Supreme Court Rules - Rule 37 - Statutory and Ordinance Violations and Violation Bureaus: Pleas

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Supreme Court Rules

		Section/Rule:	37.58
Subject:	Rule 37 - Statutory and Ordinance Violations and Violation Bureaus	Publication / Adopted Date:	May 14, 1985
Topic:	Pleas	Revised / Effective Date:	January 1, 2019

37.58. Pleas

(a) Alternatives. A defendant may plead not guilty or guilty. If a defendant refuses to plead or if a corporation fails to appear, the court shall enter a plea of not guilty.

(b) Advice to Defendant. Except as provided by Rule 37.49 or Rule 37.57, before accepting a plea of guilty, the judge shall inform the defendant of the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and

(2) The defendant’s right to be represented by an attorney and that the judge will appoint an attorney for the defendant if defendant is indigent and if it appears to the judge that there would possibly be a jail sentence upon conviction; and

(3) That if defendant pleads guilty there will not be a trial of any kind, so that by pleading guilty the defendant waives the right to a trial, and

(4) The defendant's right to plead not guilty or to persist in that plea if it has already been made.

The judge shall further inform defendant of any right to a jury trial, the right to present witnesses on behalf of the defendant, that defendant has the right to confront and cross-examine witnesses against defendant, that defendant has the right to testify and that nobody can compel defendant to testify.

The judge shall determine whether the defendant understands, upon oral or written information provided, the matters presented.

(c) Ensuring That the Plea is Voluntary. Except as provided by Rule 37.49 or Rule 37.57, the judge shall not accept a plea of guilty unless the judge finds that said plea is knowingly, voluntarily, and intelligently made and not the result of force or threats or promises.

(d) Waiver of Counsel. If the defendant would possibly receive a jail sentence upon conviction, the judge shall determine, before accepting the defendant’s plea of guilty or not guilty, that the defendant has made a knowledgeable, voluntary, and intelligent waiver of the right to assistance of counsel.

Prior to making the finding, the judge shall review with the defendant a written waiver of counsel.

If the judge finds the waiver is knowingly, voluntarily, and intelligently made, the waiver shall be signed by the defendant, witnessed by the judge or the clerk at the judge’s direction, and appropriately recorded. The written waiver of counsel shall be substantially in the form as set out in Form 37.C.

(e) Plea Agreement Procedure. The judge shall not participate in any plea agreement discussions, but after a plea agreement has been reached the judge may discuss the agreement with the attorneys including any alternative that would be acceptable.

(1)

In General.

The prosecutor and the attorney for the defendant or the defendant acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty to a charged ordinance violation or to a lesser or related ordinance violation, the prosecutor will do any of the following:

(A) Dismiss other charges; or

(B) Make a recommendation, or agree not to oppose the defendant’s request for a particular sentence with the understanding that such recommendation or request shall not be binding on the judge; or

(D) Make a recommendation for, or agree on, another appropriate disposition of the case.

(2)

Disclosure of Plea Agreement – Court’s Actions Thereo

. If the parties have reached a plea agreement, the judge shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera at the time the plea is offered. If the agreement is pursuant to

Rule 37.58(e)(1)(B),

the judge shall advise the defendant that the plea cannot be withdrawn if the judge does not adopt the recommendation or request. Thereupon the judge may accept or reject the agreement or may defer a decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report.

(3)

Acceptance of a Plea Agreement.

If the judge accepts the plea agreement, the judge shall inform the defendant that the judge will embody in the judgment and sentence the disposition provided for in the plea agreement.

(4)

Rejection of a Plea Agreement.

If the judge rejects the plea agreement, the judge shall inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera that the judge is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea if it is based on an agreement pursuant to Rule 37.58(e)(1)(A), (C), or (D),

and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

(5)

Inadmissibility of Pleas, Offers of Pleas, and Related Statements.

Except as otherwise provided in this subdivision, evidence of a plea of guilty, later withdrawn, or of offer to plead guilty to the ordinance violation charged or of any other ordinance violation, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to a plea of guilty, later withdrawn, or an offer to plead guilty to the ordinance violation charged or any other ordinance violation, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath and in the presence of counsel.

(f) Determining Accuracy of Plea. The judge shall not enter a judgment upon a plea of guilty without first determining that there is a factual basis for the plea.

(Adopted May 14, 1985, eff. Jan. 1, 1986. Amended Dec. 23, 2003, eff. July 1, 2004; June 29, 2018, eff. Jan. 1, 2019.)

{Formerly titled “Plea Negotiations.”}