TABLE OF CONTENTS

1. Caption
2. Introduction and Procedural History
3. Response to Allegations
4. Constitutional Rights
5. Standard of Proof
6. Timeliness and Procedural Defenses
7. Mitigating Factors
8. Alternative Sanctions Proposed
9. Evidence and Witness List
10. Conclusion and Prayer for Relief
11. Certificate of Service

Caption

IN THE DISTRICT COURT OF [________________________________] COUNTY
STATE OF NORTH DAKOTA
[________________________________] JUDICIAL DISTRICT

Introduction and Procedural History

COMES NOW Defendant, [________________________________], by and through [his/her] attorney, [________________________________], Esq., ND Bar ID No. [________], and hereby files this Response to the Petition for Revocation of Probation.

1. On [__/__/____], the Defendant was convicted of / pleaded guilty to [________________________________] in violation of NDCC § [________________________________], a Class [____] felony / misdemeanor.

2. On [__/__/____], the Court sentenced Defendant and placed Defendant on probation for a period of [____] months/years subject to conditions pursuant to NDCC § 12.1-32-07.

3. On [__/__/____], the State filed a Petition for Revocation of Probation alleging:

a. [________________________________]

b. [________________________________]

c. [________________________________]

4. The Defendant was taken into custody on [__/__/____] and was admitted to / denied bail.

Response to Allegations

A. Classification of Alleged Violations

☐ Technical Violation(s): Allegation(s) [____] are technical violations of probation conditions.

☐ New Law Violation(s): Allegation(s) [____] allege new criminal conduct.

B. Specific Responses

Allegation 1: [________________________________]

☐ Denied. The Defendant denies this allegation. [________________________________]

☐ Admitted with Explanation. The Defendant admits the factual basis but offers the following explanation: [________________________________]

☐ Admitted. The Defendant admits this allegation.

Allegation 2: [________________________________]

☐ Denied. [________________________________]

☐ Admitted with Explanation. [________________________________]

☐ Admitted. The Defendant admits this allegation.

Constitutional Rights

The Defendant asserts the following constitutional and statutory rights:

1. Right to Written Notice. The Defendant is entitled to written notice of the claimed violations. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

2. Right to Open Court Hearing. The hearing must be in open court. N.D.R.Crim.P. Rule 32.

3. Right to Counsel. The Defendant has the right to representation by retained or appointed counsel unless waived. NDCC § 12.1-32-07.

4. Right to Confront and Cross-Examine Witnesses. The Defendant has the right to confront and cross-examine adverse witnesses. Morrissey, 408 U.S. at 489.

5. Right to Present Evidence and Mitigating Information. A probationer must be given the opportunity to make a statement and present mitigating information. NDCC § 12.1-32-07.

6. Right to Bail. The probationer may be admitted to bail pending the hearing.

Standard of Proof

Pursuant to NDCC § 12.1-32-07, if the violation is contested, the prosecution shall establish the violation by a preponderance of the evidence. The Defendant submits the State cannot meet this burden as to the denied allegations because:

[________________________________]

Timeliness and Procedural Defenses

The Defendant asserts the following procedural defenses:

☐ Untimely Petition. The petition for revocation was not issued within 60 days of the expiration or termination of probation as required by NDCC § 12.1-32-07.

☐ Probation Expired. The probation term expired on [__/__/____] and the alleged violations occurred after that date.

☐ Insufficient Notice. The petition fails to provide adequate notice of the claimed violations.

☐ Other Procedural Defect: [________________________________]

Mitigating Factors

The Court should consider the following mitigating factors:

☐ Employment: Defendant is currently employed at [________________________________] since [__/__/____].

☐ Education: Defendant is enrolled in / has completed [________________________________].

☐ Treatment: Defendant is participating in [________________________________] since [__/__/____].

☐ Family: Defendant is the primary caretaker for [________________________________].

☐ Compliance: Defendant has substantially complied with all other conditions, including: [________________________________].

☐ Circumstances: The alleged violation occurred due to: [________________________________].

☐ Health: Defendant has medical/mental health conditions: [________________________________].

☐ Time Served: Defendant has served [____] of [____] months/years of probation without prior violations.

☐ Other: [________________________________]

Alternative Sanctions Proposed

In lieu of revocation, the Defendant respectfully requests:

☐ Continuation of probation under existing terms and conditions.

☐ Modification of probation conditions, specifically: [________________________________].

☐ Extension of probation period by [____] months.

☐ Community service of [____] hours.

☐ Enrollment in treatment program: [________________________________].

☐ Increased supervision/reporting requirements.

☐ Substance abuse testing at increased frequency.

☐ Short-term jail sanction of [____] days with continuation of probation.

☐ Other: [________________________________]

Evidence and Witness List

A. Documentary Evidence

B. Witness List

1. [________________________________] — [relationship/title] — will testify regarding [________________________________].

2. [________________________________] — [relationship/title] — will testify regarding [________________________________].

3. [________________________________] — [relationship/title] — will testify regarding [________________________________].

Conclusion and Prayer for Relief

WHEREFORE, the Defendant respectfully requests that this Court:

☐ Dismiss the Petition for Revocation of Probation in its entirety;

☐ Find that the State has failed to meet its burden of proof;

☐ Find that the Petition is untimely under NDCC § 12.1-32-07;

☐ Continue probation under existing terms and conditions;

☐ Modify the conditions of probation as proposed above;

☐ Impose alternative sanctions in lieu of revocation;

☐ Grant such other and further relief as the Court deems just and appropriate.

Respectfully submitted,

Date: [__/__/____]

_____________________________________________
[________________________________]
Attorney for Defendant
ND Bar ID No. [________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of the foregoing RESPONSE TO PETITION FOR REVOCATION OF PROBATION was served upon:

☐ Hand-delivered to:
☐ Electronically filed and served via the Court's e-filing system to:
☐ Mailed via U.S. Mail, postage prepaid, to:

[________________________________]
Assistant State's Attorney
[________________________________] County State's Attorney's Office
[________________________________]
[________________________________]

_____________________________________________
[________________________________]

Sources and References

• NDCC § 12.1-32-07 — Supervision of Probationer; Conditions; Revocation
• N.D.R.Crim.P. Rule 32 — Sentencing and Judgment
• Morrissey v. Brewer, 408 U.S. 471 (1972)
• Gagnon v. Scarpelli, 411 U.S. 778 (1973)