If you are charged with a criminal offense, whether it is your first or your fourth, a misdemeanor or a felony, the thought of attending a court hearing might seem frightening or intimidating. However, in North Dakota, an attorney may be able to attend these hearings on your behalf, without you having to be present. This is dependent upon the severity of your criminal case.
How can my attorney attend my hearing on my behalf?
- Within a criminal case, there are different types of hearings. These hearings may include an initial appearance, arraignment, motion hearing, preliminary hearing, dispositional conference, or even a trial. The practice and procedure of the criminal proceedings are governed by the North Dakota Rules of Criminal Procedure. The purpose of the North Dakota Rules of Criminal Procedure is to provide for the just determination of each criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay. However, there are some exceptions within criminal proceedings.
- Rule 43 of the North Dakota Rules of Criminal Procedure refers to Defendant’s Presence. Rule 43 states when required, unless provided otherwise, the Defendant must be present at the initial appearance, arraignment, the plea, every stage of trial, and sentencing. This Rule also provides “exceptions” and allows the Defendant to not be present at certain hearings.
- If the court permits, the Defendant does not need to be present under any of the following circumstances: Felony Offense, Misdemeanor Offense, Conference or Hearing on Legal Question, and Sentence Correction. It is very important to recognize that the court MUST approve the absence before the Defendant’s appearance is deemed waived. If the judge does not permit the requested absence, the Defendant MUST be present at the hearing.
- Under Rule 43, A felony offense is punishable by imprisonment for more than one year. For the Defendant to waive their presence for a felony offense, similar to misdemeanors below, the Defendant must be advised of their rights listed in Rules 5(b)(1) and (2) and 5(c). The Defendant must also consent to the absence in writing. If these conditions are met and the court approves of the absence, the Defendant does not need to be present with his or her attorney at the preliminary hearing, arraignment, and entry of a plea of not guilty. However, the Defendant must be present at trial and sentencing.
- Under Rule 43, a misdemeanor offense or infraction is punishable by fine or by imprisonment for no more than one year, or both. Like a felony offense, the Defendant must be advised of their rights listed in Rules 5(b)(1) and (3) and 11(b). The Defendant must also consent to the absence in writing. If these conditions are met and the court approves of the absence, the Defendant does not need to be present with his or her attorney at the arraignment, plea, trial, or sentencing.
- It is possible for the Defendant to never need to attend a court hearing on a misdemeanor charge or an infraction if they provide written consent to their attorney to appear on their behalf. However, it is important to note that the Defendant ALWAYS has the right to be present at every hearing.
Conference and/or Sentence Correction
- The Defendant does not need to be present at a conference. For example, a misdemeanor dispositional conference.
- The Defendant does not need to be present at a hearing on a question of law.
- Additionally, under Rule 35, the Defendant can waive their appearance at a hearing for a sentence correction. A sentence correction can include an illegal sentence, clear error, or a sentence reduction.
The legal system can be intimidating and complex. If you find yourself facing criminal charges, contacting a criminal defense attorney may be in your best interests as they can protect your legal rights throughout the process and help you obtain a favorable outcome. Contact Rosenquist Law Office at (701) 775-0654 or email us at firstname.lastname@example.org to schedule your free consultation.*The information contained in this article and on this website is for informational purposes only. This information is not legal advice and should not be relied upon as so.