In North Dakota, a useful law over the years for defendants charged with felonies is the misdemeanor by disposition statute. N.D.C.C. § 12.1-32-02(9) states that “[a] person who is convicted of a felony and sentenced to  imprisonment for not more than three hundred sixty days is deemed to have been convicted of a misdemeanor.” This provision has been interpreted to include one’s entire imprisonment sentence, even stayed time. Hence, a sentence of 366 days, with all but one day suspended would not be covered under the statute. Whereas, a straight sentence of 359 days of imprisonment would be covered. 

However, under N.D.C.C. § 12.1-32-02(9), the misdemeanor by disposition can be taken away if one’s probation is revoked. “[I]f an order is entered revoking a term of probation that was imposed as part of a sentence, the person is deemed to have been convicted of a felony.” 

Let’s take a look at a realistic scenario in which the statute can be used.  A common case I had earlier in my career as a public defender was where an extremely intoxicated individual was charged with terrorizing a law enforcement officer for threatening the police officer.  In several of these cases, I was able to obtain a straight-time sentence of 30 days or whatever the credit for time served was at the time of the preliminary hearing.  The significance of the straight-time sentence was that by operation of law, the conviction was deemed a misdemeanor.  This was a much more just and fair result than a felony.   

Another common scenario is when a judge sentences a defendant to supervised probation but sentences the defendant to 360 days or less.  This is quite common in theft and possession of drug cases.  The judge has afforded the defendant the ability to earn the misdemeanor when he or she completes supervised probation.

The statute is a very useful tool that the judges sometimes employ at sentencing.  It gives the defendant the opportunity to “earn” a misdemeanor in a felony case by successfully completing probation.  The statute affords the opportunity for a defendant to have a misdemeanor without having the prosecutor file a formal amended Information.  This is extremely helpful when you have a stubborn or unreasonable prosecutor.  Sometimes, the judge will see fairness and reasonableness in a misdemeanor by disposition sentence.

The one drawback to a misdemeanor by disposition versus an amendment to a misdemeanor is that there is a risk or possibility that your probation gets revoked.  If your probation is formally revoked by a court order then under the statute, the offense has now been deemed a felony.  Therefore, it is always best to get the formal amendment to a misdemeanor.  However, sometimes, the defendant just does not have that option.

If you have been charged with a felony, a misdemeanor by disposition should be one of several sentencing options that your attorney should discuss with you.  If your attorney has not discussed this option with you, you should give Mr. Edinger a call immediately.

Richard Edinger is a criminal defense attorney and has been practicing law for the last 25 years, and has zealously defended thousands of cases ranging from minor in possession of alcohol to murder. He will aggressively defend your case and focus on making the process painless for his clients and will obtain results.