This chapter is enacted to provide rules to govern the procedures for all criminal cases in the Tribal Court.
(Prior code § 2.3.1.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
It is the intent of the Chehalis Tribe that these rules provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in judicial administration and the elimination of unjustifiable expense and delay. The rules are to be in keeping with the spirit and plain meaning of the Constitution of the Confederated Tribes of the Chehalis Reservation.
(Prior code § 2.3.1.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
When the words below appear in this chapter they shall be defined as set forth in this section unless another meaning is specifically indicated in this chapter:
means an appearance before the Court by a person accused of a crime, at which the accused is informed of the charge and guaranteed rights, and is given an opportunity to enter a plea.
means the taking of a person into custody to answer a criminal charge.
means a warrant issued from the bench by the judge, ordering the arrest of a person in contempt, or to bring before the Court a person who has failed to obey a subpoena or other lawful order of the Court.
means a written statement that has been sworn to by a complaining witness or prosecutor, charging that a named person has committed a particular criminal offense.
means that limitation by a law enforcement officer, which through word or deed, physically restricts the freedom of movement of a suspect.
means a request, oral or written, for a court order on any matter relating to an action which has been filed.
means apparent facts which would cause a reasonable person to believe, in a criminal case, that the accused person committed the offense.
means a written order signed by a Tribal Court judge and directed to Tribal law enforcement officers, ordering a search and seizure of items or property specified in the warrant. The property and place to be searched will be particularly identified and the items to be seized will be identified with particularity.
(Prior code § 2.3.1.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Any person charged with an offense for which he or she may be prosecuted under the laws of the Confederated Tribes of the Chehalis Reservation and those of another jurisdiction may be prosecuted under applicable law in the Tribal Court whether or not the other jurisdiction prosecutes the person.
(Prior code § 2.3.1.040; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
All criminal prosecutions for violation of the criminal laws of the Tribe shall be initiated by complaint. A complaint is a written statement sworn to by the complaining witness or by the prosecutor based on probable cause and charging that a named individual has committed a particular criminal offense.
(Prior code § 2.3.2.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Complaints shall contain:
A.
The signature of the complaining witness or prosecutor sworn to before a Tribal Court judge, judicial officer, Court Clerk, or notary public; and
B.
A written statement by the complaining witness or prosecutor describing as accurately as possible the nature of the offense committed including the time and place; and
C.
The name and address or description of the person alleged to have committed the offense; and
D.
The section of the Chehalis Tribal Code or ordinance allegedly violated.
The prosecutor, a member of Tribal law enforcement, or the Court Clerk may assist community members in drawing up complaints. The prosecutor shall screen the complaints for sufficiency. Complaints shall then be submitted without unnecessary delay to the judge to determine whether a warrant or summons shall be issued.
(Prior code § 2.3.2.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
If the complaint, or the complaint together with other sworn statements, is sufficient to establish probable cause to believe that a crime has been committed by the person charged, the Court shall issue a warrant pursuant to CTC § 3.30.120 instructing Tribal law enforcement officers to arrest the named accused; or in lieu thereof, the Court shall issue a summons commanding the accused to appear before the Court at a specified time and place to answer to the charge. If the accused has already been issued and has signed a citation to appear and answer the charge, on a specific date and time, another summons is not required.
(Prior code § 2.3.2.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
When there has been an arrest without a warrant, a complaint will be filed for judicial determination that probable cause exists to hold the accused on that charge. In no instance shall a complaint be filed later than the time of arraignment.
(Prior code § 2.3.2.040; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The prosecutor may move to dismiss a case at any time. A complaining witness may withdraw a complaint any time prior to a trial. Such withdrawal shall be in writing, filed with the Court Clerk with a copy given to the prosecutor. The prosecutor may elect to prosecute the complaint in spite of the complainant's withdrawal, if it is necessary for the protection or welfare of the Tribal community.
(Prior code § 2.3.2.050; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
No complaint shall be filed charging a person with a criminal offense unless the offense has been committed within a one-year period prior to the date of filing; except, there shall be no time limit for filing complaints based on incest in either criminal or civil proceedings.
(Prior code § 2.3.2.060; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
No Tribal law enforcement officer shall arrest any person for a criminal offense set out in the Chehalis Tribal Code or ordinance except when:
A.
The officer has a warrant signed by a Tribal judge commanding the arrest of such person, or the officer knows with certainty that such a warrant has been issued by this jurisdiction; or
B.
The offense occurs in the presence of the arresting officer; or
C.
The officer has reasonable cause to believe that the person to be arrested has committed an offense under this code or other law of the Tribe.
(Prior code § 2.3.2.070; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
A judge or judicial officer of the Tribal Court shall have authority to issue warrants to arrest, and such warrants shall be issued only upon a showing of probable cause in sworn written statements, or in a sworn oral statement that is recorded and witnessed. The judge or judicial officer shall refuse to issue a warrant if he or she independently finds that there is not probable cause to believe that an offense has been committed and that the offense charged has been committed by the named accused. If no probable cause is found to exist, the complaint will be dismissed. At a minimum, the arrest warrant shall contain the following information:
A.
Name or description and address, if known, of the person to be arrested;
B.
Date and time of issuance of the warrant;
C.
Reference to the offense by name;
D.
Description of the offense charged; and
E.
Signature of the issuing judge.
Arrest warrants may be executed only by a duly qualified and authorized member of Tribal law enforcement.
(Prior code § 2.3.2.080; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Every Tribal Court judge has authority to issue a bench warrant where there is personal knowledge of probable cause to arrest.
(Prior code § 2.3.2.090; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Upon arrest, the accused shall be advised of the following rights at the time that he or she is taken into custody:
A.
That he or she has the right to remain silent;
B.
That any statement made by him or her may be used against him or her in court;
C.
That he or she has the right to obtain counsel at his or her own expense.
(Prior code § 2.3.2.100; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
When otherwise authorized to arrest an accused person, a judge may, in lieu of a warrant, issue a summons commanding the accused to appear before the Court at a stated time and place to answer to the charge. The summons shall issue instead of a warrant unless the judge has reasonable cause to believe that the accused will not appear voluntarily if summoned. In that case, the judge shall proceed to issue a warrant for arrest. The summons shall contain the same information as a warrant and a copy of the complaint shall be attached to it. If the accused person fails to appear in response to a summons, a bench warrant for his or her arrest shall be issued.
(Prior code § 2.3.2.110; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The Tribal Court judge shall have the power to issue a warrant for the search and seizure of property, premises, and persons under the jurisdiction of the Court. No warrant for search and/or seizure shall issue except upon a showing of probable cause that a search will discover the following:
A.
Contraband, or otherwise criminally possessed property;
B.
Property which has been or is being used to commit a criminal offense; or
C.
Property which constitutes evidence of the commission of a criminal offense.
Probable cause to search or seize shall be supported by a sworn written or a witnessed oral statement based upon timely and reasonably reliable information.
(Prior code § 2.3.2.120; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Arrest warrants and warrants for search and seizure shall be executed only by Tribal law enforcement officers. The executing officer shall return the warrant to the Court within the time limit shown on the face of the warrant. Warrants not returned within the set time limit shall be void.
(Prior code § 2.3.2.130; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
No Tribal law enforcement officer shall conduct any search without a valid warrant except:
A.
Incident to making a lawful arrest;
B.
If consent to the search is given by a person having authority to give consent;
C.
When probable cause exists to believe that the person searched may be armed and dangerous;
D.
When the search is of a vehicle and the officer has probable cause to believe that it contains property which has been or is being used to commit a criminal offense;
E.
Search of a vehicle made incident to the completion of a regular and routine inventory after impoundment;
F.
Objects seized are in the officer's plain view; or
G.
Emergency circumstances exist, such as a situation where evidence might be destroyed or removed.
(Prior code § 2.3.2.140; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Tribal law enforcement officers shall make an inventory of all property seized by warrant or otherwise, and a copy of such inventory shall be left with the person from whom the property was taken.
A separate and special hearing shall be held by the Court to determine the disposition of all property seized by the Tribe. Upon satisfactory proof of ownership, the property shall be delivered to the owner, unless such property is unlawfully possessed property or is to be used as evidence in a pending case. Property, except contraband, taken as evidence shall be returned to the owner after final judgment. Property confiscated shall become the property of the Tribe and may be either destroyed, sold at public auction, retained for the benefit of the Tribe, or otherwise lawfully disposed of as ordered by the Court.
(Prior code § 2.3.2.150; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Arraignment shall be held in open court without unnecessary delay after the accused receives a summons or is taken into custody upon execution of a warrant.
A.
Post-Arrest Arraignment. In no case shall arraignment be held more than 72 hours (excluding weekends and holidays) after the accused has been arrested and placed in custody, unless the accused gives an informed and voluntary agreement to hold a later arraignment. If the stated 72 hours have passed without an arraignment, the accused shall be released from custody.
B.
Noncustody or Nonarrest Arraignment. If there has been no arrest or the person is not still in custody, arraignment shall be held as scheduled.
(Prior code § 2.3.3.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2002-24; Res. 2006-63; Res. 2011-020)
Before an accused is required to enter a plea to a criminal charge, the judge shall:
A.
Read to the accused the complaint and section of the Tribal code he or she is charged with violating, including the maximum authorized penalty (and determine that he or she understands them);
B.
Advise the accused of the right at trial not to testify, and the right to a speedy and public trial, the right to be fully informed of the nature and cause of the accusation, the right to confront those who would be witnesses against him or her, the right to have the Tribe subpoena witnesses on his or her behalf, the right to have a trial by jury if imprisonment is a potential penalty, the right to appeal if found guilty, the right to bail or release on personal recognizance pending trial, and the right to have assistance of legal counsel at his or her own expense;
C.
Inform the accused that the Court will postpone the plea entry for a reasonable time should the accused desire to consult with counsel; and
D.
Entertain motions to set aside the charges, such as: the complaint is insufficient on its face, probable cause is lacking, or there is a lack of jurisdiction. The Court will rule from the bench on any motions to set aside a charge.
(Prior code § 2.3.3.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The Court will not entertain motions for disqualification of the judge at the arraignment. The procedural nature of the arraignment and the protections incorporated preclude the necessity for disqualification at this time.
(Prior code § 2.3.3.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The following rules apply to entering a plea:
A.
If the accused enters a plea of not guilty to the charge, the judge shall then inform him or her of a scheduled trial date and time, and set reasonable conditions for bail or release prior to the scheduled trial. At this time the judge will further determine from the accused whether he or she desires a jury trial or waives that right.
B.
If the accused enters a plea of guilty to the charge, the judge shall determine whether the plea is made voluntarily and whether the accused understands the consequences of the plea, including the rights he or she may be waiving by that plea entry. The judge may then accept or reject the plea entered. If a guilty plea is accepted, the accused shall be given an opportunity to explain to the Court any facts in mitigation of possible sentence. The judge may then impose sentence or defer sentencing for a reasonable time in order to obtain any information deemed necessary for the imposition of a just sentence.
C.
If the accused refuses to enter a plea, or the judge has reasonable cause to believe that there is a question of the guilt of the accused, the judge shall enter a plea of not guilty on behalf of the accused and set the matter over for trial.
D.
The Court will not be bound by any plea resulting from a plea bargain agreement unless the judge has been fully advised of the agreement in open court and on the record.
E.
A plea bargain will not be accepted by the Court if there is any doubt as to the defendant's full understanding of the agreement; the judge will determine the level of understanding by personal questioning of the defendant.
(Prior code § 2.3.3.040; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Every person charged with a criminal offense before the Tribal Court shall be entitled to release from custody pending trial under whichever one or more of the following conditions is deemed necessary to reasonably assure the appearance of the person at any time lawfully required:
A.
Release on personal recognizance upon execution by the accused of a written promise to appear at trial and at all other lawfully required times;
B.
Release to the custody of a designated person or organization agreeing to ensure the appearance of the accused;
C.
Release with reasonable restrictions on the travel, association, or place of residence of the accused during the period of release;
D.
Release after deposit by the accused or another of bond either in cash or other sufficient collateral in an amount specified by the judge or by a bail schedule approved by the General Council of the Tribe. The judge has discretion to require that the accused post only a portion of the total bond, with the full sum to become due if the accused fails to appear as ordered;
E.
Release upon any other condition deemed reasonably necessary to ensure the appearance of the accused as required.
(Prior code § 2.3.3.050; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
The protection of individuals and the community demands that certain persons be held without bail or bond in exceptional circumstances. Refusal to provide release is limited to the following situations:
A.
The person has been charged with a crime of violence and (1) the person has been recently convicted of another crime of violence, or (2) the person has committed this offense while on probation, or other release for another crime of violence;
B.
The person has been charged with obstructing justice by having threatened, injured, or intimidated a judge, witness, or juror, or has attempted such threat, injury or intimidation;
C.
There is strong likelihood of flight to escape trial. This requires a documented history of such flight, or evidence or circumstances indicating that such flight is potential; or
D.
The person represents a danger to the community. This requires a pattern of behavior evidenced by past and present conduct and no conditions for release are available which would reasonably ensure the safety of the community.
(Prior code § 2.3.3.060; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Denial of a right to bail or bond will occur only after such request is made by the prosecutor, and the Court has immediately held a pretrial detention hearing and determined by clear and convincing evidence that there is a substantial probability that the accused committed the offense.
A.
Where the Court finds that denial of bail or bond is proper, an order for detention will be issued with the Court's findings of fact.
B.
Where a person is held without bail or bond, his or her case will be put on an expedited calendar and the trial will be given priority. If a conviction results, the defendant will be credited with the time served pending trial.
(Prior code § 2.3.3.070; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The Court may, in its discretion, allow a defendant to withdraw a plea of guilty at any time prior to the scheduled trial, whenever it appears that the interests of justice and fairness would be served by doing so.
(Prior code § 2.3.3.080; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Every defendant in a criminal proceeding has a guaranteed right to assistance of counsel, at his or her own expense. It is the personal responsibility of each defendant to obtain such representation if desired. Failure to obtain counsel before a scheduled hearing or trial will not normally be good cause to delay or continue a scheduled proceeding. Where no representative counsel has been retained before a proceeding commences, the Court may require the defendant to represent himself or herself.
(Prior code § 2.3.3.090; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Upon the request of any party to a criminal proceeding, or upon motion by a judge of the Tribal Court, the Court shall issue subpoenas to compel the appearance and testimony of witnesses, or the production of books, records, documents or any other physical evidence which is relevant and necessary to the determination of the issues, and is not an undue burden on the person possessing the evidence. The Court Clerk may act on behalf of the Court and issue subpoenas which are to be served within the Tribe's jurisdiction.
A subpoena shall bear the signature of a judge of the Tribal Court and it shall state the name of the Court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the time and place where the witness is to appear or the evidence is to be produced.
(Prior code § 2.3.4.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
A subpoena may be served at any time and place within or without the Tribe's jurisdiction, but any subpoena to be served outside the Tribe's jurisdiction shall be issued personally by a judge of the Tribal Court. A subpoena may be served by any Tribal law enforcement officer or other person appointed by the Court for such purpose. Service of a subpoena shall be made by delivering a copy of it to the person named or by leaving a copy at his or her place of residence with any competent person 14 years of age or older who also resides there.
(Prior code § 2.3.4.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
In the absence of justification satisfactory to the Court, a person who fails to obey a subpoena may be deemed to be in contempt of court and a bench warrant may be issued for his or her arrest.
(Prior code § 2.3.4.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The Tribe through its prosecutor or representative shall make an opening statement setting forth the criminal charge against the defendant. The defendant shall then have an opportunity to make a statement of his or her position. The Tribe shall then call witnesses and produce evidence as it may see fit. The defendant shall then have an opportunity to call witnesses and produce evidence. All parties shall have the right to cross-examine witnesses produced by the other side.
(Prior code § 2.3.5.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
At the conclusion of all the evidence, the defendant, then the Tribe, shall be given an opportunity to make a closing argument. Further argument may be allowed in the Court's discretion.
(Prior code § 2.3.5.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
In all criminal proceedings, the defendant must be found either "not guilty" or found "guilty beyond a reasonable doubt."
(Prior code § 2.3.5.040; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Where a verdict of "not guilty" is found by either the Court or a jury, judgment shall be pronounced immediately and the defendant shall be released from custody at that time. Where the Court or jury renders a verdict of "guilty," the judgment shall be pronounced upon the defendant in open court. The Court may sentence the convicted person immediately or schedule a time and place for later sentencing.
(Prior code § 2.3.5.050; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The Court shall impose sentence on a defendant within the limits prescribed by the Chehalis Tribal Code or ordinance subsection defining the offense. The Court shall advise convicted defendants of their right to appeal upon pronouncing a guilty verdict.
(Prior code § 2.3.6.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Offenses under Title 4, criminal code, and any other offenses under the laws of the Confederated Tribes of the Chehalis Reservation which are classified as Class A, B, C, and D shall carry the penalties set forth in this section.
CLASS | MAXIMUM | MINIMUM |
|---|---|---|
A | $5,000 fine and/or 1 year in jail | $2,500 fine and/or 6 months in jail |
B | $5,000 fine and/or 1 year in jail | no minimum |
C | $1,250 fine and/or 3 months in jail | no minimum |
D | $500 fine and/or 30 days in jail | no minimum |
The minimum penalties are mandatory except as provided under CTC § 3.30.450, Suspended sentences – Limitations, and CTC § 3.40.070, Sentencing of minor defendants.
(Prior code § 2.3.6.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
For subsequent violations of the criminal laws of the Chehalis Tribe, the Court shall impose more than the minimum penalty established for the offense. Multiple offenses arising from the same incident shall not constitute "subsequent" violations for purposes of this section. Three years from the date of conviction, a Class C and Class D offense shall no longer be considered a prior violation for purposes of this section. The Court shall impose one or more of the following penalties for subsequent violations of the criminal laws of the Tribe:
A.
A fine and/or jail time in excess of the minimum penalty established for the offense;
B.
Community service for the benefit of the Tribe;
C.
Forfeiture of property lawfully seized in connection with the offense; and/or
D.
Suspension or revocation of some or all privileges, licenses, and permits granted by the Tribe.
(Prior code § 2.3.6.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Under CTC § 3.30.260, a defendant shall be credited with the time served in jail pending trial when he or she is held without bail or bond. Other defendants may receive credit for time served, in the discretion of the Court.
(Prior code § 2.3.6.040; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
A person who has been found guilty of an offense must be physically in Court at the time that sentence is imposed.
(Prior code § 2.3.6.050; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
In addition to any penalties imposed, the Court shall require a convicted offender who has inflicted injury upon the person or property of another to make restitution or compensate the injured person by means of a surrender of property, payment of money damages, or the performance of any other act for the benefit of the injured party. The amount of restitution shall be within the discretion of the Court to determine. In the case of a death, the Court may require the defendant to pay funeral expenses and restitution to the victim's survivors.
(Prior code § 2.3.6.060; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
If a convicted offender is unable to pay a money fine or costs ordered by the Court, the Court shall allow the convicted person a reasonable amount of time to pay the entire sum or allow him or her to make reasonable installment payments to the Court Clerk at specified intervals until the entire sum is paid. If the offender defaults on such payments, the Court may find him or her in contempt of court.
(Prior code § 2.3.6.070; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Upon a showing of financial hardship, the Court may sentence an offender to perform community service hours in lieu of payment of the fine imposed, at the rate of the minimum wage set by the United States Department of Labor. There shall be assessed against the minimum wage paid, a probation services charge of 20 percent of the wage to be paid as and for community service monitoring and administrative charge. The probation services charge shall be paid to the Tribe. The Court shall order the offender to pay at least 50 percent of the fine in cash, in all cases; community service hours in lieu of a fine shall only be imposed for Class C and D criminal offenses, offenses committed by minors and civil fishing cases. After the satisfaction of the community service hours set by the Court, and if the offender cannot reasonably comply with the order to pay the remaining fine imposed, the probation officer can recommend that the unpaid monetary assessments be converted to community service hours; the offender must file an order on conversion of monetary assessment with the Court, within 30 days after the last day worked on community service.
(Prior code § 2.3.6.080; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2001-61; Res. 2006-63; Res. 2011-020; Res. 2016-17)
The Court may suspend all or part of a sentence of jail time on such conditions as to the Court seem just. The Court shall have no authority to suspend the minimum fine for a particular offense.
(Prior code § 2.3.6.090; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Where a sentence of imprisonment has been imposed on a convicted offender, the Court may in its discretion suspend the serving of such sentence and release the offender on probation under any reasonable conditions deemed appropriate by the Court; provided, that the period of probation shall not exceed the maximum term of sentence set for such offense in the Tribal code or ordinance.
(Prior code § 2.3.6.100; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Any offender who violates the terms of his or her probation may be required by the Court to serve the sentence originally imposed or such part of it as the Court may determine to be suitable, giving consideration to all the circumstances; provided, that such revocation of probation shall not be ordered without a hearing before the Court at which the offender shall have the opportunity to explain the reasons for the violation.
After the hearing, the Court may order the offender to be confined for up to 60 days in jail per probation violation, in addition to his or her original imposed sentence. The Tribe shall be reimbursed for indigent defense costs for offenders who are detained solely for violation of a condition of probation. An offender may be held in jail pending the hearing, and any time served while awaiting the hearing shall be credited against confinement imposed for a violation. The Court shall retain jurisdiction for the purpose of holding the violation hearing and imposing a sanction.
If an offender violates any condition or requirement of a sentence, a probation officer may cause the arrest of the offender without a warrant. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, an offender may be required to submit to a search and seizure of the offender's person, residence, automobile, or other personal property. The facts and circumstances of the conduct of the offender shall be reported by the probation officer, with recommendations, to the Court.
The statement of facts given to law enforcement by the probation officer that an offender has violated his or her condition or requirement of a sentence will serve as probable cause for an arrest.
If a probation violation offender is arrested under this section, the offender shall be confined and detained in jail. Offenders of probation violation shall not be released from custody on bail or personal recognizance, except upon approval of the Court, pursuant to a written order.
(Prior code § 2.3.6.110; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2001-61; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Any offender sentenced by the Court to detention or labor shall be eligible for parole at such time and under such reasonable conditions as the Court may set. Any offender who violates the conditions of his or her parole may be required by the Court to serve the whole of the original sentence; provided, that such revocation of parole shall not be ordered without a hearing before the Court at which time the offender shall have an opportunity to explain the reasons for violations.
(Prior code § 2.3.6.120; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
A person charged with a Class C or Class D crime may request the Court to be considered for a deferred prosecution program under this section. The request shall be made at arraignment or before trial. The person's request must state the following:
A.
That the offense charged is the result of or caused by alcohol problems or drug problems for which the person is in need of treatment;
B.
Without treatment, there is a great probability of future recurrence of similar misconduct; and
C.
A case history of the person's alcohol or drug problems.
(Prior code § 2.3.7.010; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Upon consideration of the request, the Court may continue the arraignment and refer the person to the Tribe's or other alcohol or drug program for diagnostic investigation and evaluation. The counselor shall make a written report to the Court with a copy to the defendant including the following findings:
A.
Whether the person suffers from the problem alleged;
B.
Whether there is a probability that similar misconduct will recur in the future if the problem is not treated;
C.
The type of treatment recommended;
D.
Whether effective treatment for the problem is available; and
E.
If treatment is recommended, a treatment plan specifying the location, nature, length, treatment time schedule, and cost.
(Prior code § 2.3.7.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
If the report recommends treatment, the Court shall examine the plan. If the Court approves the plan, and the defendant agrees to comply with the terms and conditions of the plan and agrees to pay the cost thereof, or arrange for the treatment, the Court shall order that the defendant be accepted for deferred prosecution. If treatment is not recommended or not approved or the defendant declines to accept the treatment plan, the defendant shall be arraigned on the charges.
(Prior code § 2.3.7.030; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Evidence pertaining to or resulting from the defendant's request and/or investigation or report is inadmissible in any trial on the charges but may be used after conviction in determining a sentence.
(Prior code § 2.3.7.040; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
If a defendant in a deferred prosecution program fails or neglects to fulfill any term or condition of the treatment plan, the facility or agency administering the treatment shall immediately report the breach to the Court. Upon receiving such a report, the Court shall hold a hearing to determine whether the defendant should be removed from the deferred prosecution program. If removed from deferred prosecution, the defendant shall be arraigned on the original charge.
(Prior code § 2.3.7.050; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
If a defendant is convicted in any court of a subsequent offense similar to the one for which he or she is in a deferred prosecution program, the Court shall remove the defendant from the deferred prosecution program and arraign the defendant on the original charge.
(Prior code § 2.3.7.060; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020; Res. 2016-17)
Two years from the date of the Court's approval of deferred prosecution of the defendant, the charges against the defendant shall be dismissed with prejudice.
(Prior code § 2.3.7.070; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
Delay in bringing a case to trial caused by a defendant requesting deferred prosecution shall not be grounds for dismissal.
(Prior code § 2.3.7.080; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)
The General Council may amend this title as needed.
(Prior code § 2.3.8.020; GC vote 10/11/1988; GC vote 3/7/1989; Res. 2006-63; Res. 2011-020)