Joint Procedure Committee Meeting

Scheduled on Thursday, June 21, 1984 @ 10:00 AM

MINUTES OF MEETING

Joint Procedure Committee

June 21-22, 1984

CALL TO ORDER

The meeting was called to order at 9:00 a.m., June 21, 1984, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present

Hon. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. Lawrence A. Leclerc
Professor Larry Kraft
Mr. James L. Lamb
Ms. Beryl J. Levine
Mr. LeRoy A. Loder
Mr. Raymond R. Rund

Absent

Hon. Wallace D. Berning
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. William S. Murray
Hon. James H. O'Keefe
Hon. Kirk Smith
Mr. Leonard H. Bucklin
Mr. Ward M. Kirby
Mr. Herbert L. Meschke
Mr. David L. Peterson
Mr. Dean Winkjer

APPROVAL OF MINUTES

Mr. Rund MOVED that the minutes of the April 26, 1984, meeting be adopted. Judge Kosanda seconded the motion. Motion CARRIED.

RULE 11.1, NDROC

Mr. Lamb MOVED to adopt the cross-reference in NDROC 11.1 as proposed. Judge Leclerc seconded the motion. Motion CARRIED.


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NONRESIDENT ATTORNEYS

An attorney admitted and licensed to practice in a foreign state or country, but not licensed to practice in North Dakota, may appear in a proceeding in a court of this State if he first designates as his associate a resident attorney admitted and licensed to practice law in this State. The name and address of the associate attorney must be shown on all pleadings being filed by the clerk. The associate attorney shall appear personally and, unless excused by the court, must remain in attendance with the nonresident attorney in all appearances before the court.

CROSS REFERENCE: Rule 2, Admission to Practice.

RULE 28, NDRAppP

Ms. Levine MOVED that the staff draft an amendment to the appropriate rule so that a motion to dismiss an appeal from a non-appealable order may be acted upon before the merits are argued to eliminate the need for briefing the merits if the motion to dismiss is granted. Judge Kosanda seconded the motion. Motion CARRIED.

Judge Leclerc MOVED that the staff draft an amendment to NDRAppP 3(c) similar to the one proposed for NDRAppP 28 regarding jurisdictional statement in the appellant's brief, and to defer discussion of Rule 28 to the next meeting. Ms. Levine seconded the motion. Motion CARRIED.

ACCELERATED APPEALS

Judge Leclerc MOVED not to adopt an amendment to NDRAppP 2 to provide for any greater expedited process. Ms. Levine seconded the motion. Motion CARRIED.

Judge Leclerc MOVED that the Committee study the adoption of a rule for summary determinations similar to Rules 7.041 and 7.042 of the Kansas Rules of the Supreme Court. Mr. Rund seconded the motion. Motion CARRIED.

Mr. Lamb MOVED that the staff be directed to look into the possibility of preparing a proposed recommendation for consideration concerning use of a screening process or arbitrator at the Supreme Court level. Judge Leclerc seconded the motion. Motion CARRIED.

RULE 15, NDRCivP

Mr. Lamb MOVED to adopt the proposed amendment to Rule 15, NDRCivP, on line 3 after the word "the" to add the language "pleading is one in which no responsive pleading is permitted and the". Judge Kosanda seconded the motion. Motion CARRIED.


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AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of that evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet that evidence.

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.


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The delivery or mailing of process to the Attorney General of North Dakota, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the State of North Dakota or any agency or officer thereof to be brought into the action as a defendant.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

RULE 41, NDRAppP

Mr. Rund MOVED to adopt alternative 2 of the proposed amendments to Rule 41, NDRAppP. To add "Recall of Mandate" to the title; add subsection "(c) Recall of Mandate. A mandate once issued shall not be recalled except to prevent injustice." Judge Leclerc seconded the motion. Motion CARRIED. Mr. Lamb, Judge Leclerc and Ms. Levine wished to be recorded as voting "No."

ISSUANCE OF MANDATE; STAY OF MANDATE;

RECALL OF MANDATE

(a) Date of Issuance. The mandate of the supreme court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order.

(b) Stay of Mandate Pending Appeal or Petition for Certiorari. A stay of the mandate, pending an appeal or a petition to the Supreme Court of the United


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States for a writ of certiorari may be granted upon motion. The stay may not exceed 30 days unless the period is extended for cause shown. If while the stay is in effect, the party who has been granted a stay files a copy of the petition for the writ with the clerk of the supreme court the stay shall continue until final disposition by the Supreme Court of the United States. Upon the filing of a copy of an order of the Supreme Court of the United States affirming the judgment or denying the petition for writ of certiorari the mandate shall issue immediately. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.

(c) Recall of Mandate. A mandate once issued shall not be recalled except to prevent injustice.

RULE 53, NDRCrimP - Explanatory Note

RULE 10.1, NDROC - Explanatory Note

Judge Leclerc MOVED to amend the Explanatory Notes to NDRCrimP 53 and NDROC 10.1, as follows: Delete on lines 1 through 3 "Rules VII(d), Rules of Court for the District of North Dakota (North Dakota 1963)", and to insert on lines 3 through 4 "NDROC 10.1 [Conduct in Court] and AR 21 [Electronic and Photographic Coverage of Court Proceedings]; and to list those rules in the cross-reference. Judge Heinley seconded the motion. Motion CARRIED.

Rule 53 is adopted in the language of NDROC 10.1 [Conduct in Court] and AR 21 [Electronic and Photographic Coverage of Court Proceedings] and prohibits photographing, broadcasting, televising or recording proceedings of the court except those operated for official purposes. The rule preserves the courtroom as a place of dignity, where the quest for truth goes on quietly and without fanfare and where the utmost precautions are taken to keep all extraneous influences from making themselves felt. [See Douglas, The Public Trial and the Free Press, 1960, 46 A.B.A.J. 840.] The rule implements the holding of the United States Supreme Court in Estes, in which the Court said that a defendant is deprived of Due Process under the Fourteenth Amendment when the trial is televised. [Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965).]

CROSS REFERENCE: NDRCrimP 42 (Contempt); NDROC 10.1 (Conduct in Court); AR 21 (Electronic and Photographic Coverage of Court Proceedings.


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EXPLANATORY NOTE

CROSS REFERENCE: Ar 21 (Electronic and Photographic Coverage of Court Proceedings); NDRCrimP 53 (Regulation of Conduct in the Courtroom).

RULE 30, NDRCrimP

Mr. Rund MOVED to delete subsection (d) of Rule 30, NDRCrimP, and to adopt Rule 30 as amended. Judge Kosanda seconded the motion. Motion CARRIED.

INSTRUCTIONS

(a) Instructions to Jury; Written or Oral. The court shall instruct the jury after the arguments of counsel to the jury are concluded. The court shall instruct the jury only as to the law of the case. The instructions shall be reduced to writing unless the parties otherwise agree. If written instructions are given they shall be signed by the judge and shall be taken by the jurors in their retirement. When oral instructions are given, they shall not be taken by the jurors in retirement unless, after they have been transcribed, it is so ordered by the court. All instructions taken by the jurors in retirement shall be returned into court with their verdict.

(b) Requested Instructions. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court may require that each instruction be written on a separate sheet, provided that North Dakota pattern jury instructions may be requested by reference to instruction number only. The court shall inform counsel in writing of its action upon requested instructions prior to their argument to the jury. All instructions given by the court to the jurors must be read or given to them orally by the court without disclosing whether the instructions were requested.

(c) Exceptions to Instructions. The giving of instructions and the failure to instruct the jurors shall be deemed excepted to unless the court, before instructing the jurors, shall submit to counsel the written instructions which it proposes to give to the jurors and shall ask for exceptions to be noted, and thereupon counsel must designate the parts or omissions of the instructions as he may deem objectionable.


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Thereafter, only the parts or omissions so designated shall be excepted to by the counsel designating the same. All proceedings connected with the taking of exceptions shall be in the absence of the jurors and a reasonably sufficient time shall be allowed counsel to take exceptions and to note the same in the record of the proceedings.

JURY QUESTIONNAIRE

Mr. Rund MOVED that this be studied to see if we can come up with an appropriate type of questionnaire. Mr. Loder seconded the motion. Motion CARRIED.

RECESS

The meeting recessed to 1:00 p.m., June 21, 1984.

CALL TO ORDER

The meeting was called to order at 1:00 p.m., June 21, 1984, by Justice Paul M. Sand, Chairman.

ROLL CALL

The roll call was the same as for the morning session.

NEXT MEETING

The next meeting has been scheduled for October 18 and 19, 1984, to commence at 9:00 a.m. on October 18.

LOCAL RULES - EAST CENTRAL JUDICIAL DISTRICT

Mr. Loder MOVED to postpone action on Local Rules 1 and 2 until the next meeting. Judge Kosanda seconded the motion. Motion CARRIED.

RULE 52, NDRCivP, and RULE 35, NDRAppP

Mr. Lamb MOVED that we postpone action on this to the next meeting. Mr. Loder seconded the motion. Motion CARRIED.

RULE 12.2, NDRCrimP

Mr. Rund MOVED that we adopt the amendments to Rule 12.2, NDRCrimP, as proposed in alternative 2. Mr. Loder seconded the motion.


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Mr. Lamb MOVED a substitute motion that we do not adopt the proposed amendments to Rule 12.2, NDRCrimP. Ms. Levine seconded the motion. Motion CARRIED.

RULE 9.1, NDROC

Mr. Lamb MOVED to defer action on Rule 9.1, NDROC, until the October meeting. Judge Kosanda seconded the motion. Motion CARRIED.

DISCOVERY

Mr. Rund MOVED to defer consideration of this until further definitive proposals are submitted by Judge Glaser. Mr. Lamb seconded the motion. Motion CARRIED.

RULE 5(b), NDRCrimP

This item was withdrawn from the agenda at the request of Justice Sand.

RULE 39, NDRAppP - Explanatory Note

Judge Leclerc MOVED to amend the explanatory note to Rule 39, NDRAppP, by inserting the following paragraphs:

If costs are not to be assessed as specified in this rule, the Supreme Court must enter an appropriate order, either in the decision or in the mandate, and any action by the clerk of the Supreme Court in striking cost provisions out of the mandate form constitutes a constructive order that costs are not to be allowed to either party. State v. Hagge, 231 N.W.2d 773 (N.D. 1975).

The mandate form used by the Supreme Court is signed by the Chief Justice and contains a form provision for awarding costs. If costs on appeal are not awarded the form provisions are crossed out by the clerk and, if costs are awarded, the party receiving costs is designated by the clerk. The action by the clerk and the signature by the Chief Justice is under the direction of the entire court.

Mr. Loder seconded the motion. Motion CARRIED.

Although derived from Rule 39, FRAppP, this rule is revised to simplify taxation of costs in the appellate court and the trial court. It provides for taxation of all costs by the clerk of the trial court, except in proceedings initiated in the Supreme Court.


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Because it is assumed that the usual case will involve typewritten papers, a presumed cost figure for briefs is inserted for convenience in assessing costs. This would ordinarily include the cost of the appendix.

Subdivision (q) generally restates § 28-31-11,

NDCC, which has been superseded. It provides a method, for execution on a judgment for costs incurred in an action originating in the Supreme Court.

If costs are not to be assessed as specified in this rule, the Supreme Court must enter an appropriate order, either in the decision or in the mandate, and any action by the clerk of the Supreme Court in striking cost provisions out of the mandate form constitutes a constructive order that costs are not to be allowed to either party. State v. Hagge, 231 N.W.2d 773 (N.D. 1975).

The mandate form used by the Supreme Court is signed by the Chief Justice and contains a form provision for awarding costs. If costs on appeal are not awarded the form provisions are crossed out by the clerk and, if costs are awarded, the party receiving costs is designated by the clerk. The action by the clerk and the signature by the Chief Justice is under the direction of the entire court.

RULE 8.3, NDROC

Mr. Lamb MOVED that staff redraft a proposed amendment to incorporate the points discussed. Professor Kraft seconded the motion. Motion CARRIED.

RECESS

Judge Kosanda MOVED the meeting be recessed to 9:00 a.m. June 22, 1984. Professor Kraft seconded the motion. Motion CARRIED.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., June 22, 1984, by Justice Paul M. Sand, Chairman.

ROLL CALL

Present

Hon. Gerald G. Glaser

Hon. Robert C. Heinley

Hon. Frank J. Kosanda


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Hon. Lawrence A. Leclerc

Professor Larry Kraft

Mr. LeRoy A. Loder

Mr. Raymond R. Rund

Absent

Hon. Wallace D. Berninq

Hon. Eugene A. Burdick

Hon. William S. Murray

Hon. James H. O'Keefe

Hon. Kirk Smith

Mr. Leonard H. Bucklin

Mr. Ward M. Kirby

Mr. James L. Lamb

Ms. Beryl J. Levine

Mr. Herbert L. Meschke

Mr. David L. Peterson

Mr. Dean Winkjer

RULE 5, NDRCivP

Judge William F. Hodny appeared before the Committee and expressed his views on the filing of discovery documents.

Mr. Rund MOVED that we adopt the amendments proposed in alternative 2. Judge Glaser seconded the motion.

Judge Leclerc MOVED a substitute motion to delay final action on the proposed amendment until the next meeting, and that staff be directed to redraft alternative 2 to meet the points raised at this meeting. Staff is also directed to draft appropriate amendments to other rules of civil procedure, and to study the recent proposed amendments in Minnesota in this regard. Mr. Loder seconded the motion. Motion CARRIED.

RULE 8.3, NDROC

Mr. Loder MOVED to table the proposed amendments to Rule 8.3, NDROC, but to make style changes in the Rule. Mr. Rund seconded the motion. Motion CARRIED.

PROPERTY AND DEBT LISTING (DIVORCE CASES)

In all contested divorce cases the parties, prior to trial, shall jointly prepare a complete listing of their property and debts. The parties shall then assign values to the property either as an agreed value or if not agreed a plaintiff's estimate and

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defendant's estimate, The document must be dated and signed by both attorneys and plaintiff and defendant. It must be filed with the clerk of court at least one day prior to trial.

TRIAL BEFORE JUDGE WHO REJECTS GUILTY PLEA

Mr. Rund MOVED to table further discussion of this topic. Judge Leclerc seconded the motion. Motion CARRIED.

RULE 53, NDRCivP

Judge Leclerc requested that discussion of Rule 53, NDRCivP, be laid over to the October meeting.

RULE 67, NDRCivP - Explanatory Note

Judge Kosanda MOVED to adopt the proposed amendments to the explanatory note to NDRCivP 67. Mr. Loder seconded the motion. Motion CARRIED.

Rule 67, as amended in ____________________, effective ___________________, is identical to FRCivP 67, as amended in 1983, except reference to North Dakota statutes has been substituted for reference to federal statutes.

RULE 11, NDRCrimP - Explanatory Note

Mr. Rund MOVED to adopt the following amendments to the explanatory note to NDRCrimP 11:

Add to paragraph 2: "This subdivision does not permit a defendant to enter a plea of nolo contendere and differs from the federal rule in that respect.

Insert the following paragraph: "Subdivision (a) (2) was adopted in _____________, effective ________________, and follows the 1983 amendment to FRCrimP 11(a)(2). This subdivision allows the defendant, with the approval of the court and the consent of the prosecuting attorney, to enter a conditional plea of guilty and reserve in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. The conditional plea procedure is intended to conserve prosecutorial and judicial resources and advance speedy trial objectives by avoiding the necessity of a trial simply to preserve pretrial issues for appellate review."

Add a final paragraph: "Rule 11 does not include a subdivision entitled harmless error and differs from


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the 1983 amendment to FRCrimP 11(h) in that respect. However, NDRCrimP 52(a), Harmless Error, is intended to have general application to all the criminal rules of procedure."

Judge Kosanda seconded the motion. Motion CARRIED.

Rule 11 is similar to FRCrimP 11. The rule is designed to accomplish a number of objectives: (1) it prescribes the advice which the court must give to ensure that the defendant who pleads guilty has made an informed plea; and (2) it provides for a plea agreement procedure designed to give recognition to the propriety of plea discussions between counsel, to bring the existence of a plea agreement out in open court, and to provide methods for court acceptance or rejection of the plea agreement.

Subdivision (a) provides for the various alternative pleas which the defendant may enter. This subdivision does not permit a defendant to enter a plea of nolo contendere and differs from the federal rule in that respect.

Subdivision (a)(2) was adopted in _____________________, effective ___________________, and follows the 1983 amendment to FRCrimP 11(a)(2). This subdivision allows the defendant, with the approval of the court and the consent of the prosecuting attorney, to enter a conditional plea of guilty and reserve in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. The conditional plea procedure is intended to conserve prosecutorial and judicial resources and advance speedy trial objectives by avoiding the necessity of a trial simply to preserve pretrial issues for appellate review.

Subdivision (b) prescribes the advice which the court must give to the defendant as a prerequisite to the acceptance of a plea of guilty. The court is required to determine that a plea is made with an understanding of the nature of the charge and the consequence of the plea. The "consequences" which must be explained to the defendant, codifies in the rule the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held that the defendant must be apprised of the fact that he relinquishes certain constitutional rights when he pleads guilty. Subdivision (b) establishes the requirement that the court address the defendant personally. [See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct.


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1166, 22 L.Ed.2d 418 (1969)]. Subdivision (b) (1) requires the court to determine that the defendant understands the nature of the charge. Subdivision (b)(2) requires that the court inform the defendant of and determine that he understands "the mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered." The objective is to insure that the defendant knows what minimum sentence the judge MUST impose and the maximum sentence the judge MAY impose, and further to explain the consecutive sentencing possibilities when the defendant pleads to more than one offense. This provision is included so that the judicial warning effectively serves to overcome subsequent objections by the defendant that his counsel gave him erroneous information. (A.B.A. Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Approved Draft (1968), p. 27.) Subdivisions (b)(3) and (4) specify the constitutional rights that the defendant waives by a plea of guilty (to satisfy the requirements of waiver as set forth in Boykin, supra). The purpose of subdivision (b)(5) is to ensure a knowing and intelligent waiver of counsel required by Boykin, supra, and other cases. A similar requirement is found in Rule 5(b) governing the initial appearance.

Subdivision (c) requires that the court determine that the plea of guilty is voluntary before accepting it. It also requires the court to inquire whether the defendant's willingness to plead guilty results from plea discussions between the defense attorney and the prosecuting attorney. Implicit in the rule is the assumption that any promise made in reaching a proper plea agreement does not render a plea involuntary. Subdivisions (c) and (d) afford the court an adequate basis for rejecting an improper plea agreement induced by threats or inappropriate promises. The rule specifies that the court personally address the defendant in determining the voluntariness of the plea. [See McCarthy v. United States, supra, 394 U.S. 459, 466, 467 (1969)].

Subdivision (d) provides for a plea agreement procedure. In doing so it gives recognition to the propriety of plea discussions and plea agreements, provided they are disclosed in open court and subject to acceptance or rejection by the trial judge. It is believed that where the defendant by his plea aids in insuring prompt and certain application of correctional measures, the proper ends of the criminal justice system


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are furthered because swift and certain punishment serves the ends of both general deterrence and the rehabilitation of the individual defendant. The procedure described in subdivision (d) is designed to prevent abuse of plea discussions and agreements by providing appropriate and adequate safeguards. Subdivision (d)(1) specifies that both the attorney for the prosecution and the attorney for the defense, or the defendant when acting pro se, participate in plea discussions. It also makes clear that there are three possible concessions that may be made in a plea agreement: first, the charge may be reduced to a lesser or related offense; second, the attorney for the prosecution may agree not to recommend or not oppose the imposition of a particular sentence; or third, the attorney for the prosecution may promise to move for a dismissal of other charges. The court is not permitted to participate in plea discussions because of the possibility that the defendant would believe that he would not receive a fair trial, if no agreement had been reached or the court rejected the agreement, and a subsequent trial ensued before the same judge.

Subdivision (d)(2) provides that the judge shall require the disclosure of any plea agreement in open court or, for good cause, in camera. Upon notice of the plea agreement, the court is given the option of accepting or rejecting the agreement or deferring its decision until receipt of the presentence report. This decision is left to the discretion of the individual trial judge.

Subdivision (d)(3) requires the court, if it accepts the plea agreement, to inform the defendant that it will embody in the judgment and sentence the disposition provided in the plea agreement, or one more favorable to the defendant. This provision serves the dual purpose of informing the defendant immediately that the agreement will be implemented.

Subdivision (d)(4) requires the court, on the record, upon its rejection of the plea agreement, to inform the defendant of this fact and to advise the defendant personally, in open court, or for good cause, in camera, that the court is not bound by the plea agreement. The defendant must be afforded an opportunity to withdraw his plea and must be advised that if he persists in his guilty plea, the disposition of the case may be less favorable to him than contemplated by the plea agreement.


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Subdivision (d)(5) requires that the court be notified of the existence of a plea agreement at the arraignment or at another time prior to trial fixed by the court unless it can be shown that for good cause this was not done. Having a plea entered at this stage provides a reasonable time for the defendant to consult with counsel and for counsel to complete any plea discussions with the attorney for the prosecution. The objective of the provision is to make clear that the court has authority to require a plea agreement to be disclosed sufficiently in advance of trial so as not to interfere with the efficient scheduling of criminal cases.

Subdivision (d)(6) makes it clear that generally if a plea discussion does not result in a plea of guilty, if a plea is not accepted or is withdrawn, or if a judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal or civil action or administrative proceeding. The only exception to this general rule is if the statements are voluntary, reliable, made under oath, on the record, in court, and in the presence of counsel. Even under these circumstances the exception applies only if the plea or offer is used for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement (see Rule 410, NDREv). The policy reason for the general rule is to encourage counsel to feel free to engage in plea discussions involving the defendant with the knowledge that plea-related statements may be used against the defendant only under very limited circumstances.

Subdivision (e) requires that the court not enter judgment upon a plea of guilty without making an inquiry to satisfy it that there is a factual basis for the plea.

Subdivision (f) requires that a verbatim record be kept of the proceedings. The record is important in the event of a post-conviction attack.

Subdivision (g), which is a modification of the language in Sections 29-14-21 and 29-13-02, is intended to permit a corporate defendant or a misdemeanant defendant to enter a plea through counsel. When a plea is entered pursuant to this subdivision, the requirement of subdivision (b), Advice to Defendant, is deemed waived.


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Rule 11 does not include a subdivision entitled harmless error and differs from the 1983 amendment to FRCrimP 11(h) in that respect. However, NDRCrimP 52(a), Harmless Error, is intended to have general application to all the criminal rules of procedure.

RULE 12, NDRCrimP - Explanatory Note

Mr. Loder MOVED to amend the explanatory note to Rule 12, NDRCrimP, as follows:

Paragraph 1: Delete, and insert "Rule 12 is similar to FRCrimP 12 with modifications to conform to the existing practice in North Dakota."

Paragraph 2: After the word "guilty" insert "Under federal practice, the pleadings are the indictment and information, and the pleas are guilty, not guilty, and nolo contendere."

Delete paragraphs 3, 7, 8, and 9.

At the end of paragraph 6 insert "and follows the federal rule in delineating these motions.

After deleted paragraph 7, insert "Subdivision (c) follows the federal rule and provides that a time for the making of pretrial motions shall be fixed at the time of the arraignment or as soon thereafter as practicable. However, the federal rule allows the court to adopt a local rule to provide for a different date to set a time for making pretrial motions and differs from subdivision (c) in that respect."; and "Subdivision (d) follows the federal rule and provides a method for insuring that the defendant knows what evidence the prosecution intends to offer into evidence at trial in order to afford the defendant an opportunity to raise objections to the evidence prior to trial under subdivision (b)(3)."

Paragraph 10: After (e) insert "follows the federal rule". Delete quoted material.

After deleted material in paragraph 10, insert "Subdivision (f) follows the federal rule and provides that the defendant shall waive the defenses or objections specified in subdivision (b)(l)-(5) if those defenses and objections are not raised at the time set in subdivision (c). The court may grant relief from the waiver if adequate cause is shown.


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"Subdivision (g) follows the federal rule except that a verbatim record of the hearing need not be made in municipal court.

After paragraph 12 insert "NDRCrimP 12 does not have a subdivision (i) to correspond to the 1983 amendment to the federal rule." and

"FRCrimP 12(i) was adopted to make the provisions of FRCrimP 26.2, Production of Statements of Witnesses, applicable to hearings on a motion to suppress evidence. The effect of the federal rule is that after a witness other than the defendant has testified at a suppression hearing, any statement of that witness in the possession of the party calling the witness shall be available to the other party for examination and use. NDRCrimP 12 does not have a corresponding subdivision because under NDRCrimP 16 a witness' statement is discoverable at any point in the proceedings, rather than only after a witness has testified."

Judge Kosanda seconded the motion. Motion CARRIED.

Rule 12 is similar to FRCrimP 12 with modifications to conform to the existing practice in North Dakota.

Subdivision (a) provides that the only pleadings in criminal proceedings are the indictment or information in the district court; the complaint in the county court and municipal court; and pleas of guilty and not guilty. Under federal practice, the pleadings are the indictment and information, and the pleas are guilty, not guilty, and nolo contendere. This rule expressly abolishes all other pleas and abolishes demurrers and motions to quash. The subdivision was amended in 1983, effective September 1, 1983, to delete obsolete references to the county court with increased jurisdiction and the county justice court.

All objections or defenses raised before trial must be made by a simple motion to dismiss or by motion to grant appropriate relief as provided in these rules. Subdivision (a) speaks only of defenses and objections that prior to the Rules could have been raised by plea, demurrer, or motion to quash.

Selection of a wrong plea will no longer be a hazard, since there is now but one mode of raising all objections and defenses. Even if counsel, unaware of


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procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.

Subdivision (b) provides that any defense or objection that is capable of determination without trial of the general issue may be raised by motion before trial, but a defendant has no standing to attack a count in an indictment, information, or complaint in which he is not charged with the commission of an offense. Subdivision (b) further provides that certain motions must be made prior to trial and follows the federal rule in delineating these motions.

Subdivision (c) follows the federal rule and provides that a time for the making of pretrial motions shall be fixed at the time of the arraignment or as soon thereafter as practicable. However, the federal rule allows the court to adopt a local rule to provide for a different date to set a time for making pretrial motions and differs from subdivision (c) in that respect.

Subdivision (d) follows the federal rule and provides a method for insuring that the defendant knows what evidence the prosecution intends to offer into evidence at trial in order to afford the defendant an opportunity to raise objections to the evidence prior to trial under subdivision (b)(3).

Subdivision (e) follows the federal rule and was amended effective January 1, 1980, to require the existence of "good cause" to defer ruling on a pretrial motion, with the intent of discouraging the tendency to reserve ruling on pretrial motions. Moreover, the court cannot defer its ruling if to do so will adversely affect a party's right to appeal. This will protect certain prosecution appeal rights which could be deprived by a deferred ruling.

Subdivision (f) follows the federal rule and provides that the defendant shall waive the defenses or objections specified in subdivision (b)(l)-(5) if those defenses and objections are not raised at the time set in subdivision (c). The court may grant relief from the waiver if adequate cause is shown.

Subdivision (g) follows the federal rule except that a verbatim record of the hearing need not be made in municipal court. Subdivision (9) was amended in 1983, effective September 1, 1983, to delete an obsolete reference to justice courts.


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The deletion of the sentence "This rule does not affect the provisions of any statute relating to periods of limitations," from subdivision (h) is primarily because North Dakota does not have statutes comparable to the federal statutes. [See also: 90 A.L.R. 452, 456.] NDRCrimP 12 does not have a subdivision (i) to correspond to the 1983 amendment to the federal rule.

FRCrimP 12(i) was adopted to make the provisions of FRCrimP 26.2, Production of Statements of Witnesses, applicable to hearings on a motion to suppress evidence. The effect of the federal rule is that after a witness other than the defendant has testified at a suppression hearing, any statement of that witness in the possession of the party calling the witness shall be available to the other party for examination and use. FRCrimP 12 does not have a corresponding subdivision because under NDRCrimP 16 a witness' statement is discoverable at any point in the proceedings, rather than only after a witness has testified.

RULE 23, NDRCrimP - Explanatory Note

Judge Kosanda MOVED to amend the explanatory note to Rule 23, NDRCrimP, as follows:

In the explanation of subdivision (c), after "(1965).)" insert "The federal rule, as amended in 1983, permits a trial by jury of eleven without a stipulation if the court finds it necessary to excuse a juror after the jury has retired to consider its verdict. Subdivision (c) does not follow the federal rule in this respect because the North Dakota Constitution, Art. I, § 13, provides that "A person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve [and] the legislative assembly may determine the size of the jury for all other cases, provided that the jury consists of at least six members." The Committee believes that any provision permitting a trial by a jury of less than twelve without a stipulation of the parties would conflict with this constitutional provision.

Professor Kraft seconded the motion. Motion CARRIED.

Rule 23 is adapted from Federal Rule 23 and governs trial by jury or by court in all criminal actions within this State. Rule 23 differs from the federal rule in that the federal rule permits only a


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written waiver. There is no right to trial by jury under federal law in cases involving a petty offense. 18 USCA Section 1, provides, "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of $500 or both is a petty offense." (See Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 32 L.Ed. 223, 228 (1888); District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843, 846 (1937); United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23, rehearing denied, 377 U.S. 973, 84 S.Ct. 1642, 12 L.Ed.2d 742 (1964); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, rehearing denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968). See also, State v. Heath, 177 N.W.2d 751 (N.D. 1970), dealing with criminal contempt. Criminal contempt is a crime in every essential respect; it is a violation of the law; punishable by fine, imprisonment or both. The Court went on to say, in Heath, at page 754, "Where the Legislature * * * has fixed the maximum penalty for the offense of criminal contempt at thirty days in jail and a $250 fine, we find such criminal contempt to be petty criminal contempt. Therefore, the defendants were not entitled to a jury trial as a matter of right.")

Subdivision (a), which provides for the waiver of jury trial by the defendant, embodies existing practice, the constitutionality of which has been upheld. (Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L. Ed. 854, 70 ALR 263 (1930). But Subdivision (a) does not give the defendant an absolute right to waive trial by jury. Before such a waiver may be granted, the defendant must have the approval of the court and consent of the prosecution. (Dixon v. United States, 292 F.2d 768 (D.C. Cir. 1961).) This position reflects the view that "Trial by jury is the norm and with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses." (Singer v. United States, 380 U.S. 24, 37-38, 85 S.Ct. 783, 79l, 13 L.Ed.2d 630 (1965).)

Subdivision (b) implements the provisions of § 29-17-12, NDCC, by clarifying when a request for a jury of 12 in a misdemeanor case must be made to be "timely."

Subdivision (c) permits either a stipulation in writing before trial that the case be tried by a jury composed of less than twelve or a stipulation during


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the trial consenting that the case be submitted to less than twelve jurors. The second alternative is useful in case it becomes necessary during the trial to excuse a juror because of illness or some other cause and no alternate juror is available. It should be emphasized that for a defendant to be permitted to waive trial by jury or to consent to a trial by less than twelve, it must be shown to be the result of the "express and intelligent consent of the defendant," and it must represent his voluntary act. (United States v. Sams, 219 F.Supp. 164 (D.Pa. 1963), 340 F.2d 1014 (3rd Cir. 1965), cert. denied, 380 U.S. 974, 85 S.Ct. 1336, 14 L.Ed.2d 270 (1965).) The federal rule, as amended in 1983, permits a trial by a jury of eleven without stipulation if the court finds it necessary to excuse juror after the jury has been retired to consider its verdict. Subdivision (c) does not follow the federal rule in this respect because the North Dakota Constitution, Art I, § 13, provides that "A person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve [and] the legislative assembly may determine the size of the jury for all other cases, provided that the jury consists of at least six members." The Committee believes that any provision permitting a trial by a jury of less than twelve without a stipulation of the parties would conflict with this constitutional provision.

Subdivision (d) differs from the federal rule in that it requires only a finding of guilty or not guilty, whereas the federal rule provides, "In a case tried without a jury the court shall make a general finding and shall in addition upon request find the facts specially."

RULE 32, NDRCivP - Explanatory Note

Mr. Rund MOVED to adopt the following amendments, with style changes, to the explanatory note to Rule 32, NDRCivP:

At the end of the third paragraph add "Subdivision (a)(1), as amended in ___________________, effective _________________, also requires the court to determine that the defendant and his counsel have had an opportunity to read and discuss the presentence report or summary. This follows the federal rule as amended in 1983 in this respect."

Add the following paragraph: "Subdivision (c)(3)(D). adopted ________________, effective ________________________, follows the 1983 amendment to the federal rule. The amended rule


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requires the sentencing court to make a finding as to any alleged factual inaccuracies in the presentence report or to determine that no finding is necessary because the issue controverted will not be taken into account in sentencing. This rule is intended to insure an accurate presentence report for sentencing purposes and for later custody or parole determinations."

Professor Kraft seconded the motion. Motion CARRIED.

Rule 32 is similar to FRCrimP 32.

The provision in subdivision (a)(l) which requires that there be no "unreasonable delay" in imposing sentence is dependent on the circumstances. The rule makes it clear that the time for imposing sentence is not at the will of the court but rather must be "made without unreasonable delay." (See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957).) The court need not wait until the expiration of the period allowed for filing a motion for a new trial before imposing sentence. (See Wright, Federal Practice and Procedure, Federal Rules of Criminal Procedure, § 521, page 385 (1969).)

Subdivision (a)(1) requires that before the sentence is imposed, counsel for the defendant be given an opportunity to speak on behalf of the defendant and that with certain exceptions provided in Rule 43, the defendant must be addressed personally to determine whether or not he wishes to make a statement on his own behalf and present information either in mitigation of punishment or which would require the court to withhold pronouncement of judgment and sentence. (Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, rehearing denied, 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed.2d 201 (1961) and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, rehearing denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).) Subdivision (a)(1), as amended in ________________, effective _______________________, also requires the court to determine that the defendant and his counsel have had an opportunity to read and discuss the presentence report or summary. This follows the federal rule as amended in 1983 in this respect.

Finally, subdivision (a)(1) provides the prosecution with the opportunity to be heard on any matter material to the imposition of the sentence. This language is adapted from the Colorado Rules of Criminal Procedure and has been a practice followed in Federal court. (See


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Noell v. United States, 183 F.2d 334 (9th Cir. 1950), cert. denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (1951); also King v. United States, 410 F.2d 1127 (9th Cir. 1969).)

Subdivision (a)(2) makes it clear that the court must advise the defendant of his right to appeal a verdict of guilty in a case that has gone to trial on a plea of not guilty. It also provides that the defendant must be advised of his right to apply for appointment of counsel for purposes of appeal, if he is unable to pay the costs of appeal. Strict compliance with this rule is required. (See Paige v. United States, 443 F.2d 781 (4th Cir. 1971).) This rule also makes it clear that the court is under no duty to advise the defendant of any right to appeal a sentence based on a plea of guilty. This advances the notion that to advise one of his right to appeal after a plea of guilty would tend to build false hopes and encourage frivolous appeals. (See 52 F.R.D. 409, 454 (1971).)

Subdivision (b) provides for judgment, and follows the language of the federal rule except that the words "or findings" are omitted from the first sentence as unnecessary. Section 1-01-41, NDCC, includes in the definition of "verdict," findings of fact by the judge. This subdivision provides that the plea, the verdict, and the adjudication and sentence be set forth in both the written and oral judgment. Omission of these in the written judgment is not fatal, if the steps were in fact taken. (See Wright, Federal Practice and Procedure: Criminal, § 534 (1969); Sanders v. Johnston, 165 F.2d 736 (9th Cir. 1948).) If the written judgment differs from the oral pronouncement, the oral pronouncement will prevail. (Cuozzo v. United States, 340 F.2d 303 (5th Cir. 1965).) If there is a difference in a matter of substance, the judgment may be void but is subject to correction. (Kennedy v. Reid, 249 F.2d 492 (D.C. Cir. 1957); Cephus v. United States, 352 F.2d 663, 664, n. 1 (D.C. Cir. 1965), cert. dismissed, 382 U.S. 897, 86 S.Ct. 229, 15 L.Ed.2d 154 (1965), cert. denied 384 U.S. 1012, 86 S.Ct. 1956, 16 L.Ed.2d 1031 (1966); see also Wright, supra, § 534).

Subdivision (c)(1) differs from its federal counterpart in that it leaves to the court's discretion whether or not a presentence investigation and report is to be made. If a report is ordered, the contents of the report shall be disclosed to the court only: (1) when the defendant is found guilty, (2) when the


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defendant has pleaded guilty, or (3) when the defendant has consented. The reason for withholding disclosure is to avoid any prejudice on the part of the judge in the event he is required to preside at a trial of the defendant. (See Wright, supra, Vol. 2 at § 523; United States v. Chrisos, 291 F.2d 535, 537 (7th Cir. 1961).)

Subdivision (c)(2) follows FRCrimP 32(c)(2) and establishes a requirement that the report include any prior criminal record, behavioral characteristics, financial conditions of the defendant and circumstances affecting his behavior that may be helpful in imposing sentence or such other information as the court may require.

Subdivision (c)(3) follows FRCrimP 32(c)(3) as amended in 1983 and provides for the disclosure of the presentence report to the defendant and his counsel a reasonable time before sentencing. This provision is included to permit the defendant and his counsel to have an opportunity to review the report for any inaccurate, incomplete or misleading information and to point it out to the court and, effective January 1, 1980, at the discretion of the court, introduce testimony or other information. The court is provided with discretion in determining whether the report contains information harmful to the defendant, in which case the court will summarize, either orally or in writing, the facts which will be relied upon in determining sentence. The defendant and counsel may then comment on this statement. This subdivision provides that the attorney for the prosecution may see any material disclosed to the defendant and his counsel. A further provision requires that all the copies of the presentence investigation report be returned to the court and that no additional copies shall be made by any party involved, unless otherwise directed by the court. This is to prevent copies from falling into unauthorized hands.

Subdivision (c)(3)(D), adopted ___________________, effective ____________________, follows the 1983 amendment to the federal rule. The amended rule requires the sentencing court to make a finding as to any alleged factual inaccuracies in the presentence report or to determine that no finding is necessary because the issue controverted will not be taken into account in sentencing. The rule is intended to insure an accurate-presentence report for sentencing purposes and for later custody or parole determinations.


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Subdivision (d) is adapted from A.B.A. Standards relating to Pleas of Guilty, § 2.1(a), 2.1(a)(i) and 2.1(b)

Subdivision (e) deals with probation. 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.

Subdivision (f) is divided into two paragraphs. Paragraph (1) provides for a procedure for taking the probationer into custody, and paragraph (2) establishes the procedure to be followed on hearing -- both of which are deemed necessary for a proper revocation of probation. Subdivision (f) does not apply where sentence is deferred and jurisdiction over the probationer is transferred to the parole board under Section 12-53-06 or 12-59-15, NDCC.

Under subdivision (f)(1), following a determination that there is probable cause to believe that a violation of probation has been committed, a probationer may be taken into custody for alleged violation of probation (1) by a State parole officer, (2) by a peace officer under direction of a State parole officer, or (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 appear before it for a hearing on an alleged violation. The rule now effective January 1, 1980, makes clear that a probationer may be admitted to bail pending the hearing.

Subdivision (f)(1) is adapted in part from the A.B.A. Standards, Standards Relating to Probation, § 5.4 at 69 (Approved Draft, 1970). It is stated by the A.B.A. Advisory Committee that 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. The inability of a lay-probationer to adequately


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protect himself in such a context would seem just as pronounced as it is at the trial itself."

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. An appeal from revocation of probation is not precluded under Section 12-53-20, NDCC. See State v. Lesmeister, 288 N.W.2d 57 (N.D. 1980); NDCC § 29-28-07-(5).

Subdivision (f)(2) 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. This subdivision 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. 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 A.B.A. Standards, supra, § 5.3 at page 63.)

RULE 35, NDRCrimP - Explanatory Note

Judge Heinley MOVED to amend the explanatory note to Rule 35, NDRCrimP as follows:

After "(1970)" in the third paragraph inserts, "A Rule 35 motion presupposes a valid conviction only for purposes of a hearing on that motion and does not preclude an appeal by a defendant from the conviction. State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982)."

Add a final paragraph, "Subdivision (b) was amended in _________________, effective __________________, to follow the 1983 amendment to the federal rule and clarify that the sentencing court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked."*

Judge Glaser seconded the motion. Motion CARRIED.

Rule 35 is derived from Rule 35, FRCrimP. One modification in language is the addition of the word "sentencing" to modify court. This clarifies 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 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 United States Supreme Court.

This motion "is essentially a plea for leniency and presupposes a valid conviction." (Poole v. United States, 250 F.2d 396, 401 (D.C.Cir. 1957), and United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968), cert. denied 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968), rehearing denied, 399 U.S. 917, 90 S.Ct. 2187, 26 L.Ed.2d 576 (1970). A Rule 35 motion presupposes a valid conviction only for purposes of a hearing on that motion and does not preclude an appeal by a defendant from the conviction. State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982). 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, for any reason, was unduly severe. (Wright, Federal Practice and Procedure: Criminal, § 586, p. 568 (1968).) Ordinarily a court is not required to hear testimony or arguments on a motion for reduction of sentence. This is discretionary with the court. (Jacobsen v. United States, 260 F.2d 122 (8th Cir. 1958).) 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. (Wright, supra, § 586, pp. 570-571.) A motion for reduction of sentence must comply with 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, ¶ 35.02(l), p. 35-5 (Cipes, 2d Ed. 1970).) 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 to the invalid sentence by the court of original jurisdiction. (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. (Waltman v. Austin, 142 N.W.2d 517, Syllabus ¶ 2 (N.D. 1966).)


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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.)

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

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.

This Rule was amended in 1978 pursuant to the construction given it by the North Dakota Supreme Court in State v. Rueb, 249 N.W.2d 506 (N.D. 1976). The decision and the amendment require that notice of a motion for correction or reduction of sentence be given to the parties in accordance with Rule 49, whether the court acts on its own motion or a motion filed by a party. If the court grants relief under this rule, it must give its reasons therefor in writing.

The rule was amended in 1983, effective September 1, 1983, to track amendments to the federal rule creating two subdivisions and inserting a new sentence in subdivision (b) providing that "changing a sentence from a sentence of incarceration to a grant of probation constitutes a permissible reduction of sentence under this subdivision."

Subdivision (b) was amended in ___________________, effective __________________, to follow the 1983 amendment to the federal rule and clarify that the sentencing court may reduce a sentence within 120 days after either the sentence is imposed or probation is revoked.

RULE 29, NDRCrimP Explanatory Note

Professor Kraft MOVED to amend the explanatory note to NDRCrimP 29 as follows:

In the third paragraph after the word "use" add: Under FRCrimP 29(b) the court may reserve decision on a motion for judgment of acquittal made at the close of all the evidence, submit the case to the jury, and then decide the motion either (1) before the jury returns a verdict, or (2) after it returns a verdict of guilty, or (3) is discharged without having returned a verdict.


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The last paragraph will read: Subdivision (c) follows the federal rule but differs in one respect. The North Dakota rule does not permit a motion for judgment of acquittal after the jury returns a verdict of guilty.

Judge Glaser seconded the motion. Motion CARRIED.

Rule 29 is a variation of Rule 29, FRCrimP, but differs from the Federal Rule in several aspects. The first sentence of Subdivision (a) was deleted and the word "complaint" was added to conform with these rules and existing practice within the State.

Subdivision (a) is intended to preserve the right of the defendant to offer evidence in his own behalf, if his motion for a judgment of acquittal is denied. The purpose of the second sentence of the rule is to remove that doubt (which presently exists in a few Federal districts) as to whether the defendant is deemed to have rested his case if he moves for a directed verdict at the close of the prosecution's case.

The language of Subdivision (b) is eliminated and this subdivision is retained in blank for possible future use. Under FRCrimP 29(b) the court may reserve decision on a motion for judgment of acquittal made at the close of all the evidence, submit the case to the jury, and then decide the motion either (1) before the jury returns a verdict, or (2) after it returns a verdict of guilty, or (3) is discharged without having returned a verdict.

Subdivision (c) follows the Federal Rule but differs in one respect. The North Dakota rule does not permit a motion for judgment of acquittal after the jury returns a verdict of guilty.

RULE 46, NDRCrimP - Explanatory Note

Mr. Rund MOVED to adopt the proposed amendment to the explanatory note to Rule 46, NDRCrimP. Professor Kraft seconded the motion.

Mr. Loder MOVED a substitute motion that the explanatory note to Rule 46, NDRCrimP, be referred to staff for redrafting in light of the committee discussion. Judge Glaser seconded the motion. Motion CARRIED.


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RULE 9, NDRAppP - Explanatory Note

Judge Glaser MOVED that the explanatory note to Rule 9, NDRAppP, be referred to staff, with Rule 46, NDRCrimP, for redrafting. Mr. Loder seconded the motion. Motion CARRIED.

RULE 3.2, NDROC - Explanatory Note

Mr. Loder MOVED the following amendment to Rule 3.2:

"Subdivision (c) was amended in _________________________, effective ____________________, to clarify that unless the parties request the taking of testimony or oral argument a motion is deemed heard when it is submitted on brief or the time for filing a brief expires. The amendment is intended to reconcile subdivision (c) with other rules of procedure which mention or imply a hearing."

Professor Kraft seconded the motion. Motion CARRIED.

The language of subdivision (c) does not prevent a court from adopting a local rule requiring that every motion be noticed for hearing.

Subdivision (c) was amended in ________________________, effective _______________, to clarify that unless the parties request the taking of testimony or oral argument a motion is deemed heard when it is submitted on brief or the time for filing a brief expires. The amendment is intended to reconcile subdivision (c) with other rules of procedure which mention or imply a hearing.

RULE 6, NDRCivP - Explanatory Note

Mr. Loder MOVED to add the following paragraph to the explanatory note to NDRCivP 6:

"Subdivision (d) must be read in conjunction with NDROC 3.2(c)."

Professor Kraft seconded the motion. Motion CARRIED.

Rule 6 is basically the same as Rule 6, FRCivP, with two main differences. This rule omits the listing of legal holidays found in subdivision (a) of the federal rule. See Chapter 1-03, NDCC, concerning holidays in North Dakota. Subdivision (c) was rescinded in the federal rule as there are no longer formal terms of court, but has been retained here.


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This rule was also amended in 1971 to comport with changes to the federal rules by including the local rules of any district court in the enumeration of time periods to be computed in accordance with the rule and the provision that Saturdays are to be excluded from computation.

Subdivision (d) must be read in conjunction with NDROC 3.2(c).

RULE 45, NDRCrimP - Explanatory Note

Mr. Loder MOVED to adopt the following amendment to the explanatory note to NDRCrimP 45:

Add the following language at the end of paragraph 5, "and NDROC 3.2 relating to submission of motions on brief."

Professor Kraft seconded the motion. Motion CARRIED.

Rule 45 is an adaptation of FRCrimP 45, with certain modifications. The rule is similar, as well, to NDRCivP 6, which deals with time.

Subdivision (a) differs from its federal counterpart in that the last sentence of subdivision (a) of the federal rule, which lists federally recognized holidays, is excluded from the North Dakota rule.

The exception to subdivision (b) is in its application to Rules 29 (Motion for Judgment of Acquittal); 33 (New Trial); 34 (Arrest of Judgment); 35 (Correction or Reduction of Sentence); and 37 (Appeal as of Right to District Court, or County Court; How Taken), some of which contain specific provisions permitting enlargement.

Subdivision (c) is adopted in the language of NDRCivP 6(c), with the only modification in the last line, changing the word "civil" to "criminal." Subdivision (c) of the federal rule was abrogated in 1966 with the adoption of 28 USC § 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 NDRCivP 6 (d) and (e). Subdivision (d) must be construed with


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Rule 47 relating to motions generally, Rule 49 relating to the service and filing of papers, and NDROC 3.2 relating to submission of motions on brief.

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 to NDRCivP 6(e).

ADJOURNMENT

Mr. Rund MOVED that the meeting be adjourned. Professor Kraft seconded the motion. Motion CARRIED.

________________________________________
Secretary