Tribe: Winnemucca Indian Colony of Nevada
4-01-130
Plea Procedures
1. Pleas
a. Not Guilty. A plea of not guilty puts in issue every element of the charged
offense, and the case shall proceed according to the case management
schedule. A defendant pleading not guilty must inform the Judge at the time of
arraignment if a jury trial is requested.
b. Guilty. A plea of guilty may be accepted by a Judge only after due consideration
of the views of the parties and interest of the Colony in the effective administration of justice. The Court may not accept a plea of guilty without first
determining:
i.
ii.
iii.
That the plea is voluntary and not the result of force or threats or of
promises apart from a plea agreement. The Court shall also inquire as to
whether the defendant’s willingness to plead guilty results from prior
discussions between the Prosecutor and the defendant or the defendant’s
attorney;
That the defendant understands the following:
A. The nature of the charge for which the plea is offered, any
mandatory minimum penalty, the maximum penalty, and, when
applicable, that the Court may require the defendant to make
restitution to the victim, and
B. The defendant will be giving up his or her right to a trial and right
to remain silent;
That if the defendant pleads guilty in fulfillment of a plea agreement, the
Court is not required to accept the terms of the agreement and that the
defendant may not be entitled to withdraw the plea if the agreement is not
accepted;
iv. That, in charges for which imprisonment is a possible penalty, there is a
factual basis for the plea; and
v. If a defendant voluntarily enters a plea of guilty, the Judge may impose a
sentence at that time or, on the Court’s own motion or the request of
either party, schedule a sentencing hearing in order to allow sufficient
time for the involved parties to obtain any information deemed necessary
for the imposition of a just sentence.
c. No Contest. A no contest plea differs from a plea of guilty only in that the
defendant need not make an admission of guilt but accepts an entry of
conviction.
d. Guilty or No Contest Reserving Right to Appeal. With the approval of the Court
and the consent of the Prosecutor, a defendant may enter a plea of guilty or no
contest, reserving the right, on appeal from the judgment, to review the adverse
determination of any specified pretrial motion. If the defendant prevails on
appeal, the defendant must be allowed to withdraw the plea. 2. Alternatives to Pleas.
a. Deferred Prosecution Agreement. Deferred prosecutions may not be agreed to in
cases of domestic violence or violent crimes.
i.
Conditions for Agreement. At any time, the Prosecutor and a defendant
who has counsel or who has voluntarily waived counsel may agree to the
deferral of a prosecution for a specified period of time based on one or
more of the following conditions:
A. That the defendant may not commit any offense;
B. That the defendant may not engage in specified activities,
conduct, and associations bearing a relationship to the conduct
upon which the charge against the defendant is based;
C. That the defendant shall participate in a supervised rehabilitation
program, which may include treatment, counseling, training, or
education;
D. That the defendant shall make restitution in a specified manner for
harm or loss caused by the offense, or any other reasonable conditions, including voluntary exclusion from the lands of the
Winnemucca Indian Colony; and
E. Participation in the Elders Panel or Wellness Court, but until those
are established, the Defendant may be required to do alternative
community service at the Colony.
ii.
iii.
Contents of Agreement. A deferred prosecution agreement is subject to
approval by the Tribal Court. The agreement must be in writing, must be
signed by the parties, and must state that the defendant waives the right
to speedy trial for an additional 60 days past the end of the deferral
period. The agreement may include stipulations concerning the
admissibility of the police report, specified testimony, or dispositions if the
deferred prosecution is revoked. The agreement shall be filed with the
Court.
Violations of Agreement. The prosecution must be deferred for the period
specified in the agreement unless there has been a violation of its terms.
Sanctions can be imposed for violation of the agreement, without
revoking the agreement in its entirety. The conditions of the agreement
shall be monitored by the Tribal Court until a Probation Officer is
employed.
iv. Expungement of Records. Whenever the Court has deferred the
prosecution and after expiration of the period of deferral and after the
defendant’s successful completion of any conditions of deferral, upon
motion by the Court, the defendant, or the defendant’s counsel, the Court
shall allow the expungement of the Court records of all record of the
proceedings by entering an order of dismissal of charges and
expungement, inscribing each record of the proceedings with the word
“Expunged” and sealing the file.
b. Stipulated Order of Continuance. In certain circumstances, a stipulated order of
continuance may be available.
3. Plea Negotiations and Recommendations. A Prosecutor and counsel for the defendant,
or the defendant when 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 offense or
to a lesser or related offense, the Prosecutor will do one of the following:
a. Move for dismissal of other charges; or
b. Make a recommendation, or agree not to oppose the defendant’s request, for a
particular sentence, with the understanding that the recommendation or request
may not be binding on the Court; or
c. Reduce the charges.
A plea bargain agreement may be entered into anytime prior to a verdict or finding of guilt by
Judge or jury. If a plea agreement has been reached by the parties, the Court shall, on the
record, require a disclosure of the agreement in open Court at the time the plea is offered. The
Tribal Court must announce in open court that the Court is not bound by the plea agreement.