Statutes | Law and Order Code of the Fort McDowell Yavapai Community, Arizona Chapter 5 Article III. X Rule 56 | 2019
(a) Time Limitations. A sentence shall be imposed within thirty (30) days of entry of judgment. However, the Court may extend the time for sentencing if the Court orders a Pre-Sentence Investigation and Report or for other good cause. The Court may suspend all or any part of the fine or sentence imposed upon a person found guilty of violating any provisions of the Fort McDowell Law and Order Code unless specifically prohibited by the Fort McDowell Law and Order Code.
(b) Sentencing Hearing. At the Sentencing Hearing, the Nation, counsel for the defendant and the defendant will have an opportunity to comment on the probation officers recommendations and on other matters relating to the appropriate sentence. The Court will rule on any unresolved objections to the Pre-Sentencing Report. The Court may, in its discretion, permit the parties to introduce testimony or other evidence on the objections. For each matter objected to, the Court must make either a finding on the allegation or a determination that no finding is necessary because the matter in disagreement will not be taken into account in or will not affect sentencing.
(c) Presence Required at Sentencing. A defendant is required to be present at his or her Sentencing Hearing.
(d) Imposition of Sentence. Before imposing a sentence, the Court will:
1. Afford the National an opportunity to speak on behalf of the Nation and victims, if any
2. Verify that the defendant and defendants counsel have read and discussed the Pre-Sentence Report if any, and give the defendant and the defendants counsel an opportunity to comment on the contents of the Pre-Sentence Report
3. Afford the defendants counsel an opportunity to speak on behalf of the
4. Address the defendant personally and determine whether the defendant wishes to make a statement or to present any information that he or she deems relevant for sentencing purposes and
5. If sentencing is to be imposed for a crime that involves a victim, address the victim personally if the victim is present at the Sentencing Hearing and determine if the victim wishes to make a statement or present any information in relation to the sentence.
(e) Sentencing Considerations. In determining the character and duration of the sentence to be imposed, the Court shall take into consideration the circumstances under which the offense was committed, whether the offense was malicious or willful, whether the defendant has attempted to make amends, the defendants financial resources, the needs of the defendants dependents, the defendants criminal history, and statements made by the victim, if any.
(f) Sentencing Lesser Offenses. In the event that a defendant is found guilty of a lesser offense than that charged pursuant to Rule 40 of these rules, any sentence imposed may not exceed the maximum sentence allowed for that offense.
(g) Liability for Restitution. In addition to any penalty or sentence issued in any case where a victim as incurred a loss as a direct or proximate result of defendants actions, the Court shall order the defendant to make restitution to the victim of the offense or if the victim is deceased, to the victims estate subject to Rule 57.
(h) Liability for Payment of Fines. In the event a person is granted an installment plan for the payment of a fine, the Court will set a reasonable time for the payment of said fine. In the event the defendant does not comply with the installment plan, the Clerk of Court will advise the judge and a bench warrant will be issued for the arrest of said defendant.
(i) Liability for Incarceration/Treatment Expenses. In the event that the defendant is ordered to pay to the Nation the expenses relating to his/her incarceration or Court ordered treatment, the Court will, upon the defendants release schedule a hearing to determine the amount of incarceration or treatment expenses the defendant is liable for. If the defendant is a tribal member of the Fort McDowell Yavapai Nation and is otherwise eligible to receive per capita distribution, if any, the Court will order that such sum be deducted from defendants per capita distribution. If the defendant is not a tribal member of the Fort McDowell Yavapai Nation, the Court will establish an acceptable payment plan, if necessary.
(h) In Camera Proceedings. Upon motion by the defendant or the Nation, the Court may hear the statements made under this section in camera. However, the Court will make a record of any decision made for appellate purposes.
(i) Notification of Right to Appeal. After imposing sentence in a case, the Court will advise the defendant of the right to appeal and the time period within which the appeal must be filed.
(j) Application of Custom and Tradition.
1. Notice to Opposing Party. A party who intends to raise, use, rely on or argue the application of the unwritten customs, traditions, practices or beliefs of the Yavapai people as to an appropriate sentence will give notice thereof to the opposing party ten (10) days prior to sentencing. The Court, in determining the unwritten customs, traditions, practices or beliefs of the Yavapai people may consider any material or source, including testimony, whether or not submitted by a party.
2. Qualifying Traditional Leaders. When a question or issue arises as to custom and or tradition, a judge may qualify at least two (2) individuals residing in or recognized in the Community as traditional leaders or elders.
3. Testimony. Any testimony received from such individuals will be taken under oath. Questions will be asked in a manner that elicits a response that would have a general application. Cross-examination will be allowed.
4. Witnesses. Either party may call other traditional leaders as their own witnesses. Such witnesses may be cross-examined.
5. Courts Ruling. The Courts determination will be treated as a ruling on a question of law.
(k) Pronouncement of Judgment and Sentence.
1. Pronouncement of Judgment. The Court shall set forth the defendants plea or verdict, the offense of which the defendant was convicted or found guilty, and the sentencing classification for each offense.
2. 2. Sentence. In announcing the sentence to be imposed, the Court will:
a. Give the defendant an opportunity to speak on his or her own behalf
b. Indicate that it has considered any time the defendant has spent in custody on the current charge
c. Explain the terms of the sentence and/or probation and
d. Specify the commencement date for any term of incarceration imposed and a computation of time to be credited for any time served.
(l) Duty to Notify Defendant of Right to Appeal. In pronouncing judgment and sentence, the Court shall:
1. Inform the defendant of his or her right to appeal from the judgment and/or sentence and advise the defendant that failure to file a timely appeal will result in the loss of appellate rights and
2. Provide the defendant with a written notice of h s or her appellate rights and the procedures the defendant must follow to exercise them, receipt of which shall be shown on the record.
(Ft. McD. Res. No. 2007-34, ex.(Rule 56), 5-22-2007/8-1-2007)