CHANGES TO CRIMINAL RULES
NOW IN EFFECT
MIKE HAGBURG
Attorney at Law
because allowing the court the discretion to
retain alternate jurors can be advantageous,
especially in long and complicated cases. The
new language requires the court to “ensure
that a retained alternate does not discuss the
case with anyone until that alternate replaces
a juror or is discharged.” The court also “must
instruct the jury to begin its deliberations
anew” if an alternate replaces a juror after
deliberations begin.
Rule 32 - Sentence and Judgment
On March 1, amendments to the Rules of
Criminal Procedure took effect. Here is a
summary of the changes. A new subdivision (d) was adopted to
provide guidance for the sentencing of
violent offenders.
Rule 11 - Pleas The change is intended to make it clear
courts must follow Administrative Rule 51
when sentencing violent offenders. Among
other things, Rule 51 requires courts to
consult the most recent federal mortality
tables when making sentence calculations in
life with the possibility of parole cases.
Subdivision (b) was amended to reference
Rule 43(b)(2), which allows misdemeanor
defendants to be absent from a plea
proceeding. This supplements the existing
reference to Rule 43(c).
Rule 24 - Trial Jurors
Subdivision (b) was amended to allow a
challenge for cause to be made only prior to
a juror being sworn. The previous language
said: "A challenge to a prospective juror
must be made before the juror is sworn to
try the case, unless the court permits it to be
made after the prospective juror is sworn but
before jeopardy has attached." The change
was made because the previous language was
inconsistent with constitutional law, which
now recognizes that jeopardy attaches when
a juror is sworn.
Subdivision (c) was amended to allow
retention of alternate jurors after the jury
retires to deliberate. This change is based on
the language of the federal rule. The previous
language allowed alternates to be retained if
the parties agreed. The amendment was made
32
THE GAVEL
Rule 32.1 - Deferred Imposition
of Sentence
Rule 32.1 was amended to delete language
making the rule applicable only in
misdemeanor and infraction cases. Under
the amendments, the rule applies in all cases
in which an order deferring imposition of
sentence is entered. In other words, felony
deferred cases will now be treated the same
as infraction and misdemeanor cases, with
automatic dismissals as provided in the rule.
When the rule was first drafted, felony
cases were not included because felonies
are monitored by a probation officer and
it was thought the probation officer would
make the motion for dismissal. The change
extending automatic dismissal to felonies was
made in part because it is more efficient and
will save work.
Now that automatic dismissal applies to all
deferred imposition cases, everyone involved
in these cases needs to be aware of the hard
deadline for modifying orders under Rule
32.1: “no later than 60 days after expiration
or termination of probation.”
Rule 32.2 - Pretrial Diversion
Subdivision (a) was amended to specify only
fees or costs allowed by law may be paid to
(or through) the court. A further amendment
allows the parties to agree the defendant pay
additional amounts to others as a condition
of a pretrial diversion agreement.
This change was made so it would be clear
the court cannot process "non-standard"
fees in pretrial diversion cases. Only fees
allowed by statute can be processed through
the Odyssey system and court staff are not
allowed to accept other fees.
The amendment, however, takes into account
situations where it is in the interest of all
parties for the defendant to make a payment
not provided for in statute. The amended rule
allows diversion agreements to require “the
defendant pay to others additional amounts
as agreed upon by the parties.”
Rule 35 - Correcting or
Reducing a Sentence
Subdivision (a) was amended to clarify a
sentencing court can and should correct
an illegal sentence whenever it becomes
aware of it. The amended rule language
states, “[t]he sentencing court shall correct
an illegal sentence at any time.” The change
was needed because some courts have not
acted to correct illegal sentences based on
a belief there is a deadline for correction of
such sentences or a sentencing court can
lose jurisdiction to correct its own illegal
sentence.