Tribe: Winnemucca Indian Colony of Nevada
4-01-170
Judgment and sentencing
1. Judgment. The verdict of the jury or the judgment shall be rendered in open Court.
2. Sentencing. Sentences shall be pronounced within a reasonable time. Sentencing shall
be imposed on all offenses pursuant to Tribal law. To the extent that any foreign
provisions incorporated into Tribal law provide a penalty that conflicts with Tribal
sentencing law, Tribal sentencing law will control. Unless the Court otherwise orders, all
sentences stemming from offenses occurring in the same transaction or course of
conduct are presumed to run concurrently and not consecutively. Where the Court in its
discretion deems it appropriate, a form of traditional punishment may be imposed in
addition to or in place of any punishment provided in this code if that traditional
punishment has been adopted by the Council by Resolution as an alternative
punishment for conviction of the crime and if traditional punishment is recommended or
chosen, then the punishment shall be imposed by the Council by majority vote and shall
be limited by Resolution of the Council:
a. Considerations. Considerations in sentencing include:
i.
The crime committed;
ii.
iii.
The prospects of rehabilitation of the offender;
The circumstances under which the crime was committed;
iv. The criminal history of the offender;
v. The safety of the community, victim, or the offender;
vi. Statements of the victim;
vii. Alternatives to imprisonment available for the offender;
viii. The ability of the defendant to pay a fine; and
ix. Any other consideration the Court deems relevant. b. Penalties and Consequences. An offender found guilty of an offense may be
sentenced to one or more of the following penalties and/or consequences:
i.
Imprisonment for a period of time not to exceed the maximum permitted
for the offense;
ii.
iii.
A fine in an amount not to exceed the maximum permitted for the offense;
Community service, if the community service is monitored by an
acceptable party and the Council has adopted a Resolution authorizing
community service;
iv. Any diagnostic, therapeutic, or rehabilitative measures, treatments, or
services deemed appropriate;
v. Restitution to a victim of an offense for which the offender was convicted;
vi. Participation in an Elders Panel or Wellness Court;
vii. Suspension of all or part of the sentence for a reasonable time, not to
exceed three years, under such terms imposed by the Court;
viii. Deferred imposition of sentence with reasonable restrictions and
conditions monitored by the Tribal Probation Officer, or if no Tribal
Probation Officer has been designated, then the Tribal Court, and with
the following characteristics (does not apply to the Class F offenses):
A. he record of the offense, based on criminal history, shall be
expunged upon satisfactory performance by the offender of the
restrictions and conditions of deferral for a period not to exceed
one year for Class A, B, C, and D offenses, and three years for a
Class E offense; and
B. Upon a finding of violation of a restriction or condition of deferral,
an appropriate sanction may be ordered, including imposition of
sentence;
ix. Prohibiting the offender from owning or carrying a dangerous weapon;
x. Restricting the offender’s freedom of movement;
xi. Restricting the offender’s freedom of association;
xii. Requiring the offender, if legally employed, to remain employed and, if
unemployed, to actively seek legal employment;
xiii. Subjecting the offender to search of their residence, vehicle, and person;
and
xiv. Any requirement or limitation intended to improve the mental or physical
health or marketable skills of the offender.
c. Pre-Sentence Report. The Court may order or consider any pre-sentence reports
offered by the parties. The offender and the offender’s counsel shall be afforded
an opportunity to examine any pre-sentence report and to cross-examine the
preparer of such report on the basis for any sentencing recommendations
contained in the report. The pre-sentence report must be submitted to the Tribal
Court under oath.
d. Imposition of Sentence. No sentence shall be imposed until:
i.
The prosecution and defense have had an opportunity to present
evidence, witnesses, and an argument regarding the appropriateness of a
sentencing option; and
ii.
The Judge has given the defendant an opportunity to inform the Court of
any extenuating or mitigating circumstances which should be considered
by the Court in imposing penalties.
e. Incarceration. If the offender is sentenced to imprisonment, the offender shall be
discharged from custody after satisfactorily fulfilling the conditions of the imposed
sentence or upon earlier order of the Court. f.
Credit for Time Served. A defendant subject to a judgment of imprisonment must
be allowed credit for each day of incarceration prior to or after conviction for that
offense. This does not include time served pursuant to a violation of a release
order. No credit shall be allowed for time served on other charges and/or for
other jurisdictions unless specifically provided by the Court.
i.
ii.
Credit Pursuant to Modification. If a defendant has served any of the
defendant’s sentence under a commitment based upon a judgment that is
subsequently declared invalid or that is modified during the term of
imprisonment, the time served must be credited against any subsequent
sentence received upon a new commitment for the same criminal act or
acts. This does not include time served pursuant to a violation of a
release order.
Application of Credit toward Fines. Any person incarcerated on a bailable
offense who does not supply bail and against whom a fine is levied on
conviction of the offense must be allowed a credit for each day of
incarceration prior to conviction, except that the amount allowed or
credited may not exceed the amount of the fine. The daily rate of credit
for incarceration is $50.00 per day, unless otherwise set by the Board of
Directors. This does not include time served pursuant to a violation of a
release order.
g. Probation. After conviction by plea or verdict of guilty, the Court may, upon
application or its own motion, summarily grant or deny probation. The Court may
set a subsequent hearing to consider the matter of probation and the conditions
of such probation.
h. Restitution. When restitution is ordered, the Court shall specify the amount,
method of payment, and payment schedule imposed. Before restitution may be
ordered, the defendant shall receive notice of the amount and terms requested
and shall be entitled to a hearing upon his or her timely request.
i.
i.
Civil Actions. The fact that restitution was ordered is not admissible as
evidence in a civil action. The Court trying the civil action shall determine
the amount of any reduction due to payment of restitution by an offender
under this section. However, in the event that criminal and civil actions
against an offender arising from the same transaction or events are heard
in courts of different jurisdictions, one of which is the Tribal Court, the
Tribal Court shall adjust offender’s payments within its jurisdictional
control for restitution or otherwise to assure that an injured party does not
recover twice for the same harm. Restitution for time lost by the Colony
may be imposed and will be calculated by the Judge at the time of the
order of restitution.
Payment of Fines and Restitution. All monies collected as the result of a fine or
restitution imposed by the Court shall be paid to the Court. Upon receiving the
monies:
i.
ii.
iii.
A receipt shall be issued to the paying person;
The account of the offender shall be credited, noting whether the fine is
paid in full or what balance, if any, remains due; and
For fines, the monies shall be transferred to the General Fund of the
Winnemucca Indian Colony unless otherwise specifically directed by a
provision of this code; for restitution, the monies shall be transferred to
the person to whom restitution is to be paid. j.
Failure to Pay. If a defendant sentenced to pay a fine or restitution fails to make
payment as ordered, the Probation Officer or the Prosecutor may move that the
offender show cause why sanctions should not be imposed for failure to pay.
i.
Show Cause Hearing. Notice of a show cause hearing shall be served on
the offender personally or by first class mail at the address provided by
the offender at least five days prior to the date set for hearing. Notice
shall also be served on the victim if the show cause was issued for failure
to pay restitution. Unless the offender shows that the nonpayment was
not attributable to an intentional refusal to obey a Tribal Court order or the
offender’s failure to make a good faith effort to make the ordered
payments, the Court may impose sanctions, including incarceration. If the
Court determines that the offender’s nonpayment was not attributable to
an intentional refusal, the Court may modify the original sentence,
judgment, or order, allowing the offender additional time to pay the fine or
restitution or reducing the amount owed.
k. Dismissal and Expungement after Deferred Sentencing. Whenever the Court has
deferred the imposition of sentence, and after expiration of the period of deferral
and 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 defendant to withdraw his or her plea of guilty or strike the verdict or
judgment expunging 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.
3. Fixing and Collection of Costs. Upon conviction or judgment of any offense, costs will be
assessed to the defendant as established by the Court. In an exceptional case, the
Court may waive costs. Such costs shall be payable to the Court Clerk, and may include:
witness fees; cost of service of Court papers; and any other costs sustained by the Court
in connection with the matter.