Fifth Amendment against self-incrimination are not infringed, so items which are considered "testimonial" or "communicative" in nature would tend to be inadmissible [Schmerber v. California, 384 U.S. 757 (1966)].

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Mr. Shaft MOVED adoption of 41 (a) and (b). Mr. Persinger seconded.

Mr. Travis suggested the insertion of source cites after the first and fourth paragraphs, as follows;

[8A Moore's Federal Practice and Procedure (Cipes, 2d 1972), Chapter 41 at 41-11; citing Weeks v. United States, supra.] After paragraph 4, insert "See 1972 Advisory Committee Note to Federal Rules."

Judge Pearce MOVED to amend the Explanatory Note to (b) by striking the last sentence, beginning "The protections...", and inserting the paragraph from the Advisory Committee Note (page 43 of H.D. 92-285), which reads as follows;

There is no intention to limit the protection of the fifth amendment against compulsory self-incrimination, so items which are solely "testimonial" or "communicative" in nature might well be inadmissible on those grounds. Schmerber v. California, 384 U.S. 757 (1966).

Motion seconded by Mr. Persinger.

MOTION to adopt 41 (a) and (b) and the Explanatory Note as amended CARRIED unanimously.

The difference in language between the Federal Rule and N.D. Rule 41 was discussed. Judge Pearce MOVED that the language of amended Federal Rule 41(b) be adopted (see page 41 of H.D. 92-285). Seconded by Judge Erickstad. CARRIED without objection.

Mr. Shaft read 41 (c) and its Explanatory Note, as follows.

A warrant shall issue only if the magistrate is satisfied that the grounds for issuing it are established upon probable cause, supported by oath or affirmation, in affidavit form subscribed by the affiant before him or, in the magistrate's discretion, by examination of any person before him. In the latter case, the examination shall be recorded by a court reporter or by recording device and transcribed under the direction of the magistrate. The finding of probable cause shall be based upon (((substantial))) evidence which may be hearsay in whole or in part(((, if there is a substantial basis for believing the source of hearsay to be credible and for believing that there is a factual basis for the information furnished))).

The warrant shall be directed to a peace officer authorized to enforce or assist in enforcing any law of this state. It shall identify the property to be seized and name or describe the person or place to be searched. It shall command the officer to search, within a specific period of time not exceeding 10 days, the person or place named or described for the property specified. It shall also designate the magistrate to whom it shall be returned.

The warrant shall be served in the daytime, unless the warrant directs that it may be served at any time. Reasonable cause having been shown, the magistrate, by appropriate provision in the warrant, may authorize its execution at times other than daytime.

Proposed Explanatory Note

Subdivision (c) follows existing North Dakota law in establishing, as a prerequisite for the issuance of a search warrant, a finding of probable cause which must be supported by oath or affirmation. The Rule goes further in following the Federal Rule which permits the finding of probable cause to be based upon hearsay [see Jones v. United States, 362 U.S. 257 (1960); Spinelli v. United States, 393 U.S. 410 (1969)]. The provision for hearsay requires that the hearsay evidence be established as credible (truthful) and reliable (that the information has a factual basis upon which it is founded). The language is similar to Rule 4. See Explanatory Note for further discussion.

The provision for the examination of the affiant before the magistrate is intended to assure the magistrate an opportunity to make a careful decision as to whether there is probable cause based upon legally obtained evidence. The requirement that the testimony be recorded by a reporter, if available, and if no reporter is available, then by use of a recording device at the direction of the magistrate, is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed.

The language in subdivision (c), "reasonable cause having been shown", intended to explain the necessity for executing the warrant at a time other than the daytime. This provision is intended to be a substantive prerequisite to the issuance of a warrant that is to be executed at a time other than daytime, although it is not necessary that the quoted language ("reasonable cause having

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been shown") be incorporated in the warrant. The term "daytime" is defined in subdivision (h) of this Rule.

The 10-day execution period means that the officer shall serve the warrant, as soon as possible, within the 10-day limit.

In discussion, Judge Erickstad suggested that Giordenello is the basic case in this area. Written affidavit was discussed. North Dakota case of State v. Iverson was referred to, involving search and seizure. Judge Muggli said that having an affidavit in written form shouldn't be a requirement -- it should be the magistrate's discretion by examination -- that the discretion is a practical thing and should be retained. He continued that he would like to amend the Rule to allow oral testimony in addition to the affidavit.

Paul Sand made a bid for flexibility with respect to timeliness in application because, he said, in most cases, the law enforcement people are working under tremendous pressure, that to require such precision from them when it takes the highest court weeks and months, after long deliberation and argument from counsel and having the benefit of briefs, even then coming up with split decisions -- yet to expect an officer at a moment in the heat of activity to come out with a prime document, is not in the best interests of good law enforcement or justice.

Judge Erickstad suggested adopting the language of Federal Rule 41(c), "and made part of the affidavit."

Judge Muggli suggested that his preference for such a Rule would not include the requirement of an affidavit. He said that based on the nature of the requirement, that is, the urgency involved, it should be permissible to bring the police officer in with the court reporter and any witnesses to testify, and on that basis the judge should make the determination of probable cause. He said that as a practical matter, it is difficult in most instances to locate the state's attorney for an affidavit in an emergency. He added that it is sufficient to have sworn testimony in lieu of the affidavit so that there is some basis for record. He said that the problem with the case State v. Erdman, 170 N.W.2d 872, as previously mentioned by Judge Erickstad, was that the emergency nature of that particular case required the Judge to take testimony in the back of an automobile. There being no record of the proceedings, the case was therefore appealed.

Judge Erickstad read syllabus 5 of State v. Erdman, 170 N.W.2d 872, as follows;

Where a warrant of arrest is issued by a magistrate without his making inquiry of the complaining witness or any other witness whether such person has a reasonable ground to believe that an offense has been committed and that the person to be arrested has committed it, and where the complaint presented to the magistrate contains no affirmative allegations by the one signing the complaint that he has personal knowledge of the matters set out therein, and where the complaint does not state any grounds for the belief by the complaining witness that an offense has been committed by the person to be arrested, and where such magistrate has no facts upon which to base a finding of probable cause, the warrant is invalid.

The RECORD notes the arrival of Mr. Vogel.

Judge Pearce MOVED to insert the words "under oath" in line 4 of subdivision (c), to read "by examination under oath of any person..." Mr. Persinger seconded the motion.

Judge Erickstad read from Chapter 29-29 (Search Warrants), Sections 29-29- 03 (Issued only upon probable cause.) and 29-29-04 (Sworn complaint must be made - Depositions of witnesses.). Judge Pearce reverted to his former position that an affidavit should be required. Federal case law provides that if there is probable cause to believe that a vehicle is about to be moved, no affidavit is required. Mr. Sand referred to the Fourth Amendment, the words "upon probable cause, supported by Oath or affirmation". There was no further discussion of the motion, vote was taken, and the motion CARRIED without objection.

Mr. Shaft suggested the Committee use the language of the Federal Rule, with the necessary modifications. Judge Pearce agreed and MOVED to adopt subsection (c) of the Federal Rule with the necessary grammatical changes to reflect state authority as opposed to Federal. Mr. Shaft seconded. The changes are to use the words "state or federal magistrate" throughout.

Mr. Travis referred to the Minutes of the meeting of September 18, 1971, when the Rule was adopted, noting pertinent discussion.

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Mr. Sand offered a SUBSTITUTE MOTION to act on his proposed language before deciding the above. He MOVED the following amendments to subdivision (c);

"A warrant shall issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before the state or federal magistrate and establishing the grounds for issuing the warrant. If the state or federal magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant, the state or federal magistrate may require the affiant or other witnesses to appear personally and may examine under oath the affiant and any witness he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the proceedings. The warrant shall be directed to a peace officer authorized to enforce or assist in enforcing any law of this state. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a state orfederal magistrate to whom it shall be returned."

Mr. Shaft seconded Mr. Sand's motion. It was noted that the thrust of the motion is that a warrant can be issued without a written affidavit, if sworn to, subscribed and recorded. A vote was taken, however it was unclear as to the results of the vote.

Judge Erickstad raised a question concerning the change from "affidavit" to "proceeding". He questioned how such would be made a part of the proceeding. Mr. Sand said that if his language proved to be a hang-up, he would be agreeable to deleting the entire phrase "and made part of the proceedings", and ending that sentence after the word "equipment".

Judge Pearce noted that if this provision prevails, a change will be required in the form of warrant because the warrant itself recites "upon affidavit" it will require language that "upon affidavit or recorded testimony of ..."

Vote again was taken. Four were in favor and three were opposed. Voting in favor were Sand, Shaft, Muggli and Vogel. Opposed were Erickstad, Pearce and Persinger. Motion CARRIED.

Mr. Sand then MOVED to readopt 41(c) as amended. Seconded by Mr. Shaft. Question was called. The motion CARRIED.

Explanatory Note to 41(c) was considered next. It was noted that an amendment would have to be made to the Explanatory Note. Mr. Travis questioned the effect of the proposed language on Rule 4, Arrest Warrants. Rule 4 provides a requirement of an affidavit under arrest warrants. Judge Erickstad felt that such requirement was not necessary for Rule 41. Mr. Sand proposed an AMENDMENT to subdivision (c) Explanatory Note, as follows;

"Subdivision (c) follows the Federal Rule except that it permits the issuance of a warrant upon sworn recorded testimony without an affidavit [see Jones v. United States, 362 U.S. 257 (1960); Spinelli v. United States, 393 U.S. 410(1969)]. The provision for hearsay requires that the hearsay evidence be established as credible (truthful) and reliable (that the information has a factual basis upon which it is founded)."

The following two paragraphs would remain as they are. Second by Mr. Shaft. CARRIED.

Subdivision (d) and its Explanatory Note were presented as follows.

(d) Execution and Return with Inventory. [adopted 11/18/71]

The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, if he is present, or, if not present, shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or, if not present, in the presence of at least one credible person other than the applicant for the warrant or the person from whose

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possession or premises the property was taken, and shall be verified by the officer. The magistrate shall upon request deliver a copy of the inventory to the person (((from whom or))) from whose premises the property was taken and to the applicant for the warrant.

Proposed Explanatory Note

Subdivision (d) is intended to make clear that a copy of the warrant and an inventory receipt for property taken shall be left at the premises at the time of the lawful search or with the person from whose premises the property is taken if he is present.

Mr. Shaft MOVED readoption of 41(d). Seconded by Mr. Sand. No discussion. Motion CARRIED without objection.

Mr. Shaft MOVED adoption of the Explanatory Note for (d). Seconded by Mr. Persinger. CARRIED unanimously.

Subdivision (e) and its Explanatory Note were presented as follows.

(e) Motion for Return of Property. [adopted 11/18/71]

A person aggrieved by an unlawful search and seizure may move the (((district))) trial court for the (((district))) jurisdiction in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the trial court after an indictment, information, or complaint is filed, it shall be treated also as a motion to suppress under Rule 12.

Proposed Explanatory Note

Subdivision (e) requires that the motion for return of property be made in the trial court and not in a preliminary hearing by a magistrate who issued the warrant. It further provides for a return of the property if: (1) the person is entitled to lawful possession, and (2) the seizure is illegal. However, property which is considered contraband does not have to be returned -- even if seized illegally. The last sentence of subdivision (e) provides that a motion for return of property, made in the trial court, shall be treated as a motion to suppress under Rule 12. The purpose of this provision is to have a series of pretrial motions disposed of in a single appearance [see Rule 17.1 (Omnibus Hearing)] rather than a series of pretrial motions made on different dates causing undue delay in administration.

Mr. Shaft MOVED adoption of 41(e) with the two changes shown. Second by Mr. Vogel. Motion CARRIED.

Mr. Shaft MOVED adoption of the Explanatory Note for (e). Mr. Persinger seconded. Judge Erickstad suggested including the source of the paragraph. Mr. Persinger noted that the source is the Advisory Committee Note, found in House Document No. 92-285, page 45, .3. Mr. Shaft MOVED to add that citation to the Explanatory Note for subdivision (e). Judge Erickstad seconded. Motion to adopt Explanatory Note (e) with its reference CARRIED.

Subdivisions (f), (g) and (h) were presented as follows.

(f) Motion to Suppress. [adopted 11/18/71]

A motion to suppress evidence may be made in the trial court as provided in Rule 12.

(g) Return of Papers to Clerk.

The magistrate before whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of the (((district))) trialcourt (((for the county)))in the jurisdiction in which the property was seized.

(h) Scope and Definition.

This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in this rule to include documents, books, papers and any other tangible objects. The term "daytime" is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m. according to local time.

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Proposed Explanatory Note

Subdivision (f) provides that the motion to suppress shall be made in the trial court in accordance with the provisions of Rule 12.

Subdivision (g) requires that the magistrate before whom the warrant is returned shall file the warrant, inventory and any other papers with the clerk (if there is one) of the trial court.

Subdivision (h) provides for the continuation of the issuance of search warrants in special circumstances not provided for in this rule. Definitions are also provided for the terms "property" and "daylight".

Mr. Shaft MOVED readoption of subdivision (f) of the Rule. Judge Erickstad seconded. CARRIED unanimously.

Mr. Shaft MOVED to eliminate the Explanatory Note for (f). CARRIED. It was noted that subdivision (f) is identical to the Federal Rule.

Mr. Shaft MOVED to adopt 41(g). Judge Erickstad seconded. Motion CARRIED.

Mr. Shaft MOVED to strike the Explanatory Note to (g). Judge Erickstad seconded; CARRIED unanimously.

Mr. Shaft MOVED adoption of subdivision (h). Judge Erickstad seconded and called for the question. The motion CARRIED unanimously.

The Explanatory Note for (h) was considered. Mr. Shaft MOVED to eliminate it. Seconded and the motion CARRIED.

The Committee RECESSED at 12:00 noon. RECONVENED at 1:15 p.m. with Judge Muggli Acting Chairman.

STATUTES AFFECTED -- Rule 41

Considered:

12-01-07 Mr. Shaft MOVED to strike reference to Section 12-01-07 (Classification of crimes -- "Felony" and "misdemeanor" defined.) under Rule 41. Judge Erickstad seconded. CARRIED.

29-29-06 Mr. Sand MOVED to supersede Section 29-29-06 (Form of search warrant.). Mr. Shaft seconded. There was discussion; the motion CARRIED unanimously.

29-29-08 no objection

29-29-09 no objection

29-29-01 Section 29-29-01 ("Search warrant" defined.) was listed under "Definitions Considered". There was no objection.

Mr. Shaft MOVED to delete the separate subsection entitled "Definitions Considered" and to include those sections in the list of Statutes Considered. Mr. Sand seconded. Motion CARRIED.

Superseded:

29-29-02 no objection

29-29-03 no objection

29-29-04 no objection

29-29-05 no objection

29-29-07 no objection

29-29-10 no objection

29-29-11 no objection

29-29-12 no objection

29-29-13 no objection

29-29-14 Section 29-29-14 (Complaint controverted -- Testimony in writing - - Authentication.) was listed as Considered. Mr. Vogel MOVED to supersede it. Mr. Sand seconded and the motion CARRIED.

29-29-15 superseded without objection

29-29-16 superseded, no objection

Considered:

29-29-17 Mr. Vogel MOVED to supersede Section 29-29-17 (Disposal of property taken on a warrant.). Seconded by Judge Erickstad and by Mr. Sand. Motion CARRIED.

29-29-18 no objection

29-29-19 no objection

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Considered:

29-29-20 no objection

29-29-21 no objection

Chapter 29-29.1 no objection

29-01-14(3) Mr. Vogel MOVED to strike the italicized language, "It is recommended by the Committee that this Section be revised." Judge Erickstad seconded. CARRIED unanimously.

Chapter 19-03.1 listed as Considered. No objection. Sections -32 (Powers of enforcement personnel -- Search warrants.) and -33 (Administrative inspections and warrants.) were noted.

The RECORD notes the arrival of Judge Glaser.

Mr. Shaft MOVED the adoption of Rule 41 and the Explanatory Note. Mr. Sand seconded. Motion CARRIED.

RULE 37

Mr. Sand asked for a consensus of the Committee regarding Rule 37. He asked what direction to take in rewriting the Rule -- having the papers served by the attorney or by the clerk. Judge Erickstad said he would favor the clerk serving the papers. Mr. Vogel MOVED that the procedure on appeal should be to file the papers with the clerk and have the clerk make the service. Mr. Persinger seconded. Judge Erickstad called for the question. Motion CARRIED unanimously.

Rule 37 will be taken up at the next Rules Committee meeting, with as much similarity as possible to the Appellate Rules.

RULE 42

Consideration of Rule 42, Criminal Contempt. [adopted March 13, 1970] Judge Murray, sponsor. See staff proposal for change in language.

With Judge Glaser Acting Chairman, Mr. Vogel presented Rule 42 in the absence of Judge Murray. Mr. Travis referred to Rule 42 as previously adopted and to the staff's proposed Rule 42 (dated 10/12/72) and to the Explanatory Note that was distributed, dated 12/14/72. They follow.

Rule 42. Criminal Contempt. [adopted 3/13/70]

(a) Summary Disposition.

A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

(b) Disposition Upon Notice and Hearing.

A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the prosecuting attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which (((the statute so provides))) the penalty for conviction exceeds 30 days imprisonment or a fine of more than [$250]. He is entitled to admission to bail as provided in (((these rules))) Rule 46. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt, the court shall enter an order fixing the punishment.

Proposed Explanatory Note

Rule 42 is an adaptation of Rule 42 of the Federal Rules of Criminal Procedure and follows closely the provisions of North Dakota law [Chapter 27-10, NDCC]. The Rule deals with criminal contempt of court as a willful disregard of the authority of the court. [United States v. Wefers, C.A. lst (1970), 435 F.2d 826, requiring willfulness as an essential element of criminal contempt] The objective of the criminal contempt proceeding is the vindication of the authority of the court and the deterrence of similar derelictions.

The real distinction between civil and criminal contempt is in the nature and purpose of that relief. A contempt proceeding is civil if the purpose is

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remedial and intended to coerce the person into doing what he is suppose to do. [Shillitani v. United States, 86 S.Ct. 1531, 1535, 384 U.S. 364, 369- 370, 16 L.Ed.2d 622 (1966)] If the purpose is to vindicate the authority of the court by punishing the wrongdoer, then the proceeding is one for criminal contempt. [In re Osborne, C.A. 9th (1965), 344 F.2d 611] A criminal contempt proceeding need not arise out of a criminal action and a person may be punished for criminal contempt for defying the authority of the court in a civil action [Southern Railway v. Lanham, (C.A. 5th, 1968), 403 F.2d 119].

A further distinction between "direct" and "indirect" contempts is made necessary to determine the method of court action. If the contempt is "indirect" or "constructive", then it can be punished only after notice and hearing, while summary contempt is available in most cases for "direct" contempt.

The power of North Dakota courts to punish for contempt is established by law (see Sections 12-17-24, 27-10-01, 33-10-01 and 40-18-14].

Subdivision (a) provides for summary disposition only when the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The certificate must recite the facts constituting the contempt and must be signed by the judge and entered in the record [for full discussion see Wright, Federal Practice and Procedure: Criminal, .708 (1969)]. The right to punish summarily without notice and hearing has long been recognized [Ex parte Terry, 128 U.S. 289 (1888)] and satisfies the "need for immediate penal vindication of the dignity of the court" for conduct which would break up the trial [Cooke v. United States, 45 S.Ct. 390 (1925).

Two important restrictions upon the court's power of summary disposition are found in subdivision (b). One is the provision which limits the penalty which may be imposed without a jury trial and is consistent with existing law [Section 27-02-10, NDCC]. The provision for jury trial is intended to reflect the notion that the judge may not combine numerous specifications of contempt, penalizing each specified instance with the maximum sentence, and thereby avoid impaneling a jury [United States v. Seale, (C.A. 7th, May 1972) 11 Cr.L. 2166]. The second restriction upon the court's power of summary disposition is that situation in which the contempt is directed personally to the judge or the judge contributed to the contempt or was otherwise involved, in which case the contempt proceedings should be referred to another judge [see ABA Standards for Criminal Justice -- Standards Relating to the Function of the Trial Judge, June 1972, (Use of the Contempt Power)].

Subdivision (b) controls in any case of contempt occurring outside the actual presence of the court and those cases of contempt in the court's presence not covered in subdivision (a). The requirement under subdivision (b) is that notice of the proceedings be given orally by the judge in open court or by an order to show cause or an order of arrest. The notice must state the time and place for the hearing and allow reasonable time for the preparation of the defense. It must state the essential facts constituting the criminal contempt, or if the facts are not known to the judge who is asked to institute the proceeding, they may be presented to him by petition or affidavit.

It is now established that "criminal contempt is a crime in every respect" [Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, also cited in State v. Heath, 177 N.W.2d 751 (1970)] and the constitutional due process protections are applicable to provide defendant with assistance of counsel [Johnson v. United States, (C.A. 5th, 1965) 344 F.2d 401, 411] to be confronted with and cross-examine witnesses [Matusow v. United States,(C.A. 5th, 1956) 229 F.2d 335, 347], to produce evidence [Offut v. United States, (C.A. 5th) 232 F.2d 69], to be admitted to bail (under the provisions of Rule 46), and to trial by jury for serious contempts where the punishment for the contempt exceeds 30 days imprisonment or a fine of more than [$250] (see discussion above).

PROPOSED RULE 42. Criminal Contempt.

(a) Summary Disposition.

A criminal contempt may be punished summarily, if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

(b) Disposition Upon Notice and Hearing.

(1) Form of Notice; Oral or by Court Order.

(((A Criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice.)))

Notice may be given orally, in which case it shall be by the judge in open court in the presence of the defendant. Notice may be by order of the court, either to show cause or for arrest, in which case it shall be on application of the prosecuting attorney [or an attorney appointed by the court for that purpose].

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(2) Contents.

(((The))) [N]otice to the defendant shall (((state))) include the time and place of hearing, allowing a reasonable time for (((the))) preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. (((The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the prosecuting attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest.)))

(3) Hearing; Conduct.

In a prosecution for criminal contempt, the defendant shall be afforded the protection of due process including:

(i) the right to or assignment of counsel pursuant to the provisions of Rule 44;

(ii) (((The defendant is entitled to a))) the right to trial by jury (((in any case in which the statute so provides.))) pursuant to the provisions of Rule 23; and

(iii) (((He is entitled to admission))) the right to be admitted to bail (((as provided in these rules.))) pursuant to the provisions of Rule 46.

If the contempt charge ((d))) involves disrespect to or criticism of (((a))) the judge, that judge (((is))) shall be disqualified from presiding at the trial or hearing, except with the defendant's consent. Upon a verdict or finding of guilt, the court shall enter an order fixing the punishment.

Additional Explanatory Note

An issue concerning the applicability of Argersinger v. Hamlin, 92 S.Ct. 2006 (1972) to criminal contempt has created some consternation especially with respect to Summary Contempt proceedings. On the one hand it would seem that Argersinger precludes any imposition of jail pursuant to a summary contempt sentence for two reasons: first, the Argersinger case applies to any criminal prosecution in which an accused may be deprived of his liberty, and as a prerequisite thereto the defendant/accused must be afforded representation of counsel. [Note: This is interpreted to mean "effective assistance of counsel". Therefore the fact that a contemnor/defendant is represented by counsel, the magistrate would not be permitted to impose summary punishment to include imprisonment without giving counsel reasonable opportunity to prepare a defense. Second, various cases such as Bloom v. Illinois, 391 U.S. 194, and State Heath (N.D. 1970) 177 N.W.2d 775, have declared a criminal contempt to be "a crime in every essential respect".

On the other hand, the argument in favor of summary contempt power to include imprisonment as punishment is very convincing when considering that the contempt power of the court is a fundamental right or power of the court, long recognized as a necessary process to protect the sanctity of the trial which overshadows and is subordinated by the right of the individual to benefit of counsel before imposition of imprisonment as punishment. (But see United States v. Seale, 11 Cr.L. 2164 and others in which the contempt power of the court is being whittled away.]

A person who performed an offensive act before a court may be instantly held guilty of contempt without violating his constitutional rights [Knox v. Municipal Court of Des Moines, 185 N.W.2d 705].

Two factors which must be present to justify departure from ordinary due process norms in finding a person guilty of notice of charges or opportunity to present evidence in defense or mitigation are that the conduct is so disruptive of the court's business that immediate suppression is necessary and that all the elements of the contempt are within the personal knowledge of the judge [Ciraolo v. Madigan, 443 F.2d 314].

Where an offense of contempt is committed in the presence of the court, punishment may be imposed at once, and this power is inherent in and is essential to any court in order that it may be enabled to administer justice. Where an offense is committed in the presence of the court, the proceedings for punishment therefor are criminal in nature but do not constitute a criminal prosecution, and they are for an offense against the courts as an organ of public justice and not a violation of the public law [State v. Jackson, 158 A.2d 166].

Discussion:

Mr. Vogel read parts of the Seale case, stating that the Federal Court involved held that a defendant has a right to a trial by jury where the aggregate sentences for contempt exceed six months or $500. The court also held, Mr. Vogel stated,

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that if the act constituting the contempt involves a direct attack against the judge, a different judge should preside at the contempt hearing if such contempt is not punished summarily. Mr. Vogel then quoted from the Sealecase as follows:

"We accept the following standards suggested by the Government as an accurate statement of the requisites of due process: Defendants have a due process right to defend against the contempt charges and offer a mitigating explanation. Assistance of counsel and the right to a public hearing apply. The presumption of innocence, as in other criminal cases, attaches and all elements of the offense must be proved beyond a reasonable doubt. In addition, the right to compulsory process must be afforded, and Seale may submit evidence, testimony or documentary that is relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed." [At page 372.]

Judge Glaser asked the significance of the word "willful" in the staff's recommended draft. It was noted by the staff that sections 7.1 and 7.2 of the ABA Standards relating to the Function of the Trial Judge include the "willful" language. Judge Glaser pointed out that any criminal act, to be criminal, must be willful, and questioned whether this would be confusing.

Mr. Vogel read (a) as amended and as a handout.

The RECORD notes the arrival of Judge Pearce.

Judge Erickstad suggested revising the proposal along the lines of Sections 7.1 and 7.2(i) of the ABA Standards.

He also read from the headnote and suggested a notation to "see Seale".

Mr. Vogel read from the ABA Standard on Function of the Trial Judge, Part VII, .7.1-.7.5. Judge Erickstad suggested staying with the Federal Rule, as written now, but including in the Explanatory Note the pertinent paragraphs from Seale and those parts of the Standards which pertain, showing the source of citations. Judge Muggli stated he would prefer to wait until the Federal Courts adopt the proposed Standards. Mr. Vogel agreed with Judge Erickstad's position to include part of the Standards because they are not readily available to attorneys.

Mr. Vogel MOVED to adopt Rule 42 as previously approved by the Committee and adding the footnote, "We call attention to the Approved Draft, 1972, 'The Function of the Trial Judge', approved by the ABA House of Delegates in August 1972, as follows; thereafter listing .'s 7.1, 7.2, 7.3, 7.4 and 7.5 verbatim, and further reference to U.S. v. Seale, 461 F.2d 345." Judge Muggli seconded the motion.

Acting Chairman Glaser noted that the newly proposed rule is dropped from consideration as there is no motion. Under consideration is the rule as adopted 3/13/70. Mr. Travis spoke to explain the proposed rule.

Mr. Vogel MOVED adoption of 42(a). Mr. Persinger seconded. Motion CARRIED unanimously.

Mr. Vogel MOVED adoption of subdivision (b) as shown. Judge Pearce seconded. It was noted that a statute provides a fine of $250, but to agree with Rule 23, Rule 42 would have to be changed to provide $500. Judge Erickstad suggested leaving the language "in which the law so provides". Mr. Vogel read from comments in the State v. Heath case (Minot). Section 27-10-02 (Penalty for criminal contempt.) provides "a fine of not more than two hundred fifty dollars". Judge Erickstad suggested the author move to amend the Rule to read, "The defendant is entitled to trial by jury as provided for under Rule 23(a)."

Mr. Vogel MOVED to substitute the words "release from custody" in place of "admission to bail" in line 11 of subdivision(b). Judge Pearce seconded. CARRIED unanimously.

Mr. Vogel MOVED to adopt 42(b) as amended. Judge Pearce seconded. CARRIED unanimously.

Discussion of Explanatory Note:

Mr. Vogel questioned the necessity and pertinence of .3, beginning "A further distinction..." Mr. Persinger pointed out a correction in the last line of paragraph -- "summary contempt" should read "summary punishment". Mr. Vogel MOVED to strike .3 of the Explanatory Note. Judge Muggli seconded. Motion CARRIED without objection.

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Mr. Vogel MOVED to add to the Explanatory Note the boldface text of Standards 7.1 - 7.5, inclusive, of "Standards Relating to the Function of the Trial Judge", August 1972. Motion CARRIED unanimously. Also include cite to U.S. v. Seale, 461 F.2d 345 (7th Cir. 1972).

Mr. Vogel suggested striking in the last paragraph of the Explanatory Note the provision "30 days imprisonment or a fine of more than [$250]". Judge Pearce suggested using the same language as contained in the Rule. Mr. Vogel MOVED to amend the proposed Explanatory Note to include the citation to U.S. v. Seale, and inserting the phrase "where required by Rule 23(a)" in the last paragraph. Judge Pearce seconded. Motion CARRIED unanimously.

Mr. Vogel MOVED adoption of the Explanatory Note. Judge Pearce seconded. Acting Chairman Glaser referred to paragraph 4, the last line, which should read "disrupt the trial" and not "break up".

Judge Erickstad suggested an evening meeting. Action was deferred.

Mr. Sand MOVED to delete the language "for conduct which would disrupt the trial" from paragraph 5, the last sentence, after the word "court". Judge Pearce seconded.

Mr. Vogel MOVED adoption. Judge Pearce and Mr. Persinger seconded. Motion CARRIED unanimously.

STATUTES AFFECTED

Considered:

12-17-24 no objection

12-17-25 no objection

27-10-01 no objection

27-10-02 no objection

27-10-06 Mr. Shaft MOVED that Section 27-10-06 (Contempt committed in presence of judge punishable summarily -- Order imposing punishment.) be superseded. Judge Pearce seconded. CARRIED. In discussion, it was noted that Section 27-10-06 may be superseded only so far as criminal process. It was noted that Section 27-10-03 sets out criminal contempts (Acts punishable as civil contempts.).

Mr. Vogel MOVED that Sections 27-10-06 through 27-10-20 be superseded as to criminal contempts. Judge Pearce seconded. Mr. Vogel suggested he would move that Chapter 27-10 is superseded as to criminal contempts, but that 27-10-02 (Penalty for criminal contempt.) must remain.

MOTION to supersede as to criminal contempts Chapter 27-10, except Sections 27-10-01 and 27-10-02. Judge Pearce seconded. There was a call for the question and the motion CARRIED unanimously.

27-20-55 Listed as Considered. No objection.

Chapter 33-10 Mr. Vogel MOVED that Chapter 33-10 except Section 33-10-01 (Contempt -- Acts constituting.) be superseded as to criminal contempts.Judge Pearce seconded. Mr. Persinger called for the question. Motion CARRIED unanimously.

40-18-14 no objection

Mr. Vogel MOVED adoption of Statutes Affected. Judges Muggli and Pearce seconded. CARRIED.

Mr. Vogel made the grand shotgun MOTION to adopt Rule 42 and its Explanatory Note. Judge Pearce seconded. Motion CARRIED unanimously.

RULE 43

Consideration of Rule 43, Presence of the Defendant. [adopted May 15, 1969] Judge Ilvedson, sponsor. Amended in accordance with the proposed amendment to Federal Rule, April 1971, and for consistency with Rule 11.

Rule 43 was read by Mr. Sand as follows.

Rule 43. Presence of the Defendant. [adopted 5/15/69]

(a) presence Required.

The defendant shall be present at the arraignment, at the time of the plea,at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as

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otherwise provided by (((these))) this rules. (((In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict and imposition of sentence.)))

(b) Continued Presence Not Required.

The further progress of the trial to and including the return of the verdict shall not be prevented whenever a defendant, initially present,

(1) in noncapital cases, voluntarily absents himself after the trial has commenced, or

(2) engages in conduct which is such as to justify his being excluded from the courtroom.

A defendant need not be present in the following situations:

(1) A corporation may appear by counsel for all purposes.

(2) In prosecutions for offenses punishable [as misdemeanors] [by fine or by imprisonment for not more than one year or both], the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence.

(3) The defendant's presence is not required at a reduction of sentence under Rule 35 (((or at any proceeding in the Supreme Court))).

The Rule was compared to the Federal Rule (1971). In subdivision (c), strike the italicized language "as misdemeanors", retaining the second wordage and eliminating the brackets. Also eliminate the underscore under "may".

Mr. Sand read the Explanatory Note. It follows.

Proposed Explanatory Note

Rule 43 is an adaptation of Rule 43 of the Proposed Amendments to the Federal Rules of Criminal Procedure, 52 F.R.D. 472 (April 1971) and is designed to implement that part of the Sixth Amendment of the U.S. Constitution and known as the "Confrontation Clause" and Section 13 of the North Dakota Constitution, which guarantees the accused the right to be present at the trial and confront his accusers but also recognizes that such right can be constitutionally waived.

Subdivision (a) provides that the defendant has the right to be preserved at the arraignment, at the impaneling of the jury, the return of the verdict and the sentencing; and consistent with existing law, requires his presence with certain exceptions listed in subdivisions (b) and (c). Subdivision (a) includes the phrase "at the time of the plea" in addition to the arraignment (which is the usual and proper time for the acceptance of a plea) for consistency and in conformity with the provisions of Rule 11(e)(2), which provides that the judge may set a time other than the arraignment for accepting a plea pursuant to a plea agreement.

Subdivision (b) differs from existing Rule 43 of the Federal Rules of Criminal Procedure in that it is designed to reflect Illinois v. Allen 397 U.S. 337 (1970), which held that "there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant; (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; or (3) take him out of the courtroom until he promises to conduct himself properly."

Under existing Federal Rule 43, trial in absentia is limited to "voluntary absence [by the defendant] after trial has been commenced", and "can be read as precluding a *** judge from exercising the third option held to be constitutionally permissible in Allen." [Advisory Committee Note to Proposed Rule 43, 52 F.R.D. 472 at page 473.] The language of the Rule is intended to make clear that the judge does have the power to exclude the defendant from the courtroom when the circumstances warrant such action.

The provision in (b)(1) which provides that the defendant's continued presence is not required if the defendant voluntarily absents himself is consistent with State v. Thompson, 219 N.W. 218 (1928), which held that a defendant charged with a felony, who voluntarily absents himself from his trial, has waived the right to be present at the rendition of the verdict.

Subdivision (c) provides for those instances in which the defendant in a prosecution need not be present. Subsection (1) is consistent with current North Dakota law (Section 29-12-12) and permits a corporation to appear by counsel for all purposes. As a practical matter a corporation can appear only by attorney and the only punishment available is fine.

Subsection (c)(2) permits defendants in prosecutions (classified as misdemeanors) (in which the punishment does not exceed a fine or imprisonment for

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more than one year or both) to be absent from the court proceedings. It is emphasized that this provision is discretionary with the court. If the court refuses to accept the defendant's absence from the proceedings, he must then be present to plead to the charge [Rules 11(d) and 43(a)] after which he may voluntarily absent himself in accordance with subdivision (b)(1). Subsection (c)(3) recognizes that requiring defendant's presence at a reduction hearing under Rule 35 may be unduly burdensome and his absence will not unduly prejudice him. This section should not be read to preclude the defendant's presence at such proceeding, however.

Mr. Sand said the Explanatory Note offers a lot of information that is not contained in the Rule. He MOVED Rule 43 and the Explanatory Note be adopted. Mr. Vogel referred to the case Butler v. U.S., which he requested be cited in .5. Judge Glaser noted the words "classified as misdemeanors", contained in parenthesis in line 1 of the last paragraph -- it was agreed to strike.

STATUTES AFFECTED

Superseded:

29-12-12 no objection

29-13-02 no objection

29-14-21 no objection

29-16-03 no objection

29-16-04 no objection

29-16-06 no objection

Considered:

29-16-05 no objection

Superseded:

29-22-11 no objection

29-26-04 no objection

Mr. Travis asked that Section 33-12-23 (Defendant present.) be included among the statutes Superseded. Mr. Shaft MOVED to supersede Section 33-12- 23. Mr. Sand seconded. Motion CARRIED.

Considered:

29-26-11 no objection

Judge Erickstad requested that a full list of statutes affected be prepared for the Committee for the next meeting.

Mr. Sand MOVED to adopt the Rule together with the Explanatory Note and all its accouterments, including the citation to U.S. v. Butler. Seconded by Judge Muggli. No further discussion. The motion CARRIED unanimously.

RULE 11

With Rule 43 was a staff recommendation to amend Rule 11, as follows; In subdivision (d), insert language, "Except as provided in Rule 43(c), [T]he court shall not accept...". Delete subdivision (h).

The need for the change is that Rule 11 provides that the court shall not accept a plea without first addressing the defendant in open court, however under Rule 43 there are exceptions to the Rule, such as where the defendant is a corporation, where the prosecution is considered to be a misdemeanor, in which case the defendant's presence would not be required -- therefore the suggestion for inclusion of the phrase "except as provided in Rule 43" after the word "personally" and before "in open court" in line 2 of subdivision (c) and in line 2 of subdivision (d).

Judge Muggli MOVED to amend Rule 11 to include the language "except as provided in Rule 43(c)". Mr. Shaft seconded the motion. Mr. Sand called for the question; motion CARRIED without objection.

Paul Sand MOVED to readopt Rule 11 as amended. Seconded by Judge Muggli. No further discussion and the motion CARRIED.

Mr. Travis also suggested that in Rule 11, the staff recommends the deletion of subdivision (h), which is now not applicable in light of the amended language. There was no motion from the Committee; therefore subdivision (h) remains.

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RULE 44

Consideration of Rule 44, Right to and Assignment of Counsel. [adopted May 6, 1971] Judge Ilvedson, sponsor. Rule changed in conformity with Argersinger v. Hamlin, 92 S.Ct. 2006 (1972). See ABA Standards, 'Function of the Trial Judge', Part VII, Use of the Contempt Power, Sections 7.1 - 7.5.

A letter from Judge Ilvedson explaining why he was unable to attend was read and accepted with sympathetic understanding.

Rule 44 was presented as follows.

Rule 44. Right to and Assignment of Counsel. [adopted 5/6/71]

(a) Right to Assigned Counsel.

Every defendant who is charged (((with a public offense punishable by imprisonment for more than six months or by a fine of more than $500 and who is unable to obtain counsel,))) in a criminal prosecution, whether felony, misdemeanor or violation of municipal ordinance is entitled to ((court appointed counsel))) be represented by counsel or have counsel assigned to represent him. (((He is entitled to have such counsel assigned to him))) This right, unless waived in writing by the defendant, shall exist at every stage (((of))) in the proceedings from (((his))) the initial appearance before the magistrate (((or the court))) through appeal. (((, unless he waives such appointment. In all other cases in which a defendant is unable to obtain counsel, the court in its discretion may appoint counsel for him.)))

(b) Assignment Procedure.

The court shall appoint counsel to represent a defendant who is:

(1) Unable to pay and the punishment for conviction includes a fine of more than $500; or

(2) Unable to pay and the magistrate has determined that punishment upon conviction MAY include imprisonment; or

(3) Unable to secure the assistance of counsel regardless of ability to pay.

If the court determines that the defendant is unable to pay for (((such))) legal representation without undue hardship, (((the court appointed counsel))) such representation shall be at public expense.

Mr. Sand questioned the stipulation "in writing", in line 7 of subdivision (a). Judge Glaser questioned the proposed language, "in a criminal prosecution, whether felony, misdemeanor or violation of municipal ordinance". Mr. Sand noted the provision contained in .2 of the Explanatory Note, that

"*** no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence." [See Argersinger v. Hamlin, 92 S.Ct. 2006 (1972), in which the Supreme Court acknowledged the holding of the Oregon Supreme Court in Application of Stevenson, 458 P.2d 414, 418]

Mr. Sand suggested the language in subdivision (a) be retained to read, "Every defendant who is charged with a public offense punishable by imprisonment...".

Mr. Persinger read Federal Rule 44 (page 45 of H.D. 92-285) as follows.

Rule 44. Right to and Assignment of Counsel.

(a) Right to Assigned Counsel.

Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner federal magistrate of the court through appeal unless he waives such appointment.

(b) Assignment Procedure.

The procedures for implementing the right set out in subdivision (a) shall be those provided by law and by local rules of court established pursuant thereto.

Mr. Persinger suggested that it would not be necessary to go into any greater detail than the Federal Rule has. Judge Glaser noted that under the Federal Rule, regardless of the nature of the penalty or the offense, the defendant is entitled to counsel. He noted that subdivision (b) of the North Dakota Rule limits the right to assignment of counsel, and noted that there was a policy question as to whether the Committee wished to have the right to counsel absolute or with restrictions.

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A problem as noted by Judge Pearce was that subdivision (a) provides for the right to counsel and for the assignment of counsel in the same subdivision. He felt that such should be treated in different sections.

Considerable discussion followed concerning the proper or proposed language for Rule 44 which would take into consideration all of the necessary aspects including the right to counsel, the assignment of counsel, and the assignment of counsel to an individual who is unable to obtain assistance of counsel regardless of his ability to pay.

Judge Erickstad proposed language for Rule 44 as follows: to continue with the existing title, Right to Assigned Counsel; to utilize the Federal Rule under subdivision (a), as follows.

(a) Right to Assigned Counsel.

Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal including certiori unless he waives such appointment.

Judge Erickstad suggested including in the first line, "Every defendant who is charged with a public offense...". Objection came from the Committee and this phrase was withdrawn.

Judge Glaser pointed out that under the Federal Rule the right to counsel is provided but under the Argersinger case the application is to a constitutional right. Judge Erickstad suggested an addition to his proposal to inform the defendant of the consequences where counsel is not accepted.

Paul Sand continued with proposed language as follows:

"Absent a knowing and intelligent waiver no defendant may be imprisoned for any offense whether classified as petty, misdemeanor, or felony unless he was represented by counsel at his trial."

Judge Erickstad said that this proposal violates his idea of trying to incorporate the case law into a rule. Judge Erickstad suggested that Mr. Sand and Judge Pearce work on proposed language for Rule 44. The proposal of Judge Pearce and Mr. Sand for Rule 44 is as shown:

Rule 44. Right to and Assignment of Counsel.

Absent a knowing and intelligent waiver, every indigent defendant shall be entitled to have counsel appointed at public expense to represent him at every stage of the proceeding from his initial appearance before a magistrate through appeal unless the magistrate has determined that punishment upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at his expense if he is unable to secure the assistance of counsel and is not indigent. (5:30 draft)

Question was raised regarding this proposed draft with respect to a money figure as a limiting factor.

Judge Pearce MOVED to adopt Rule 44 as presented in the 5:30 draft, above.Seconded by Mr. Sand. No further discussion. Question was called and the motion CARRIED with Mr. Vogel opposed.

The Committee looked to Rule 5(c) to determine if any modifications are necessary pursuant to the readoption of Rule 44. It was noted that there is no need.

Judge Erickstad suggested that Judge Pearce and Mr. Sand draft proposed language for the Explanatory Note for Rule 44. Judge Glaser suggested it be based on Argersinger.

FUTURE MEETINGS

The Committee considered the possibility of future meetings. It was noted that a meeting is scheduled for February 20-23. It was felt that one more 3-day meeting should be scheduled.

Judge Muggli MOVED that another meeting be commenced on the 26th of March at 1:00 p.m. through Friday, March 30. Motion was seconded by Mr. Persinger. Vote was taken; the motion CARRIED.

Meeting was RECESSED for the evening.

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Friday, December 15

Judge Muggli called the meeting to order at 9:15 a.m.

ATTENDANCE

Members present were Chairman Erickstad, Judge Muggli, Judge Pearce, Mr. Persinger, Mr. Shaft, Mr. Vogel, and Mr. Sand. Staff present were Mr. Travis, Mr. Jacobson and Ms. Fischer.

Explanatory Note -- Rule 44

The Explanatory Note as drafted by Mr. Sand and Judge Pearce was presented, as follows.

Rule 44 is a modification of Rule 44 of the Federal Rules of Criminal Procedure and governs appointment of counsel and implements the holding of the U.S. Supreme Court in Argersinger v. Hamlin, 92 S.Ct. 2006, 407 U.S. 25, 32 L.Ed.2d 530 (1972). It is understood that the net effect of this rule would require appointment of counsel in all felony cases.

Judge Pearce, commenting on the Explanatory Note, noted that the language "Rule 44 is a modification of Rule 44 of the Federal Rules" is not sufficient in that it doesn't explain the change from the Federal Rule. Judge Pearce then MOVED to amend the Explanatory Note as proposed to include after the first sentence the following: "This Rule would allow appointment of counsel only when so required under the holding of Argersinger whereas the present Federal Rule requires appointment of counsel in all cases."

Mr. Travis questioned the statement that under the Federal Rule, counsel is required in all cases. It was modified to read "appointment of counsel for all indigent defendants."

Reconsideration of Rule

Judge Pearce suggested the following amendment to Rule 44:

"Absent a knowing and intelligent waiver, every indigent defendant shall be entitled to have counsel appointed at public expense to represent him at every stage of the proceedings from his initial appearance before a magistrate through appeal (((unless the magistrate has determined that punishment upon conviction will not include imprisonment))) in all felony cases. Absent a knowing and intelligent waiver, every indigent defendant shall be entitled to have counsel appointed at public expense to represent him at even stage of the proceedings from his initial appearance before a magistrate through appeal in all nonfelony cases unless the magistrate has determined that punishment upon conviction will not include imprisonment.The court shall appoint counsel to represent a defendant at his expense if he is unable to secure the assistance of counsel and is not indigent."

Judge Erickstad suggested that instead of repeating the language, to add a semicolon after the phrase "in all felony cases", and to continue "and in all other cases in which the magistrate has determined that the punishment upon conviction will not include imprisonment." Judge Muggli favored such change. Judge Pearce MOVED to reconsider the action by which the Committee adopted Rule 44 and to amend it to read, in line 4, after "through appeal", "in all felon cases; and in all other cases in which the magistrate...".Motion was seconded. Question was raised regarding what portions of the proposal are intended to modify what other language.

Judge Pearce MOVED to adopt Rule 44 in the language he had previously proposed, above. Mr. Travis questioned the proposed language. Judge Erickstad said that this language most clearly expressed the desired intent of such a rule. Judge Pearce said that the language seems the only way. Paul Sand seconded the motion. No further discussion; vote was taken and the motion CARRIED.

Explanatory Note

The Committee then considered the Explanatory Note as proposed by Mr. Sand and Judge Pearce. Paul Sand suggested deleting the words "and governs" in line 2 and inserting in lieu thereof "governing the", adding a comma after "counsel", and to delete the last sentence, which begins "It is understood...". Mr. Sand MOVED adoption of the Explanatory Note as now amended. Mr. Persinger seconded. CARRIED.

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STATUTES AFFECTED

29-26-21 It was suggested that Section 29-26-21 (Judgment for fine and costs.) be referred to the Legislative Council Code Reviser for supersession. Judge Erickstad raised the question of the problems of the small jurisdiction with respect to the financing available for court- appointed counsel. Discussion centered around various statutes affecting the payment of fees for the appointment of counsel. Judge Erickstad suggested superseding the statute, then relying on the Rules and Supreme Court mandates unless the Committee could recommend or draft legislation to accomplish that objective. Judge Muggli expressed opposition to any more legislative proposals. Judge Erickstad proposed drafting a statute similar to the Rule for adoption by the Legislature. Judge Erickstad explained that the reason for this is that this statute involves expenditure of funds, and as such is a legislative function. It was suggested that this statute be referred to John Olsrud for supersession by the Legislature.

Judge Pearce MOVED to delete reference. Mr. Sand seconded. CARRIED.

Considered:

12-59-15 no objection

29-07-01.1 Mr. Sand noted that Section 29-07-01 is superseded by Rule 5. Judge Pearce MOVED that Section 29-07-01.1 (Appointment of counsel for indigents -- Payment of expenses.) be listed as Superseded. Seconded by Paul Sand. Question was called; motion CARRIED unanimously.

29-20-01 no objection

Mr. Sand suggested that this statute be amended -- that there are few courts today within its compound -- however the Rules Committee's function should not be to amend it.

Superseded:

29-01-06 Mr. Sand MOVED to list Section 29-01-06 (Rights of defendant.) as Considered. Seconded by Mr. Vogel. Question was called. The motion CARRIED unanimously.

29-07-01 no objection (Also superseded by Rule 5)

29-07-04 no objection

29-13-03 no objection (Also superseded by Rule 10) Mr. Sand commented that the last sentence is unconstitutional.

33-12-09 no objection (Also superseded by Rule 5)

Considered:

40-11-12 Judge Pearce felt that Section 40-11-12 (Commitment of guilty person.) should be deleted; it has nothing to do with this Rule. Judge Erickstad suggested taking this up with the code reviser, noting that it has been overruled by Supreme Court decision. Judge Pearce MOVED Section 40-11-12 be deleted from consideration under Rule 44. Seconded by Judge Erickstad and Mr. Persinger. CARRIED without objection.

40-18-12 It was noted that Section 40-18-12 (Commitment for violation of city ordinance -- Limitation -- Labor in lieu of fine.) should also be brought to the attention of the code reviser. Judge Pearce MOVED to delete reference to the statute. Judge Erickstad seconded. CARRIED.

Superseded:

40-05-06 Judge Pearce MOVED to delete Section 40-05-06 (City fines and penalties limited.) from the Superseded list. Seconded by Mr. Shaft and by Judge Erickstad. CARRIED unanimously.

Cross References:

Rule 5 (Initial Appearance Before Magistrate) no objection

Rule 43 (Presence of the Defendant) no objection

It was agreed that the cases listed in the explanatory note as proposed should remain.

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Judge Pearce MOVED to adopt the Rule as amended and the Explanatory Note as amended, with the statutes, cases and cross references. Seconded by Mr. Sand. Question was called; the motion CARRIED unanimously.

Judge Pearce, Acting Chairman.

RULE 45

Consideration of Rule 45, Time. [adopted March 14, 1970]

Robert Vogel, sponsor. No change. No applicable ABA Standard.

Mr. Vogel read Rule 45 and the Explanatory Note as follows.

Rule 45. Time.

(a) Computation. [adopted 3/14/70]

In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is less seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

(b) Enlargement. [adoption deferred to 9/17/70]

When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under Rules 29, 33, 34, 35, 37(a)(2), and 39(c), except to the extent and under the conditions stated in them. (((As amended Feb. 28, 1966, eff. July 1, 1966.)))

*(c) Unaffected by Expiration of Term. (action deferred to 9/17/70]

The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any criminal action which has been pending before it.

(d) For Motions; Affidavits. [adopted 3/14/70]

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing unless a different period is fixed by rule or order of the court. For cause shown such an order may be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not less than 1 day before the hearing unless the court permits them to be served at a later time.

(e) Additional Time After Service by Mail. [adopted 3/14/70]

Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, 3 days shall be added to the prescribed period.

*(c) is Civil Rule 6(c) with the word "civil" changed to "criminal" in the last line.

Proposed Explanatory Note

Rule 45 is an adaptation of Rule 45 of the Federal Rules of Criminal Procedure with certain modifications. The Rule is similar, as well, to Rule 6 of the North Dakota Rules of Civil Procedure which deals with time, the desirability in similarity is that such computation should be the same for civil and criminal cases to preclude the possibility of confusion between the two.

Subdivision (a) establishes the standards by which to compute any period of time that figures in a criminal proceeding, which are as follows:

(1) The day of the act or event from which the designated period of time begins to run is not included in the compilation.

(2) The LAST DAY OF THE PERIOD is INCLUDED (unless it is a Saturday, Sunday or "Legal Holiday", in which case the period runs until the end of the next day).

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(3) When the PERIOD of time is LESS THAN SEVEN DAYS, intermediate Saturdays, Sundays and holidays are excluded from computation.

Subdivision (a) differs from its federal counterpart only insofar as the last sentence of the Federal subdivision (a), which lists Federally recognized holidays, is excluded from the North Dakota Rule.

Subdivision (b) provides a means of relief from compliance with time requirements, by allowing the court to modify the time upon a showing of "good cause". The period may be enlarged either before or after the time has lapsed; however the requirements in each instance are different. In the first instance (before expiration of the term) the court may at its discretion, with or without motion or notice, extend the time. In the second instance, upon motion made after expiration of the period, the court may permit the act to be done, if the failure to act was the result of "excusable neglect" (the burden of showing excusable neglect is upon the applicant).

The exception to subdivision (b) is in its application to Rules 29(Judgment of Acquittal), 33 (New Trial), 34 (Arrest of Judgment), 35 (Reduction of Sentence) and 37 (Appeals ***), all of which contain specific provisions of their own permitting enlargement.

Subdivision (c) is adopted in the language of Rule 6(c) of the North Dakota Rules of Civil Procedure with the only change being in the last line changing "civil" to "criminal". [Subdivision (c) of the Federal Rule was abrogated in 1966 with the adoption of 28 U.S.C. .452, which provides that the existence or expiration of a session of court in no way affects the power of the court to do any act.] An important provision of subdivision (c) is that the expiration of a term of court has no effect on the power of that court.

Subdivisions (d) and (e) are adapted from the Civil Rule 6(d) and (e). Subdivision (d) must be construed with Rule 47 relating to motions generally and with Rule 49 relating to the service and filing of papers. Subdivision (d) provides that a written motion (other than one that may be heard ex parte) and notice of hearing must be served not later than five days before the time specified for the hearing unless a different period is fixed by rule or order of the court.

Subdivision (e) which provides additional time for the exercise of a right or the doing of an act when service of notice is by mail, is identical with Rule 6(e) of the North Dakota Rules of Civil Procedure. Under this rule, whenever a party has the right or is required to do an act within a prescribed period after service of a notice or other paper, three days are added to the prescribed period.

Discussion:

Mr. Vogel MOVED to adopt subdivision (a). Mr. Sand seconded. CARRIED unanimously.

Mr. Vogel MOVED to delete the last sentence of .1 of the Explanatory Note and to delete the computation explanation in .2. Motion seconded by Mr. Persinger and CARRIED.

Mr. Vogel MOVED to adopt subdivision (b), Enlargement. Mr. Sand seconded. Motion CARRIED unanimously.

Mr. Vogel MOVED to delete the first explanatory paragraph for (b). Mr. Sand felt "the burden of showing excusable neglect is upon the applicant" has merit; Mr. Vogel thought it was obvious. Motion was seconded by Mr. Persinger and CARRIED.

Mr. Vogel MOVED to adopt the second explanatory paragraph for (b), with the deletion of the parenthesis around the rule titles and substituting the word "some" in lieu of "all" in line 3. Mr. Vogel suggested use rule #, period, title, as it appears. Mr. Persinger seconded the motion. Motion CARRIED.

Mr. Vogel MOVED to adopt subdivision (c). Second by Mr. Persinger. CARRIED unanimously.

Mr. Vogel MOVED to adopt the note for (c), with deletion of the brackets in lines 3 and 6. Mr. Sand commented that the brackets could remain because they contain explanation of the Federal rule, not this rule. However, the motion was seconded by Mr. Persinger and CARRIED unanimously.

Mr. Vogel MOVED to adopt subdivision (d) of the Rule. Mr. Persinger seconded. Motion CARRIED without objection.

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The Committee considered subdivision (e). Mr. Vogel MOVED to adopt subdivision (e). Seconded by Mr. Persinger. No discussion and the motion CARRIED.

The Committee considered the Explanatory Note to subdivisions (d) and (e). Mr. Vogel MOVED to adopt only the first sentences of the paragraphs. Mr. Persinger seconded. CARRIED unanimously.

STATUTES AFFECTED

It was noted that there are no statutes superseded.

Considered:

1-01-33 no objection

1-02-15 Acting Chairman Pearce suggested that Section 1-02-15 (Computation of time.) be superseded insofar as criminal process. Mr. Vogel so MOVED. Judge Muggli seconded. Question was called; the motion CARRIED.

1-03-01 (2) thru (14) no objection

Cross References:

Rule 6, NDRCivP (Time) no objection

Rule 13, NDRAppP (Computation and Extension of Time)

It was noted that reference to Rule 13 is incorrect; it should read Rule 26. The cause for the error was the change in the numbering of the Appellate Rules by the Supreme Court in their final consideration of those Rules.

Mr. Persinger MOVED to correct the cross reference by changing it to read Rule 26, NDRAppP. Mr. Shaft seconded. Motion CARRIED without objection.

Mr. Persinger MOVED to adopt the entire Rule 45. Mr. Vogel seconded. Motion CARRIED unanimously.

RULE 46

Rule 46, Release from Custody. [adopted November 19, 1971] Roger Persinger, sponsor. Change includes addition of subdivision (b) Appeal from Conditions of Release, and addition of language in subdivision (e) pursuant to a request by Judge Ilvedson. See ABA Standards Relating to Pretrial Release.

Mr. Persinger read Rule 46. Mr. Vogel noted that in line 6 of subsection (a)(1)(i), the word "he" should be "magistrate". It was noted that the word "voluntarily" was added in subsection (a)(1)(ii), page 2. Mr. Vogel noted the language that is deleted from the comparable Federal Rule; the deletion was agreed to. Mr. Vogel also noted that the numbering scheme differs. Mr. Travis explained that there had been extended discussion on that and it is consistent with the numbering throughout these Rules.

Mr. Persinger MOVED the adoption of subdivision (a), with an amendment to eliminate the parenthetical reference to Rule 5.1 in line 3 and to delete the word "he", substituting the words "the magistrate", in line 6. There was some discussion concerning the language "appearance bond" and "bail bond" in subsections (d) and(d) -- no change. Judge Erickstad seconded the motion. Motion CARRIED unanimously.

Mr. Persinger read the explanatory notes for subdivision (a), .'s 1 through 6. Judge Erickstad suggested deleting .'s 4, 5, and 6. Judge Muggli referred to .3, line 3, the words "presumptive determination" -- he took exception to that language and suggested deleting it. Mr. Persinger pointed out that subsection (a)(1)(i) speaks to the mandatory requirement that a person be released with certain exceptions listed.

Judge Muggli MOVED to delete the remainder of the third paragraph following the cite to . 3146 in line 2. Also the following three paragraphs, dealing with provisions under subdivision (a). Seconded by Mr. Persinger. Motion CARRIED. It was noted that the motion included the adoption of .'s 1 and 2 of the Explanatory Note in their entirety.

Mr. Persinger then read subdivision (b), Appeal from Conditions of Release. Mr. Travis noted that subdivision (b) is taken from Section 3147 of Title 18, U.S. Code (Federal Bail Reform Act).

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Mr. Persinger MOVED to adopt subdivision (b) of the Rule. Seconded by Mr. Sand. Question was called. The motion CARRIED.

The Explanatory Note for subdivision (b) was considered. Mr. Persinger MOVED to adopt the Explanatory Note for (b). Judge Muggli seconded. The motion CARRIED.

Subdivision (c) was considered next. Mr. Persinger MOVED to adopt subdivision (c), Release During Trial. Seconded by John Shaft. Motion CARRIED.

Mr. Persinger read the Explanatory Note to subdivision (c). There was no objection and Mr. Persinger MOVED its adoption. Seconded by Mr. Sand. Question was called and the motion CARRIED.

Mr. Persinger MOVED adoption of subdivisions (d), (e) and (f). It was noted that subdivision (d) must be changed to comply with Appellate Rule 9(b).

Mr. Travis noted that the additional language was included in subdivision (e) at the request of Judge Ilvedson, who recommended its inclusion to permit arrest of defendant by a magistrate. He added that such provision is consisted with existing state law.

It was also noted by Mr. Travis that under subdivision (e) there was some disparity between the proposed Appellate Rules which require the judge to stating in writing his reasons for refusal and this Rule which contains no such requirement. The Committee read Rule 9(b) of the Appellate Rules. It was suggested by Judge Pearce that the language of Rule 9(b) be inserted in lieu of subdivision (d).

Roger Persinger MOVED to adopt the text of Rule 9(b) of the Appellate Rules in lieu of subdivision (d). Mr. Shaft seconded. The motion CARRIED.

Mr. Persinger read the Explanatory Note for subdivisions (d), (e) and (f).

Judge Muggli MOVED to delete the proposed Explanatory Note for subdivision (d) and to insert in lieu thereof "Rule 46(d) is adopted in the language of Rule 9(b) of the N.D. Rules of Appellate Procedure." Motion was seconded by Mr. Persinger. Question was called and the motion CARRIED unanimously.

The Committee considered subdivision (e) of the Explanatory Note. Mr. Sand suggested deleting the language contained in parenthesis, "insofar as release is concerned". Mr. Shaft suggested the Explanatory Note for subdivision (f) is repetitious.

Judge Muggli MOVED to delete the phrase "insofar as release is concerned" in Explanatory paragraph (e) and to delete the entire Explanatory paragraph dealing with subdivision (f). Motion was seconded. No further discussion. The motion CARRIED.

Mr. Persinger MOVED to adopt subdivisions (d), (e) and (f). Judge Muggl seconded. Motion CARRIED unanimously.

Mr. Persinger then read subdivisions (g) Forfeiture, (h) Exoneration, and (i) Supervision of Detention Pending Trial. Mr. Vogel noted a correction in line 3 of subdivision (h), which should read "release any bail".

The Explanatory Notes to (g), (h) and (i) were read by Mr. Persinger. Acting Chairman Pearce noted that the second sentence of the paragraph dealing with subdivision (g)(3) was poorly drafted. He suggested it be amended as follow; "(((Further provided in))) This subsection (((is))) further provides that ..." Mr. Vogel suggested deletion of the parenthetical "if any" in line 5 of that paragraph.

Mr. Persinger MOVED to adopt subdivisions (g), (h), and (i) together with the Explanatory Notes as amended. Judge Muggli seconded. Motion CARRIED unanimously.

STATUES AFFECTED

Considered:

29-08-01 no objection

29-08-02 no objection

29-08-03 no objection

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Superseded:

29-08-04 no objection

29-08-05 no objection

29-08-06 no objection

29-08-07 no objection

29-08-08 no objection

29-08-09 no objection

29-08-10 no objection

29-08-11 no objection

29-08-12 no objection

29-08-13 no objection

29-08-14 no objection

29-08-15 no objection

Considered:

29-08-16 no objection

Superseded:

29-08-17 no objection

29-08-18 no objection

29-08-19 no objection

29-08-20 no objection

29-08-21 no objection

29-08-22 Mr. Vogel MOVED Section 29-08-22 (Increase or decrease of bail -- Notice to state's attorney.) be moved to Considered. Mr. Sand and Judge Muggli seconded. Motion CARRIED unanimously.

Judge Muggli MOVED Section 29-08-23 (Additional security may be required by court.) be superseded. Mr. Shaft seconded. CARRIED.

29-08-24 no objection

29-08-25 no objection

Considered:

29-08-26 no objection

29-08-27 no objection

Superseded:

29-21-34 no objection

Considered:

29-21-21 no objection

29-21-23 no objection

Superseded:

29-28-16 no objection

Judge Muggli MOVED to remove reference to Section 29-28-16 from the list of statutes Considered. Mr. Sand and Mr. Vogel seconded. Motion CARRIED.

Considered:

29-28-17 Judge Muggli MOVED to supersede Section 29-28-17 (Certificate of appeal taken and bail put in -- Duty of sheriff.). Mr. Vogel seconded. CARRIED.

29-05-12 It was the feeling of Judge Muggli and Mr. Sand that Section 29- 05-12 (Bail if offense charged is a misdemeanor.) should be superseded. Judge Muggli MOVED to supersede Section 29-05-12. Mr. Sand seconded. (There was discussion. Motion was WITHDRAWN.

29-05-13 no objection

29-05-14 no objection

29-05-22 Judge Erickstad commented that Section 29-05-22 (Giving bail deemed waiver of examination.) goes further than we think it does. Judge Pearce questioned the constitutionality of the statute. Judge Erickstad felt the statute should be referred to the code reviser. Mr. Sand asked to what type of preliminary examination the statute refers -- stating that it appears to be "one fulman brotum" (empty noise). Judge Muggli MOVED to delete Section 29-05-22 from the Statutes Affected under Rule 46. Motion seconded and CARRIED.

Judge Muggli MOVED to include Section 29-22-31 (Verdict of guilty -- Procedure.) as Considered. Mr. Vogel seconded. Motion CARRIED. In discussion, Judge Erickstad commented that under the new rules, even on conviction the defendant would be left

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on bail, not remanded. He asked what now requires a defendant to be remanded to the custody of the sheriff between verdict and judgment, with no appeal. Judge Muggli stated he didn't think the statute is contrary to the rule as adopted.

Considered:

31-03-19 no objection

31-03-21 Judge Muggli MOVED to correct the reference -- should read Section 33-03-20. Mr. Persinger seconded. Motion CARRIED.

Superseded:

31-03-21 no objection

31-03-22 no objection

31-03-23 no objection

Considered:

31-03-24 no objection

Mr. Travis suggested Section 33-12-10 (Bail.) be superseded. Judge Muggli MOVED to supersede Section 33-12-10. Mr. Sand seconded. Motion CARRIED.

Superseded:

33-12-36 no objection

33-12-37 no objection

33-12-38 no objection

Considered:

12-01-13 no objection

22-02-09 no objection

Mr. Persinger MOVED to adopt Rule 46 and the Explanatory Note. Judge Muggli seconded. Motion CARRIED unanimously.

MOTION to adjourn at 1:00 p.m.

Next scheduled Rules Committee meeting: February 20-23, 1973.

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