Decker v. State , 1973 N.D. LEXIS 159 ( 1973 )

KNUDSON, Judge

(concurring specially)-

I concur in the opinion of the majority quashing the writ of habeas corpus. However, I do not agree that the jurisdiction of the court is terminated on the expiration of the five-year period for which the imposition of sentence may be deferred. It is my opinion that the court retains jurisdiction of the defendant and of the cause until the matter has been disposed of by the court, either by discharge of the defendant or by imposition of sentence.

In John v. State, 160 N.W.2d 37 (N.D. 1968), we said that when the trial court defers the imposition of sentence and places the defendant on probation the trial court retains jurisdiction of the defendant for the purpose of passing sentence at some future date.

In my opinion, the contention of the petitioner that the trial court is without jurisdiction to revoke the probation or extend the period of probation after the period of probation has terminated is unfounded. I think the statutory provisions on suspension of imposition of sentence evince an intention by the legislature to enlarge the operation and breadth of these statutes rather than to limit them. The language of these statutes indicates that the legislature intended to extend the jurisdiction and authority of the court to fully and completely vest the court with jurisdiction over the defendant until the court has finally brought the matter to a close by the discharge of the defendant or by sentencing the defendant.

The trial court may suspend the imposing of the sentence, and may direct that such suspension continue for a definite period of time, not to exceed five years (§ 12-53-13), and shall place the defendant on probation during the period of suspension (§ 12-53-14).

The statutes on the suspension of the imposition of sentence speak in broad and general terms. Section 12-53-15, North Dakota Century Code, says, “Whenever” the parole board, the court, or the state’s attorney shall have reason to believe the defendant is violating the term of his probation. Section 12-53-17, “at any time during the course of probation,” when the probation may be revoked, modified or changed, and when the court may at any time terminate the period of probation. Section 12-53-18, “Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof,” may at any time be permitted at the discretion of the court to withdraw his plea of guilty.

These statutes speak of actions that may be done or taken by the court either during or after the period of probation has terminated. Many of the actions that may be taken by the court must of necessity be done after the period of probation has terminated. Certainly, the actions to be taken by the court under Section 12-53-18 must be done after the period of probation has terminated.

The words in Section 12-53-17, “during the course of probation,” are broad enough to include all steps of the proceedings from the suspension of the imposition of sentence provided in Section 12-53-13 through revocation, modification or change of suspension, or termination of the period of probation. The words, “course of probation,” as used here are not words of limitation, but broaden and extend the jurisdiction of the court to enable the court to carry out the steps that must be taken to carry out the mandate of the statute, including the provision of Section 12-53-18 for the release of the defendant from all penalties and disabilities resulting from the offense or crime of which he had been convicted under Section 12-53-18. The jurisdiction of the court continues until final disposition of the defendant has been made.