Fed. R. Crim. P. 58

(a) Scope.

(1) In General. These rules apply in petty offense and other

misdemeanor cases and on appeal to a district judge in a case

tried by a magistrate judge, unless this rule provides otherwise.

(2) Petty Offense Case Without Imprisonment. In a case involving a petty offense for which no sentence of imprisonment

will be imposed, the court may follow any provision of these

rules that is not inconsistent with this rule and that the court

considers appropriate.

(3) Definition. As used in this rule, the term ‘‘petty offense

for which no sentence of imprisonment will be imposed’’

means a petty offense for which the court determines that, in

the event of conviction, no sentence of imprisonment will be

imposed.

(b) Pretrial Procedure.

(1) Charging Document. The trial of a misdemeanor may proceed on an indictment, information, or complaint. The trial of

a petty offense may also proceed on a citation or violation notice.

(2) Initial Appearance. At the defendant’s initial appearance

on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following:

70 Rule 58 FEDERAL RULES OF CRIMINAL PROCEDURE

(A) the charge, and the minimum and maximum penalties, including imprisonment, fines, any special assessment under 18 U.S.C. § 3013, and restitution under 18 U.S.C.

§ 3556;

(B) the right to retain counsel;

(C) the right to request the appointment of counsel if the

defendant is unable to retain counsel—unless the charge is

a petty offense for which the appointment of counsel is not

required;

(D) the defendant’s right not to make a statement, and

that any statement made may be used against the defendant;

(E) the right to trial, judgment, and sentencing before a

district judge—unless:

(i) the charge is a petty offense; or

(ii) the defendant consents to trial, judgment, and

sentencing before a magistrate judge;

(F) the right to a jury trial before either a magistrate

judge or a district judge—unless the charge is a petty offense;

(G) any right to a preliminary hearing under Rule 5.1,

and the general circumstances, if any, under which the defendant may secure pretrial release; and

(H) that a defendant who is not a United States citizen

may request that an attorney for the government or a federal law enforcement official notify a consular officer from

the defendant’s country of nationality that the defendant

has been arrested—but that even without the defendant’s

request, a treaty or other international agreement may require consular notification.

(3) Arraignment.

(A) Plea Before a Magistrate Judge. A magistrate judge

may take the defendant’s plea in a petty offense case. In

every other misdemeanor case, a magistrate judge may

take the plea only if the defendant consents either in writing or on the record to be tried before a magistrate judge

and specifically waives trial before a district judge. The

defendant may plead not guilty, guilty, or (with the consent of the magistrate judge) nolo contendere.

(B) Failure to Consent. Except in a petty offense case, the

magistrate judge must order a defendant who does not consent to trial before a magistrate judge to appear before a

district judge for further proceedings.

(c) Additional Procedures in Certain Petty Offense Cases. The

following procedures also apply in a case involving a petty offense

for which no sentence of imprisonment will be imposed:

(1) Guilty or Nolo Contendere Plea. The court must not accept a guilty or nolo contendere plea unless satisfied that the

defendant understands the nature of the charge and the maximum possible penalty.

(2) Waiving Venue.

(A) Conditions of Waiving Venue. If a defendant is arrested, held, or present in a district different from the one

where the indictment, information, complaint, citation, or

violation notice is pending, the defendant may state in

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writing a desire to plead guilty or nolo contendere; to

waive venue and trial in the district where the proceeding

is pending; and to consent to the court’s disposing of the

case in the district where the defendant was arrested, is

held, or is present.

(B) Effect of Waiving Venue. Unless the defendant later

pleads not guilty, the prosecution will proceed in the district where the defendant was arrested, is held, or is

present. The district clerk must notify the clerk in the

original district of the defendant’s waiver of venue. The

defendant’s statement of a desire to plead guilty or nolo

contendere is not admissible against the defendant.

(3) Sentencing. The court must give the defendant an opportunity to be heard in mitigation and then proceed immediately to sentencing. The court may, however, postpone sentencing to allow the probation service to investigate or to permit either party to submit additional information.

(4) Notice of a Right to Appeal. After imposing sentence in a

case tried on a not-guilty plea, the court must advise the defendant of a right to appeal the conviction and of any right to

appeal the sentence. If the defendant was convicted on a plea

of guilty or nolo contendere, the court must advise the defendant of any right to appeal the sentence.

(d) Paying a Fixed Sum in Lieu of Appearance.

(1) In General. If the court has a local rule governing forfeiture of collateral, the court may accept a fixed-sum payment

in lieu of the defendant’s appearance and end the case, but the

fixed sum may not exceed the maximum fine allowed by law.

(2) Notice to Appear. If the defendant fails to pay a fixed

sum, request a hearing, or appear in response to a citation or

violation notice, the district clerk or a magistrate judge may

issue a notice for the defendant to appear before the court on

a date certain. The notice may give the defendant an additional opportunity to pay a fixed sum in lieu of appearance.

The district clerk must serve the notice on the defendant by

mailing a copy to the defendant’s last known address.

(3) Summons or Warrant. Upon an indictment, or upon a

showing by one of the other charging documents specified in

Rule 58(b)(1) of probable cause to believe that an offense has

been committed and that the defendant has committed it, the

court may issue an arrest warrant or, if no warrant is requested by an attorney for the government, a summons. The

showing of probable cause must be made under oath or under

penalty of perjury, but the affiant need not appear before the

court. If the defendant fails to appear before the court in response to a summons, the court may summarily issue a warrant for the defendant’s arrest.

(e) Recording the Proceedings. The court must record any proceedings under this rule by using a court reporter or a suitable recording device.

(f) New Trial. Rule 33 applies to a motion for a new trial.

(g) Appeal.

(1) From a District Judge’s Order or Judgment. The Federal

Rules of Appellate Procedure govern an appeal from a district

judge’s order or a judgment of conviction or sentence.

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(2) From a Magistrate Judge’s Order or Judgment.

(A) Interlocutory Appeal. Either party may appeal an

order of a magistrate judge to a district judge within 14

days of its entry if a district judge’s order could similarly

be appealed. The party appealing must file a notice with

the clerk specifying the order being appealed and must

serve a copy on the adverse party.

(B) Appeal from a Conviction or Sentence. A defendant may

appeal a magistrate judge’s judgment of conviction or sentence to a district judge within 14 days of its entry. To appeal, the defendant must file a notice with the clerk specifying the judgment being appealed and must serve a copy

on an attorney for the government.

(C) Record. The record consists of the original papers and

exhibits in the case; any transcript, tape, or other recording of the proceedings; and a certified copy of the docket

entries. For purposes of the appeal, a copy of the record of

the proceedings must be made available to a defendant

who establishes by affidavit an inability to pay or give security for the record. The Director of the Administrative

Office of the United States Courts must pay for those copies.

(D) Scope of Appeal. The defendant is not entitled to a

trial de novo by a district judge. The scope of the appeal

is the same as in an appeal to the court of appeals from a

judgment entered by a district judge.

(3) Stay of Execution and Release Pending Appeal. Rule 38 applies to a stay of a judgment of conviction or sentence. The

court may release the defendant pending appeal under the law

relating to release pending appeal from a district court to a

court of appeals.

(As added May 1, 1990, eff. Dec. 1, 1990; amended Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec.

1, 1997; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006;

Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014.)