Spring 2019 Gavel Spring Gavel 2019 - Page 32

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.