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CHAPTER 23A-8

(RULE 12) PLEADINGS AND PRETRIAL MOTIONS

23A-8-1      (Rule 12(a)) Pleadings enumerated--Motions replacing previous forms of pleadings.
23A-8-2      Grounds for dismissal of indictment or information on motion.
23A-8-3      (Rule 12(b)) Defenses and objections raised by motion--Issues that must be raised before trial.
23A-8-4      (Rule 12(c)) Setting time for making and hearing motions.
23A-8-5      Subsequent hearing on motion to suppress newly discovered evidence.
23A-8-6      (Rule 12(d)(1)) Notice to defendant of prosecutor's intention to use specified evidence.
23A-8-7      (Rule 12(d)(2)) Reserved.
23A-8-8      (Rule 12(e)) Determination of motions before trial--Deferment to trial--Findings as to fact.
23A-8-9      (Rule 12(f)) Waiver of defenses or objections by failure to raise before trial--Relief from waiver.
23A-8-10      (Rule 12(g)) Record of hearing on motions.
23A-8-11      (Rule 12(h)) Continuation in custody or on bail after grant of defendant's motion--Subsequent prosecution for same offense--Limitation statutes.


     23A-8-1.   (Rule 12(a)) Pleadings enumerated--Motions replacing previous forms of pleadings. Except for those offenses triable under § 23A-4-2, pleadings in criminal proceedings are the complaint, the indictment, and the information. The pleas are not guilty, not guilty and not guilty by reason of insanity, guilty but mentally ill, guilty, and nolo contendere. All other pleas and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by a motion to dismiss or to grant appropriate relief as provided in this title.

Source: SDC 1939 & Supp 1960, § 34.3006; SDCL, § 23-32-3; SL 1978, ch 178, § 107; SL 1983, ch 174, § 7.


     23A-8-2.   Grounds for dismissal of indictment or information on motion. Upon motion of a defendant made pursuant to subdivision 23A-8-3(1), (2), or (3), the court must dismiss an indictment or information in any of the following cases:
             (1)      When it is not found, endorsed, and presented or filed as prescribed by this title;
             (2)      When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;
             (3)      When it does not substantially conform to the requirements of this title;
             (4)      When more than one offense is charged in a single count;
             (5)      When it does not describe a public offense;
             (6)      When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;
             (7)      When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged;
             (8)      When a person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in § 23A-5-11; or
             (9)      When a defendant charged by information did not have or waive a preliminary hearing before the information was filed.

Source: Supreme Court Rule 382, 385, 1939; SDC 1939 & Supp 1960, §§ 34.3509, 34.3514; SDCL, §§ 23-36-1, 23-36-8; SL 1978, ch 178, § 107-A; SL 1979, ch 159, § 46.


     23A-8-3.   (Rule 12(b)) Defenses and objections raised by motion--Issues that must be raised before trial. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
             (1)      Defenses and objections based on defects in the institution of the prosecution;
             (2)      Defenses and objections based upon prior conviction or acquittal;
             (3)      Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings);
             (4)      Motions to suppress evidence;
             (5)      Requests for discovery under chapter 23A-13; or
             (6)      Requests for a severance of charges or defendants under § 23A-11-2.

Source: SL 1978, ch 178, § 108.


     23A-8-4.   (Rule 12(c)) Setting time for making and hearing motions. A court may at the time of an arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.

Source: SL 1978, ch 178, § 109.


     23A-8-5.   Subsequent hearing on motion to suppress newly discovered evidence. A court may set a subsequent hearing after the hearing set pursuant to § 23A-8-4 for the purpose of hearing motions to suppress newly discovered evidence.

Source: SL 1978, ch 178, § 112.


     23A-8-6.   (Rule 12(d)(1)) Notice to defendant of prosecutor's intention to use specified evidence. At an arraignment, or as soon thereafter as is practical, the prosecuting attorney may give notice to the defendant of his intention to use specified evidence at the trial, in order to afford the defendant an opportunity to raise objections to such evidence prior to the trial in accordance with subdivision § 23A-8-3(4).

Source: SL 1978, ch 178, § 110; SL 1979, ch 159, § 47.


     23A-8-7.   (Rule 12(d)(2)) Reserved


     23A-8-8.   (Rule 12(e)) Determination of motions before trial--Deferment to trial--Findings as to fact. A motion made before a trial shall be determined before the trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after the verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

Source: SL 1978, ch 178, § 113.


     23A-8-9.   (Rule 12(f)) Waiver of defenses or objections by failure to raise before trial--Relief from waiver. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by a court pursuant to § 23A-8-4, or prior to any extension thereof made by the court, shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver.

Source: Supreme Court Rule 382, 1939; SDC 1939 & Supp 1960, § 34.3509; SDCL, § 23-36-2; SL 1978, ch 163; SL 1978, ch 178, § 114.


     23A-8-10.   (Rule 12(g)) Record of hearing on motions. A verbatim record shall be made of all proceedings at the hearing, including any findings of fact and conclusions of law which are made orally.

Source: SL 1978, ch 178, § 115.


     23A-8-11.   (Rule 12(h)) Continuation in custody or on bail after grant of defendant's motion--Subsequent prosecution for same offense--Limitation statutes. If a court grants a motion based on a defect in the institution of the prosecution or in the indictment or information, it may also order that the defendant be continued in custody or that his bail be continued for a specified time pending the filing of a new indictment or information. An order setting aside an indictment or information pursuant to this section is no bar to a further prosecution for the same offense. Nothing in this section shall be deemed to affect the provisions of any statute relating to periods of limitations.

Source: SDC 1939 & Supp 1960, §§ 34.3512, 34.3513; SDCL, §§ 23-36-6, 23-36-7; SL 1978, ch 178, § 116.


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