CHAPTER 23A-27
SENTENCE AND JUDGMENT
23A-27-1 (Rule 32(a)(1)) Time of imposition of sentence--Hearing in mitigation or aggravation of punishment--Presentence hearing for juvenile--Restitution.
23A-27-1.1 Victim's oral impact statement to court before sentence imposed--Response of defendant--Victim defined.
23A-27-1.2 Notice to victim of hearing to reduce sentence--Address to court by victim--Response by defendant--Continuance.
23A-27-1.3 Victim's written impact statement to court before sentence imposed--Response of defendant--Victim defined.
23A-27-2 No forfeiture of property unless expressly imposed.
23A-27-3 (Rule 32(a)(2)) Advice as to appeal rights after sentence on not guilty plea.
23A-27-4 Contents of judgment--Imprisonment in state correctional facility--Multiple convictions--Discharge--Signature--Filing--Crime qualifier defined.
23A-27-4.1 Relief from judgment--Grounds--Time of motion.
23A-27-5 (Rule 32(c)(1)) Presentence investigation and report--Contents not disclosed unless defendant convicted.
23A-27-6 (Rule 32(c)(2)) Contents of report of presentence investigation.
23A-27-7 (Rule 32(c)(3)(A)) Parties' access to presentence report before sentence imposed--Material kept from defendant--Comments and other evidence received.
23A-27-8 (Rule 32(c)(3)(B)) Summary given to defendant in lieu of presentence report--Comments received.
23A-27-9 (Rule 32(c)(3)(C)) Disclosures from presentence report same for both parties.
23A-27-10 Return of presentence report to court services officer--Filing with board of pardons and paroles, state correctional facility, sheriffs, and jail administrators--Use of information upon written order of judge.
23A-27-11 (Rule 32(d)) Time for withdrawal of plea of guilty or nolo contendere.
23A-27-12 (Rule 32(e)) Placement on probation--Exception.
23A-27-12.1 Supervision of probationers--Performance of special conditions--Payment of costs.
23A-27-12.2 Order suspending imposition of misdemeanor sentence and placing defendant on probation--Eligibility--Revocation of suspension.
23A-27-13 Order suspending imposition of felony sentence and placing defendant on probation--Eligibility--Revocation of suspension.
23A-27-13.1 Copy of suspension order forwarded to criminal investigation division.
23A-27-13.2 Probationary supervision by court terminated upon imposition of sentence requiring supervision by executive branch.
23A-27-14 Discharge and dismissal of probationer on completion of conditions--No judgment entered--Limitation.
23A-27-14.1 Revocation or refusal of certificate of teacher, administrator, or other educational professional.
23A-27-14.2 Revocation or refusal of gaming or racing license--Conditional license.
23A-27-15 Suspension of sentence as conviction for purposes of habitual offender law.
23A-27-16 Report to criminal investigation division of discharge and dismissal of probationer--Limited purpose of record.
23A-27-17 Sealing of records on discharge of probationer--Effect of order--Future statements by defendant as to conviction.
23A-27-18 Suspension of execution of sentence--Conditions.
23A-27-18.1 Imprisonment as condition of probation or suspension of sentence--Credit for time.
23A-27-18.2 Supervision of person sentenced to county jail or state correctional facility as condition of suspension.
23A-27-18.3 Conditions required on probation or suspension of sentence.
23A-27-18.4 Suspension of correctional facility sentence--Conditions--Supervision.
23A-27-18.5 Continuing jurisdiction to revoke probation or suspended execution of sentence.
23A-27-18.6 Maintenance of good disciplinary record and compliance with program requirements.
23A-27-18.7 Inmate under suspended sentence considered parolee.
23A-27-19 Continuing jurisdiction to suspend sentence--Notice to prosecuting attorney and victim--Supervision--Revocation.
23A-27-19.1 Suspension of probationary period--Conditions.
23A-27-20 (Rule 32(f)) Hearing required to revoke probation or suspension of sentence--Bail pending hearing.
23A-27-20.1 Modification of terms and conditions of probation.
23A-27-21 Warrantless arrest and taking into custody of person on probation or with suspended sentence--Conditions.
23A-27-21.1 Court services officer--Order authorizing law enforcement officer to aid in arrest or taking into custody.
23A-27-21.2 Detainer authorizing detention of probationer to obtain warrant, revocation, bond hearing, or court order.
23A-27-22 23A-27-22, 23A-27-23. Repealed by SL 1989, ch 211, §§ 1, 2
23A-27-24 Execution against property of organization for collection of fine--Duty of officers to pay.
23A-27-25 Fines and penalties paid into county treasury--Exceptions--Use for schools.
23A-27-25.1 Provisions for payment of fines, costs and restitution, etc.--Community service.
23A-27-25.2 Costs and restitution designated as punishment.
23A-27-25.3 Failure to comply with conditions of suspended sentence--Defendant to show cause.
23A-27-25.4 Default in payment of fine or costs and restitution.
23A-27-25.5 Hearing required prior to imprisonment or jailing for failure to pay fine, costs, and restitution--Burden of proof--Computation of time to be served.
23A-27-25.6 Fine, costs, or restitution as a lien in civil action--No discharge from imprisonment until full amount paid.
23A-27-25.7 Objection to fines or costs--Defendant sentenced to state correctional facility--Hearing.
23A-27-25.8 Reduction of fines or costs for work performed--Department of Corrections to track--Defendant responsible for remainder.
23A-27-25.9 Cost of digital forensic examination--Convicted defendant to reimburse--Cost capped--Deposit--"Personal electronic device" defined.
23A-27-26 Judgment against defendant for costs--Items excluded--Enforcement as civil judgment.
23A-27-27 Fees and costs included in judgment for costs against defendant.
23A-27-28 Entry and docketing of judgment for costs against defendant.
23A-27-29 Copy of judgment for costs furnished to officer for execution.
23A-27-30 Delivery of defendant and judgment to state correctional facility.
23A-27-31 Sheriff requiring assistance while conveying defendant to prison.
23A-27-32 Restitution plan and statement of crime provided--Presentence investigation report in lieu of statement.
23A-27-33 Duties of court reporter and clerk on execution of sentence to state correctional facility.
23A-27-34 Filing by warden of official statements--Inspection by secretary and Governor.
23A-27-35 Suspension of civil rights on sentence to state correctional facility--Prisoner as witness--Restoration of rights--Voting rights.
23A-27-36 23A-27-36. Repealed by SL 2004, ch 164, § 1
23A-27-36.1 Sentence to commence after expiration of last sentence of imprisonment.
23A-27-37 23A-27-37. Repealed by SL 2004, ch 165, § 1
23A-27-38 Guilty but mentally ill finding or plea--Sentence--Treatment.
23A-27-39 Discharge of guilty but mentally ill defendant by treating facility--Report.
23A-27-40 Probation for defendant guilty but mentally ill--Treatment as condition.
23A-27-41 Facilities providing treatment for mentally ill probationer--Payment of expense.
23A-27-42 Presentence hearing on mental condition.
23A-27-43 Mental examination and report before hearing.
23A-27-44 Conduct of hearing.
23A-27-45 Commitment--Finding--Provisional sentence.
23A-27-46 Recovery of defendant--Notice--Final sentencing.
23A-27-47 Confidentiality of records--Court order.
23A-27-47.1 Motion to access court services records or testimony on court services records--Notice.
23A-27-48 23A-27-48. Repealed by SL 2011, ch 125, § 1.
23A-27-49 Posthumous sentencing of certain defendants.
23A-27-50 Substitution of personal representative for appeal purposes.
23A-27-51 Procedure for delayed appeal where applicant unconstitutionally denied right of appeal.
23A-27-52 Defendant serving in military or veteran.
23A-27-53 Probation for violation of § 22-42-5 or 22-42-5.1--Treatment--Revocation.
23A-27-1. (Rule 32(a)(1)) Time of imposition of sentence--Hearing in mitigation or aggravation of punishment--Presentence hearing for juvenile--Restitution.
Sentences shall be imposed without unreasonable delay, but not within forty-eight hours after determination of guilt. A defendant may waive the forty-eight hour delay. Before imposing a sentence, a court may order a hearing in mitigation or aggravation of punishment. If the defendant is a juvenile convicted as an adult of a Class A or Class B felony, prior to imposing a sentence, the court shall conduct a presentence hearing. At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment. The prosecuting attorney shall have an equivalent opportunity to speak to the court. The circumstances must be presented by the testimony of witnesses examined in open court, except that a witness' deposition may be taken by a magistrate in accordance with chapter 23A-12. In imposing a sentence, the court shall enter an order of restitution in accordance with chapter 23A-28.
Source: Supreme Court Rule 410, 1939; SDC 1939 & Supp 1960, §§ 34.3701, 34.3703, 34.3704; SL 1966, ch 120; SDCL §§ 23-48-5, 23-48-11, 23-48-16; SL 1978, ch 178, § 332; SL 1985, ch 192, § 1; SL 2013, ch 105, § 2.
23A-27-1.1. Victim's oral impact statement to court before sentence imposed--Response of defendant--Victim defined.
If a defendant has been convicted of an A, B, or C felony, upon request to the court by a victim and before imposing sentence on a defendant, the victim has the right to orally address the court concerning the emotional, physical, and monetary impact of the defendant's crime upon the victim and the victim's family, and may comment upon the sentence which may be imposed upon the defendant.
If a defendant has been convicted of any other felony or misdemeanor, upon request to the court by a victim and before imposing sentence on a defendant, the victim, in the discretion of the court, may orally address the court concerning the emotional, physical, and monetary impact of the defendant's crime upon the victim and the victim's family, and may comment upon the sentence which may be imposed upon the defendant.
The defendant shall be permitted to respond to such statements orally or by presentation of evidence and shall be granted a reasonable continuance to refute any inaccurate or false charges or statements.
For the purpose of this section, the term, victim, means the actual victim or the parent, spouse, next of kin, legal or physical custodian, guardian, foster parent, case worker, victim advocate, or mental health counselor of any actual victim who is incompetent by reason of age or physical condition, who is deceased, or whom the court finds otherwise unable to comment.
Source: Supreme Court Rule 86-21; SL 2004, ch 162, § 1; SL 2005, ch 129, § 1; SL 2012, ch 133, § 1; SL 2013, ch 105, § 4.
23A-27-1.2. Notice to victim of hearing to reduce sentence--Address to court by victim--Response by defendant--Continuance.
If a reduction of a previously imposed sentence requiring time to be served in a state correctional facility is proposed for consideration, the state's attorney in the county where the offense was committed shall notify the victim, at the victim's last known address, of the hearing. Upon request to the court by a victim and before reducing any sentence, the victim, in the discretion of the court, may address the court concerning the emotional, physical, and monetary impact of the crime upon the victim and may comment upon the proposed reduction of the sentence.
The defendant may respond to the victim's statements orally or by presentation of evidence and may be granted a reasonable continuance to refute any inaccurate or false charges or statements.
For the purpose of this section the term "victim" is defined as in § 23A-27-1.1.
Source: SL 1987, ch 174; SL 2023, ch 82, § 22.
23A-27-1.3. Victim's written impact statement to court before sentence imposed--Response of defendant--Victim defined.
If a defendant has been convicted of an A, B, or C felony, upon request to the court by a victim and before imposing sentence on a defendant, a victim has a right to address the court in writing concerning the emotional, physical, and monetary impact of the defendant's crime upon the victim and the victim's family, and may comment upon the sentence which may be imposed upon the defendant.
If a defendant has been convicted of any other felony or misdemeanor, upon request to the court by a victim and before imposing sentence on a defendant, the victim, in the discretion of the court, may address the court in writing concerning the emotional, physical, and monetary impact of the defendant's crime upon the victim and the victim's family, and may comment upon the sentence which may be imposed upon the defendant.
The defendant shall be permitted to respond to such statements and shall be granted a reasonable continuance to refute any inaccurate or false charges or statements.
For the purpose of this section, the term, victim, means anyone adversely impacted emotionally, physically, or monetarily by the defendant's crime.
Source: SL 2012, ch 133, § 2; SL 2013, ch 105, § 5.
23A-27-2. No forfeiture of property unless expressly imposed.
No conviction of any person for a public offense works any forfeiture of any property except in cases in which a forfeiture is expressly imposed by law.
Source: SDC 1939, § 13.0614; SDCL, § 23-48-29; SL 1978, ch 178, § 333.
23A-27-3. (Rule 32(a)(2)) Advice as to appeal rights after sentence on not guilty plea.
After imposing a sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for assignment of counsel under chapter 23A-40. There is no duty on a court to advise a defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere.
Source: SL 1978, ch 178, § 335.
23A-27-4. Contents of judgment--Imprisonment in state correctional facility--Multiple convictions--Discharge--Signature--Filing--Crime qualifier defined.
In felony and Class 1 misdemeanor cases, the judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the judgment is for imprisonment in a state correctional facility, the judgment of conviction shall include the defendant's name, the county of conviction, the judge, the prosecuting attorney, the defense attorney, the docket number, the South Dakota Codified Law citation of the crime, any crime qualifier and any habitual offender enhancement, the date of the offense, date of conviction, date of sentence, the sentence term, any suspended time, any jail time credit granted and, in the case of multiple crimes, if the sentences are to be served concurrently or consecutively. In addition, the judgment of conviction involving a sentence to a state correctional facility shall indicate if the state incarceration term is a condition of a suspended imposition or execution of sentence or condition of a term of probation as allowed under § 23A-27-18.1. In the case of multiple convictions arising from different transactions, a separate judgment of conviction shall be entered for each conviction. If a defendant is found not guilty or for any other reason is entitled to be discharged, the judgment therefor shall be entered forthwith. Judgments of conviction shall be signed by the judge and filed with the clerk.
The term, crime qualifier, as used in this section means the offenses of accessory to a crime pursuant to § 22-3-5; aiding, abetting, or advising in planning or committing a crime pursuant to § 22-3-3; an attempt to commit a crime pursuant to § 22-4-1; conspiracy to commit an offense pursuant to § 22-3-8; or criminal solicitation pursuant to § 22-4A-1.
Source: SDC 1939, § 34.3709; SL 1943, ch 129; SDCL § 23-48-14; SL 1978, ch 178, § 336; SL 1984, ch 180, § 1; SL 1987, ch 175; SL 2007, ch 150, § 1; SL 2023, ch 82, § 23.
23A-27-4.1. Relief from judgment--Grounds--Time of motion.
Within a reasonable time but not more than one year after final judgment, a court on motion of a defendant or upon its own motion may relieve a defendant from final judgment if required in the interest of justice. If the original trial was by a court without a jury, the court on motion of a defendant or upon its own motion, may vacate the judgment if entered, order a new trial or take additional testimony and direct the entry of a new judgment.
A motion under this section does not affect the finality of a judgment or suspend its operation.
If an appeal is pending, the court may grant a motion under this section only upon remand of the case.
Source: SL 1987, ch 410 (Supreme Court Rule 86-36).
23A-27-5. (Rule 32(c)(1)) Presentence investigation and report--Contents not disclosed unless defendant convicted.
A presentence investigation may be ordered in the discretion of a court. The court services officer of a court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.
The report shall not be submitted to a court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.
Source: SDC 1939, § 34.3704 as added by SL 1966, ch 120; SDCL, §§ 23-48-17, 23-48-18; SL 1977, ch 198, §§ 7, 8; SL 1978, ch 178, § 337; SL 1982, ch 28, § 20.
23A-27-6. (Rule 32(c)(2)) Contents of report of presentence investigation.
The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.
Source: SDC 1939, § 34.3704 as added by SL 1966, ch 120; SDCL, § 23-48-18; SL 1977, ch 198, § 8; SL 1978, ch 178, § 338.
23A-27-7. (Rule 32(c)(3)(A)) Parties' access to presentence report before sentence imposed--Material kept from defendant--Comments and other evidence received.
Before imposing sentence a court shall disclose the report of the presentence investigation to the defendant, the defendant's counsel, if represented by counsel, and the prosecuting attorney, but the court may exclude any recommendation as to sentence, and other material that, in the opinion of the court, contains a diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. The court shall afford the defendant, the defendant's counsel, or the prosecuting attorney an opportunity to comment thereon and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.
Source: SL 1978, ch 178, § 339; SL 1979, ch 159, § 14; SL 1997, ch 142, § 1.
23A-27-8. (Rule 32(c)(3)(B)) Summary given to defendant in lieu of presentence report--Comments received.
If a court is of the view that there is information in a presentence report which should not be disclosed under § 23A-27-7, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant, his counsel, or the prosecuting attorney an opportunity to comment thereon. The statement may be made to the parties in chambers.
Source: SL 1978, ch 178, § 340.
23A-27-9. (Rule 32(c)(3)(C)) Disclosures from presentence report same for both parties.
Any material disclosed to a defendant or his counsel shall also be disclosed to the prosecuting attorney. Any material disclosed to the prosecuting attorney shall also be disclosed to the defendant or his counsel.
Source: SL 1978, ch 178, § 341; SL 1979, ch 159, § 15.
23A-27-10. Return of presentence report to court services officer--Filing with board of pardons and paroles, state correctional facility, sheriffs, and jail administrators--Use of information upon written order of judge.
Immediately following the imposition of sentence or the granting of probation, the defendant or the defendant's counsel and the prosecuting attorney shall return to the court services officer any presentence investigation report made available to the parties. When a person is sentenced to a state correctional facility, the court shall file a copy of the person's presentence report with the Board of Pardons and Paroles and the state correctional facility. Department of Corrections officials and the Board of Pardons and Paroles may utilize information contained in the report, including any pre-plea report being used as the presentence investigation report, for the development of a rehabilitation program for the individual. If a person is sentenced to jail on felony charges, the court shall file a copy of the presentence report with the sheriff or administrator of the jail. Jail officials may utilize information contained in the report, including any pre-plea report being used as the presentence investigation report for the safety and protection of the inmate, rehabilitation programs for the inmate, and assignments to various programs offered by the jail. However, the contents of the reports may not be disclosed to the individual without a written order from the sentencing judge or the sentencing judge's successor.
Source: SL 1978, ch 178, § 342; SL 1987, ch 176; SL 1995, ch 133; SL 2023, ch 82, § 24.
23A-27-11. (Rule 32(d)) Time for withdrawal of plea of guilty or nolo contendere.
A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice a court after sentence may set aside a judgment of conviction and permit the defendant to withdraw his plea.
Source: Supreme Court Rule 391, 1939; SDC 1939 & Supp 1960, § 34.3522; SDCL, § 23-35-22; SL 1978, ch 178, § 343.
23A-27-12. (Rule 32(e)) Placement on probation--Exception.
After conviction of an offense not punishable by death or life imprisonment, a defendant may be placed on probation. No person who has been previously convicted for a crime of violence as defined in subdivision § 22-1-2(9) may be placed on probation if his second or subsequent felony conviction is for a crime of violence as defined in subdivision § 22-1-2(9).
Source: SDC 1939, § 13.5201; SDCL, § 23-57-1; SL 1978, ch 178, § 344; SL 1979, ch 159, § 16; SL 1987, ch 177, § 1.
23A-27-12.1. Supervision of probationers--Performance of special conditions--Payment of costs.
Upon receipt of an order that a defendant has been placed on probation to the court service department, the chief court services officer shall immediately assign the defendant to a court services officer for probation supervision.
All such probationers shall cooperate fully with the court services officer and comply with all directives thereby issued in their regard. If the sentencing judge has provided special conditions, including limited areas of residence or community access, required participation in treatment, enhanced reporting requirements, and use of electronic monitoring or global positioning units, for either a probationer or one released on a suspended sentence, then such person shall comply with such special conditions, and the court services officer is hereby charged with the responsibility for effecting compliance with such conditions.
Whenever the sentencing judge assesses probation costs as a condition of probation, the costs shall be paid to the clerk of the court who shall forward such costs on a monthly basis to the county treasurer for deposit in the county general fund.
Source: SDC 1939, § 13.5304 as added by SL 1955, ch 31, § 2; SL 1964, ch 33, § 6; SDCL, § 23-57-10; SL 1977, ch 198, § 10; SL 1981, ch 187; SL 2006, ch 123, § 12.
23A-27-12.2. Order suspending imposition of misdemeanor sentence and placing defendant on probation--Eligibility--Revocation of suspension.
Upon receiving a verdict or plea of guilty for a misdemeanor, a court having jurisdiction of the defendant, if satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may, without entering a judgment of guilt, and with the consent of the defendant, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court may deem best. No person who has previously been granted, whether in this state or any other, a suspended imposition of sentence for a misdemeanor, is eligible to be granted a second suspended imposition of sentence for a misdemeanor. A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period.
Source: SL 2016, ch 136, § 2.
23A-27-13. Order suspending imposition of felony sentence and placing defendant on probation--Eligibility--Revocation of suspension.
Upon receiving a verdict or plea of guilty for a felony not punishable by death or life imprisonment by a person never before convicted of a crime which at the time of conviction thereof would constitute a felony in this state, a court having jurisdiction of the defendant, if satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may, without entering a judgment of guilt, and with the consent of the defendant, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court may deem best. No person who has previously been granted, whether in this state or any other, a suspended imposition of sentence for a felony, is eligible to be granted a second suspended imposition of sentence for a felony. A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period.
Source: SL 1953, ch 202; SL 1957, ch 181; SDC Supp 1960, § 34.3708-2; SL 1961, ch 186; SDCL § 23-57-4; SL 1972, ch 149; SL 1976, ch 158, § 43-3; SL 1977, ch 197; SL 1978, ch 178, § 345; SL 1979, ch 159, § 16A; SL 2010, ch 128, § 1; SL 2016, ch 136, § 1.
23A-27-13.1. Copy of suspension order forwarded to criminal investigation division.
Within fifteen days of the filing of a written order suspending imposition of sentence pursuant to § 23A-27-13 the court shall forward a nonpublic record of the sentence to the Division of Criminal Investigation pursuant to chapters 23-5 and 23-6 which shall be retained until discharged pursuant to § 23A-27-14.
Source: SL 1983, ch 186.
23A-27-13.2. Probationary supervision by court terminated upon imposition of sentence requiring supervision by executive branch.
If a defendant is serving a probationary sentence under the supervision of the Unified Judicial System and the same or any other sentencing court imposes a sentence on the defendant requiring supervision by the executive branch, other than as provided under § 23A-27-18.1 or 23A-27-18.2, the probationary supervision by the Unified Judicial System is immediately terminated. The court that previously imposed the probationary sentence retains jurisdiction over the defendant to impose a sentence to the Department of Corrections, or any other lawful sentence.
Source: SL 2018, ch 144, § 1, eff. Mar. 9, 2018.
23A-27-14. Discharge and dismissal of probationer on completion of conditions--No judgment entered--Limitation.
Upon completion of the observance of all conditions imposed pursuant to § 23A-27-12.2 or 23A-27-13, the court services officer assigned to the defendant's case or the defendant shall bring the matter to the attention of the court, whereupon the defendant shall be discharged by the court. A formal entry of the discharge shall be entered by the clerk of courts. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person for a suspended imposition of sentence under § 23A-27-13 and only once with respect to any person for a suspended imposition of sentence under § 23A-27-12.2.
Source: SL 1953, ch 202; SL 1957, ch 181; SDC Supp 1960, § 34.3708-2; SL 1961, ch 186; SDCL, § 23-57-4; SL 1972, ch 149; SL 1976, ch 158, § 43-3; SL 1977, ch 197; SL 1978, ch 178, § 345; SL 1979, ch 159, § 17; SL 1982, ch 28, § 20; SL 2020, ch 98, § 1.
23A-27-14.1. Revocation or refusal of certificate of teacher, administrator, or other educational professional.
Notwithstanding §§ 23A-27-14 and 23A-27-17, any person who has received an order pursuant to § 23A-27-13 who is licensed or seeks to be licensed pursuant to chapter 13-42 may have the person's application refused or license revoked as provided in chapters 13-42 and 13-43.
Source: SL 1984, ch 123, § 2; SL 2002, ch 109, § 12; SL 2015, ch 98, § 28.
23A-27-14.2. Revocation or refusal of gaming or racing license--Conditional license.
Notwithstanding §§ 23A-27-14 and 23A-27-17, a person who has received an order pursuant to the provisions of § 23A-27-13 for a felony offense, who is licensed or seeks to be licensed by the South Dakota Commission on Gaming pursuant to the provisions of § 42-7B-22 or subdivision 42-7-56(12), shall have an application refused or a license revoked after a hearing as provided pursuant to chapter 1-26 unless the person has successfully completed the probationary period imposed by the court. However, the commission may grant a conditional license during the probationary period imposed by the court if the applicant or licensee proves by clear and convincing evidence to the satisfaction of the commission that the person is suitable to hold the license.
Source: SL 2000, ch 114, § 1; SL 2015, ch 220, § 4.
23A-27-15. Suspension of sentence as conviction for purposes of habitual offender law.
For the sole purposes of consideration of the sentence of a defendant for subsequent offenses or the determination of whether the defendant is an habitual offender under chapter 22-7, the fact of suspension of imposition of sentence under § 23A-27-13, whether or not discharge and dismissal have occurred, shall be considered a prior conviction.
Source: SDCL, § 23-57-4; SL 1977, ch 197; SL 1978, ch 178, § 345.
23A-27-16. Report to criminal investigation division of discharge and dismissal of probationer--Limited purpose of record.
Any discharge and dismissal under § 23A-27-14 shall be reported to the Division of Criminal Investigation pursuant to chapters 23-5 and 23-6. The court shall forward a nonpublic record of disposition to the Division of Criminal Investigation which shall be retained solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing such person for subsequent offenses and in determining whether or not, in subsequent proceedings, a person qualifies for suspension under § 23A-27-13 or chapter 22-7.
Source: SDCL, § 23-57-4; SL 1976, ch 158, § 43-3; SL 1977, ch 197; SL 1978, ch 178, § 345.
23A-27-17. Sealing of records on discharge of probationer--Effect of order--Future statements by defendant as to conviction.
Upon the discharge and dismissal of a person pursuant to § 23A-27-14, a court shall order that all official records, other than the nonpublic records to be retained by the Division of Criminal Investigation, be sealed along with all records relating to the person's arrest, indictment or information, trial, finding of guilt, and dismissal and discharge. The effect of such order is to restore such person, in the contemplation of the law, to the status he occupied before his arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of his failure to recite or acknowledge such arrest, indictment or information, or trial in response to any inquiry made of him for any purpose.
Source: SL 1975, ch 257, § 2; SDCL Supp, § 23-57-4.1; SL 1976, ch 158, § 43-4; SL 1978, ch 178, § 346.
23A-27-18. Suspension of execution of sentence--Conditions.
Upon conviction, the sentencing court may suspend the execution of any sentence imposed during good behavior, subject to such conditions or restitutions as the court may impose. The suspension order or judgment can be made only by the court in which the conviction occurred. A defendant given a suspended execution of sentence shall remain under the jurisdiction of the court. A state incarceration sentence may be imposed as a condition of a suspended execution of sentence as authorized in § 23A-27-18.1.
Source: SDC 1939, § 34.3708; SL 1939, ch 132; SL 1943, ch 128; SDCL § 23-57-5; SL 1978, ch 178, § 347; SL 1987, ch 177, § 2; SL 2010, ch 129, § 2; SL 2023, ch 82, § 25.
23A-27-18.1. Imprisonment as condition of probation or suspension of sentence--Credit for time.
The conditions of probation imposed pursuant to § 23A-27-12 or 23A-27-13 or the conditions of suspension of execution imposed pursuant to § 23A-27-18, may include the requirement that the defendant be imprisoned in the county jail for no more than one hundred eighty days, except as otherwise specified in this section, or in a state correctional facility for no more than one hundred eighty days or the sentence which was imposed or which may be imposed by law, whichever is less. However, for persons sentenced pursuant to § 32-23-4.6, the conditions of probation imposed pursuant to § 23A-27-12 or 23A-27-13 or the conditions of suspension of execution imposed pursuant to § 23A-27-18, may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding three hundred sixty-five days. The imprisonment may be further restricted to certain days specified by the court as part of such conditions. The required period of imprisonment for a county jail or state incarceration term should not exceed sixty consecutive days to ensure the court retains authority to impose additional days of imprisonment, if necessary, during the term of supervision pursuant to § 16-22-13. The court retains jurisdiction to raise or lower the required period of imprisonment within the sentence otherwise allowed by law. Any such imprisonment, either in the county jail or state correctional facility, shall be credited toward any incarceration imposed upon any subsequent revocation of a suspended imposition or execution of sentence. During any such imprisonment the defendant shall be subject to all policies, rules, and regulations of the county jail or state correctional facility.
Source: SL 1979, ch 159, § 18; SL 1983, ch 185; SL 1984, ch 180, § 2; SL 1999, ch 122, § 1; SL 2013, ch 101, § 66; SL 2023, ch 82, § 26.
23A-27-18.2. Supervision of person sentenced to county jail or state correctional facility as condition of suspension.
A person who is sentenced to a county jail as a condition of suspended imposition of sentence, suspended sentence, or suspended execution of sentence, is under the supervision of the court services officer assigned by the court having jurisdiction of the person. A person sentenced to a state correctional facility as a condition of suspended imposition of sentence or suspended execution of sentence is under the supervision of the court services officer assigned by the court having jurisdiction of the person upon that person's release from the state correctional facility after completion of the state incarceration term imposed pursuant to § 23A-27-18.1.
Source: SL 1979, ch 159, § 20; SL 1982, ch 28, § 20; SL 2010, ch 129, § 4; SL 2023, ch 82, § 27.
23A-27-18.3. Conditions required on probation or suspension of sentence.
The conditions of probation imposed pursuant to § 23A-27-12 or 23A-27-13 or the conditions of a suspension of execution imposed pursuant to § 23A-27-18 shall provide in addition to any other conditions, as an explicit condition of probation, suspended imposition of sentence, or suspended execution of sentence that the defendant not commit another federal, state, or local crime during the term of probation or suspension.
The conditions of probation imposed pursuant to § 23A-27-12 or 23A-27-13 or the conditions of a suspension of execution imposed pursuant to § 23A-27-18 may provide in addition to any other conditions, as an explicit condition of probation, suspended imposition of sentence, or suspended execution of sentence that the defendant:
(1) Pay a fine or perform community service work as directed by the court; or
(2) Receive treatment for chemical dependency at any South Dakota treatment facility accredited pursuant to § 34-20A-27 and reimburse the county for costs of treatment ordered by the court; or
(3) Make restitution pursuant to the provisions of chapter 23A-28.
Source: SL 1985, ch 192, § 4; SL 1987, ch 178.
23A-27-18.4. Suspension of correctional facility sentence--Conditions--Supervision.
Upon conviction, the sentencing court may suspend any portion of a state incarceration sentence subject to conditions or restrictions as the court may impose. The suspension order or judgment can be made only in the court in which the conviction occurred. A defendant with a partially suspended state incarceration sentence is under the supervision of the Department of Corrections and the Board of Pardons and Paroles. The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge, and the board retains jurisdiction to revoke the suspended portion of the sentence for violation of the terms of parole or the terms of the suspension.
A defendant with an entirely suspended state incarceration sentence is under the supervision of the sentencing court unless the entirely suspended state incarceration sentence is concurrent or consecutive to an additional state incarceration sentence in which case, the defendant is under the supervision of the Board of Pardons and Paroles.
Source: SL 2010, ch 129, § 3; SL 2023, ch 82, § 28.
23A-27-18.5. Continuing jurisdiction to revoke probation or suspended execution of sentence.
Any court granting probation or a suspended execution of sentence retains jurisdiction to revoke the probation or suspended execution of sentence for violation of its terms and conditions.
Source: SL 2010, ch 129, § 1.
23A-27-18.6. Maintenance of good disciplinary record and compliance with program requirements.
In addition to any conditions imposed by the sentencing judge, an inmate under the supervision of the Department of Corrections and the Board of Pardons and Paroles pursuant to § 23A-27-18.4 or 23A-27-19 shall maintain a good disciplinary record and comply with all programming required by the Department of Corrections and the Board of Pardons and Paroles. A suspended sentence may be revoked by the Board of Pardons and Paroles for failure to comply with these requirements.
Source: SL 2016, ch 137, § 2.
23A-27-18.7. Inmate under suspended sentence considered parolee.
If an inmate is under the supervision of the Department of Corrections and the Board of Pardons and Paroles as directed in §§ 23A-27-18.4 and 23A-27-19, the inmate is considered a parolee and is governed by the supervision and revocation provisions of chapters 24-15 and 24-15A.
Source: SL 2016, ch 137, § 3.
23A-27-19. Continuing jurisdiction to suspend sentence--Notice to prosecuting attorney and victim--Supervision--Revocation.
The sentencing court retains jurisdiction for the purpose of suspending any sentence for a period of two years from the effective date of the judgment of conviction, notwithstanding the fact that the time for an appeal from such judgment is limited to a shorter period of time. The court shall notify the attorney who prosecuted the person or the successor in office of the prosecuting attorney at least fourteen days in advance of the suspension. Notice shall be provided to any victim by the prosecuting attorney or the successor in office pursuant to the provisions of § 23A-27-1.2. Any person whose sentence is suspended pursuant to this section is under the supervision of the Board of Pardons and Paroles, except as provided in § 23A-27-18.2. The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge, and the board retains jurisdiction to revoke the suspended portion of the sentence for violation of the terms of parole or the terms of the suspension.
Source: SL 1945, ch 149; SDC Supp 1960, § 34.3708-1; SDCL § 23-57-8; SL 1978, ch 178, § 349; SL 1979, ch 159, § 19; SL 1985, ch 197; SL 1986, ch 195; SL 1988, ch 192; SL 1988, ch 193; SL 2005, ch 127, § 1; SL 2010, ch 129, § 5; SL 2016, ch 137, § 1.
23A-27-19.1. Suspension of probationary period--Conditions.
The running of a probationer's probationary period shall be suspended under the following conditions:
(1) If the probationer absconds from supervision;
(2) If the probationer is in violation of any of the terms and conditions of probation unless a sanction has been imposed for the violation pursuant to the graduated response grid established pursuant to § 16-22-13 and the probationer has fully complied with the sanction;
(3) Upon the filing of any probation violation report and during the pendency of any revocation or modification proceedings; or
(4) Upon arrest of a probationer pursuant to § 23A-27-21 if such arrest is followed by a revocation or modification hearing.
Source: SL 1979, ch 159, § 20A; SL 2014, ch 115, § 1.
23A-27-20. (Rule 32(f)) Hearing required to revoke probation or suspension of sentence--Bail pending hearing.
A court shall not revoke a probation or a suspension of imposition of sentence, except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. A defendant may be admitted to bail pending such hearing.
Source: SL 1978, ch 178, § 350.
23A-27-20.1. Modification of terms and conditions of probation.
The court, upon notice to the probationer, a hearing and good cause, shown, may modify the terms and conditions of a probation which may include extending the probationary period.
Source: SL 1979, ch 159, § 20B.
23A-27-21. Warrantless arrest and taking into custody of person on probation or with suspended sentence--Conditions.
A court services officer may arrest and take into custody a person on probation or suspended sentence without a warrant if that court services officer has probable cause to believe that:
(1) The person has violated the terms and conditions of suspension or probation;
(2) The person has failed to comply with the court services officer's documented directives;
(3) The purpose or objects of suspension or probation are not being served; or
(4) The arrest or taking into custody appears necessary in order to prevent escape or enforce discipline.
Source: SDC 1939, § 13.5304 as added by SL 1955, ch 31, § 2; SL 1957, ch 36, § 1; SL 1964, ch 33, § 6; SDCL, § 23-57-12; SL 1977, ch 198, § 12; SL 1978, ch 178, § 351; SL 1982, ch 28, § 20; SL 2005, ch 128, § 1.
23A-27-21.1. Court services officer--Order authorizing law enforcement officer to aid in arrest or taking into custody.
A court services officer may issue a verbal or written order authorizing a law enforcement officer to aid a court services officer in making an arrest or taking a person into custody pursuant to § 23A-27-21.
Source: SL 2005, ch 128, § 2.
23A-27-21.2. Detainer authorizing detention of probationer to obtain warrant, revocation, bond hearing, or court order.
If a court services officer has probable cause to believe a person on probation has violated the terms and conditions of probation, the court services officer may issue a detainer authorizing anyone having the person in custody to detain the person for up to forty-eight hours, excluding Saturdays, Sundays, and holidays, for the purpose of obtaining a warrant, revocation, bond hearing, or court order. The person shall be released after forty-eight hours, excluding Saturdays, Sundays, and holidays, unless a warrant or court order for further detention has been issued.
Source: SL 2005, ch 128, § 3.
23A-27-24. Execution against property of organization for collection of fine--Duty of officers to pay.
When a fine is imposed upon an organization, it may be collected by virtue of the sentence imposing it, by the sheriff of the county, out of the real and personal property of the organization, in the same manner as upon execution in a civil action. It is the duty of the individuals authorized to make disbursements of the assets of the organization to pay the fine.
Source: SDC 1939 & Supp 1960, § 34.3805; SDCL, § 23-48-25; SL 1978, ch 178, § 366.
23A-27-25. Fines and penalties paid into county treasury--Exceptions--Use for schools.
Except as provided below, all fines and pecuniary penalties collected for the violation of any state law must be paid into the treasury of the proper county, the net proceeds of which must be applied and used each year for the benefit of the public schools of this state. This section does not apply to forfeitures provided for in § 23A-43-23, costs as provided in §§ 23-3-52, 23A-27-25.9, 23A-27-26, and 23A-27-27, and restitution and civil penalties assessed under the state's environmental laws.
Source: SDC 1939, § 13.0113; SDCL, § 23-48-30; SL 1975, ch 162, § 14; SL 1978, ch 178, § 367; SL 1982, ch 186, § 3; SL 1988, ch 291, § 25; SL 1989, ch 211, § 3; SL 2024, ch 92, § 2.
23A-27-25.1. Provisions for payment of fines, costs and restitution, etc.--Community service.
If a defendant sentenced to be imprisoned or jailed has part or all of his imprisonment or jail time suspended upon conditions that include payment of a fine, costs, and restitution, or any of them, or if a defendant is sentenced to pay a fine, costs, and restitution, or any of them, the lay magistrate, the magistrate judge or circuit court judge may require:
(1) Execution by the defendant of a wage assignment if he is employed in this state, which assignment shall direct his employer to withhold and remit that amount to the clerk of courts up to the total of the fine, costs, and restitution;
(2) A payment schedule. The magistrate judge or circuit court may require the defendant to personally appear before the court or an officer of the court as designated, from time to time, to pay such installments or justify the failure to timely do so. Failure to so appear is a prima facie violation of the suspended sentence of imprisonment, jail, or contempt;
(3) Community service under terms and conditions established by the court. For purposes of computing community service time, eight hours shall be equal to one day of imprisonment. The community service time may not exceed the maximum time authorized for the offense charged.
The provisions of this section shall not apply to suspensions of drivers' licenses pursuant to § 32-12-49.
Subdivisions (1) to (3), inclusive, are not exclusive as to conditions which may be imposed. A defendant is any person who has been convicted of a criminal offense or who has been granted a suspended imposition of sentence.
Source: SL 1989, ch 211, § 4.
23A-27-25.2. Costs and restitution designated as punishment.
In any case in which they are imposed, costs and restitution are a portion of the punishment.
Source: SL 1989, ch 211, § 5.
23A-27-25.3. Failure to comply with conditions of suspended sentence--Defendant to show cause.
If a defendant sentenced to be imprisoned or jailed has part or all of the imprisonment or jail time suspended upon conditions that include that he pay a fine, costs, or restitution and fails to comply with any of these conditions, the court may, upon its own motion or upon motion of the state's attorney, require the defendant to show cause why he should not be imprisoned or jailed for failure to comply with the conditions of the sentence. The court may issue a warrant of arrest, bench warrant, or order to show cause for the convicted defendant's appearance.
Source: SL 1989, ch 211, § 6.
23A-27-25.4. Default in payment of fine or costs and restitution.
If a defendant sentenced to pay a fine, costs, or restitution, defaults in the timely payment thereof, the court may, upon its own motion or upon motion of the state's attorney, require the defendant to show cause why he should not be imprisoned or jailed for nonpayment. The court may issue a warrant of arrest, bench warrant, or order to show cause for the defendant's appearance.
Source: SL 1989, ch 211, § 7.
23A-27-25.5. Hearing required prior to imprisonment or jailing for failure to pay fine, costs, and restitution--Burden of proof--Computation of time to be served.
No defendant may be imprisoned or jailed for failure to pay a fine, costs, or restitution or have any suspended prison or jail sentence revoked without a prior hearing. At the hearing, the defendant has the burden of proof to establish to the reasonable satisfaction of the magistrate or circuit judge that the defendant did not willfully fail to pay the fine, costs, or restitution or that the defendant did make a bona fide effort to pay the fine, costs, or restitution.
Failure by the defendant to make such a showing is grounds for being imprisoned or jailed. If the sentence provided for payment of fine or costs only, the term of jail or imprisonment may be no longer than the number of days equal to the total amount of the fine or costs imposed divided by sixty. For purposes of making this computation, any fraction of less than one day shall be dropped from the term of imprisonment. In no event may such imprisonment for failure to pay the fine, costs, and restitution together with all other time served or to be served exceed the maximum allowed by statute.
If the defendant establishes that nonpayment was not willful or that the defendant did make a bona fide effort to pay, the defendant may not be imprisoned or jailed for nonpayment. The magistrate or circuit judge shall consider other alternatives which take into account the state's interest in punishment and deterrence.
The court shall make findings in its decision.
Source: SL 1989, ch 211, § 8; SL 2004, ch 163, § 1; SL 2010, ch 130, § 1.
23A-27-25.6. Fine, costs, or restitution as a lien in civil action--No discharge from imprisonment until full amount paid.
If the sentence includes a fine, costs, or restitution, execution may issue thereon as a judgment against the convicted defendant in a civil action. Such a judgment is a lien and may be docketed and collected in the same manner. If the defendant is in default on payment, the levy or execution for the collection of the fine, costs, or restitution, do not discharge a defendant committed to imprisonment for contempt pursuant to this chapter until the amount due has actually been collected.
Source: SL 1989, ch 211, § 9.
23A-27-25.7. Objection to fines or costs--Defendant sentenced to state correctional facility--Hearing.
If the sentencing court orders a defendant to a state correctional facility and the defendant objects at sentencing to the fines or costs imposed as a portion of the punishment on the basis the defendant will be ineligible to receive a wage for work performed while incarcerated because the defendant does not have a verifiable Social Security number, the defendant is entitled to a hearing at which the court shall determine whether there is good cause to reduce the fines or costs pursuant to § 23A-27-25.8 by a preponderance of the evidence. In making this determination, the court shall consider the defendant's employment circumstances, potential for employment and vocational training, financial condition, and other factors as may be appropriate.
Source: SL 2022, ch 73, § 1; SL 2023, ch 82, § 29.
23A-27-25.8. Reduction of fines or costs for work performed--Department of Corrections to track--Defendant responsible for remainder.
If the sentencing court finds good cause to reduce the fees or costs imposed under § 23A-27-25.7, the court shall issue an order stating that the defendant shall be credited the current rate of pay for institutional work assignments against the fines or costs imposed in the priority ordered by the court. The reduction must be in accordance with work performed by the defendant related to reasonable institutional work assignments. Any work required as a disciplinary sanction for misconduct may not count as a credit against fines or costs imposed. The Department of Corrections shall record the number of hours the defendant worked pursuant to this section. The defendant shall be responsible for any outstanding amount following release from incarceration.
Source: SL 2022, ch 73, § 2.
23A-27-25.9. Cost of digital forensic examination--Convicted defendant to reimburse--Cost capped--Deposit--"Personal electronic device" defined.
A person convicted of a felony or misdemeanor shall, as part of the sentence imposed by the court, pay for the reimbursement of the cost of any digital forensic examination performed on any personal electronic device in the investigation and prosecution of the crime for which the defendant is convicted. The fee assessed may not exceed ninety-five dollars for each device. Fees collected pursuant to this section by the Unified Judicial System must be deposited in the internet crimes investigation fund, created in § 1-11-36.
For the purposes of this section, the term "personal electronic device" means any portable electronic device that is designed for and capable of wireless communication or electronic data retrieval, including a cellular telephone, tablet, laptop, computer, or two-way messaging device.
Source: SL 2024, ch 92, § 1.
23A-27-26. Judgment against defendant for costs--Items excluded--Enforcement as civil judgment.
In all criminal actions, upon conviction of the defendant, the court may adjudge that the defendant pay the whole or any part of the costs of that particular prosecution in addition to the liquidated costs provided by § 23-3-52. However, the costs shall not include items of governmental expense such as juror's fees, bailiff's fees, salaries and expenses of special agents, and reporter's per diem. Payment of costs may be enforced as a civil judgment against the defendant.
Source: SDC 1939, § 34.3709; SL 1943, ch 129; SDCL, § 23-48-31; SL 1978, ch 178, § 368; SL 1982, ch 186, § 3.
23A-27-27. Fees and costs included in judgment for costs against defendant.
The statutory fees of the sheriff incurred in connection with the prosecution and witnesses' fees and mileage paid or ordered paid by the county including fees of witnesses, cost of transcripts, court appointed counsel fees, filing fees, breathalyzer test fees, blood test fees, and other chemical test fees may be included in the judgment for costs.
Source: SDC 1939, § 34.3709 as added by SL 1943, ch 129; SDCL, § 23-48-32; SL 1978, ch 178, § 369.
23A-27-28. Entry and docketing of judgment for costs against defendant.
The clerk of courts shall enter judgment for the amount of costs taxed by the court and docket the same as a part of the judgment and such entry and docketing shall be of the same force and effect as if done by the court.
Source: SDC 1939, § 34.3709 as added by SL 1943, ch 129; SDCL, § 23-48-33; SL 1978, ch 178, § 370.
23A-27-29. Copy of judgment for costs furnished to officer for execution.
When a judgment has been rendered, a certified copy thereof must forthwith, unless otherwise ordered by the court, be furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.
Source: SDC 1939, § 34.3712; SL 1939, ch 133; SDCL, § 23-48-40; SL 1978, ch 178, § 371.
23A-27-30. Delivery of defendant and judgment to state correctional facility.
If the judgment is for imprisonment in a state correctional facility, the sheriff of the county shall, upon receipt of a certified copy of the judgment, take and deliver the defendant to the warden of the state correctional facility. He shall also deliver to the warden or other proper officer a certified copy of the judgment containing the information required pursuant to § 23A-27-4.
Source: SDC 1939 & Supp 1960, § 34.3715; SDCL § 23-48-36; SL 1978, ch 178, § 372; SL 1999, ch 35, § 2; SL 2007, ch 150, § 2; SL 2023, ch 82, § 30.
23A-27-31. Sheriff requiring assistance while conveying defendant to prison.
The sheriff or his deputy, while conveying the defendant to his proper prison in execution of a judgment of imprisonment, has the same authority to request the assistance of any citizen in securing the defendant and in retaking him if he escapes, as if the sheriff were in his own county; and every person who refuses or neglects to assist the sheriff, when so requested, is punishable as if the sheriff were in his own county.
Source: SDC 1939 & Supp 1960, § 34.3716; SDCL, § 23-48-41; SL 1978, ch 178, § 373.
23A-27-32. Restitution plan and statement of crime provided--Presentence investigation report in lieu of statement.
Whenever any person is convicted of a felony, the judge before whom such person is convicted shall furnish the Board of Pardons and Parole with a plan of restitution pursuant to chapter 23A-28. The state's attorney of the county in which the person is convicted shall furnish the warden of the state correctional facility with an official statement of the facts and circumstances constituting the crime whereof the convict has been convicted, with all the information accessible to them in regard to the career of the convict prior to the commission of the crime of which he is convicted, relating to the habits, associates, disposition, and reputation of such convict and any other facts or circumstances which may tend to throw any light upon the question as to whether he is capable of again becoming a law-abiding citizen. If a presentence investigation report has been prepared by a court services officer and contains all information otherwise provided by an official statement, the court services officer shall furnish the report in lieu of an official statement.
Source: SDC 1939 & Supp 1960, § 34.3711; SDCL, § 23-48-37; SL 1978, ch 178, § 374; SL 1981, ch 188; SL 1986, ch 196, § 7; SL 2023, ch 82, § 31.
23A-27-33. Duties of court reporter and clerk on execution of sentence to state correctional facility.
It shall be the duty of the court reporter, when directed by the judge, to write the official statements of the judge and state's attorney referred to in § 23A-27-32.
It shall be the duty of the clerk of the court to cause such official statements to be attached to the certified copy of the judgment of conviction to be delivered by the sheriff to the warden of the state correctional facility at the time of the delivery of the convict.
Source: SDC 1939 & Supp 1960, § 34.3711; SDCL, § 23-48-38; SL 1978, ch 178, § 375; SL 2023, ch 82, § 32.
23A-27-34. Filing by warden of official statements--Inspection by secretary and Governor.
The warden, upon receipt of an inmate, shall safely keep and record the official statements referred to in § 23A-27-32 and have the same at all times ready for the inspection of the secretary of corrections and the Governor.
Source: SDC 1939 & Supp 1960, § 34.3711; SDCL, § 23-48-39; SL 1978, ch 178, § 376; SL 1989, ch 20, § 67.
23A-27-35. Suspension of civil rights on sentence to state correctional facility--Prisoner as witness--Restoration of rights--Voting rights.
A sentence of imprisonment in a state correctional facility for any term suspends the right of the person so sentenced to hold public office, to become a candidate for public office, and to serve on a jury. Any such person so sentenced forfeits all public offices and all private trusts, authority, or power during the term of such imprisonment. Any person who is serving a term in any state correctional facility shall be a competent witness in any action now pending or hereafter commenced in the courts of this state, and the person's deposition may be taken in the same manner prescribed by statute or rule relating to taking of depositions. After a suspension of sentence pursuant to § 23A-27-18, upon the termination of the time of the original sentence or the time extended by order of the court, a defendant's rights withheld by this section are restored. However, the voting rights of any person sentenced to imprisonment in a state correctional facility shall be governed by Title 12.
Source: SDC 1939, § 34.3708 as added by SL 1939, ch 132; SL 1943, ch 128; SDCL §§ 23-48-35, 23-57-7; SL 1978, ch 178, § 352; SL 2012, ch 82, § 2; SL 2023, ch 82, § 33.
23A-27-36.1. Sentence to commence after expiration of last sentence of imprisonment.
If a person is convicted of a crime committed while confined in a county or municipal jail, upon conviction, the sentence does not commence to run until the expiration of the last sentence of imprisonment, unless the sentencing court specifically orders otherwise.
Source: SL 2004, ch 164, § 6.
23A-27-38. Guilty but mentally ill finding or plea--Sentence--Treatment.
If a defendant is found "guilty but mentally ill" or enters that plea and the plea is accepted by the court, the court shall impose any sentence which could be imposed upon a defendant pleading or found guilty of the same charge. If the defendant is sentenced to a state correctional facility, he shall undergo further examination and may be given the treatment that is psychiatrically indicated for his mental illness. If treatment is available, it may be provided through facilities under the jurisdiction of the Department of Social Services. The secretary of corrections may transfer the defendant from the state correctional facility to other facilities under the jurisdiction of the Department of Social Services, with the consent of the secretary of social services, and return the defendant to the state correctional facility after completion of treatment for the balance of the defendant's sentence.
Source: SL 1983, ch 174, § 18; SL 1989, ch 21, § 47; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011; SL 2023, ch 82, § 34.
23A-27-39. Discharge of guilty but mentally ill defendant by treating facility--Report.
If a treating facility discharges a defendant pursuant to § 23A-27-38 prior to the expiration of his sentence, the facility shall forward to the Board of Pardons and Paroles a report on the condition of the defendant. The report shall contain the clinical facts, the diagnosis, the course of treatment, and the prognosis for remission of symptoms.
Source: SL 1983, ch 174, § 19.
23A-27-40. Probation for defendant guilty but mentally ill--Treatment as condition.
If a defendant is found "guilty but mentally ill" and is placed on probation, the sentencing court, upon recommendation of a licensed psychiatrist or a licensed psychologist, shall make treatment a condition of probation. Any report required by the sentencing court shall be filed with the court service department and the sentencing court. The defendant's failure to continue treatment, except by agreement with the treating agency and the sentencing court, is basis for commencing a probation revocation hearing and grounds for probation revocation.
Source: SL 1983, ch 174, § 21; SL 2019, ch 115, § 1.
23A-27-41. Facilities providing treatment for mentally ill probationer--Payment of expense.
The treatment required by § 23A-27-40 shall be provided by local mental health agencies, if available, or by a facility under the jurisdiction of the Department of Social Services. The defendant is responsible for payment for his treatment unless he is indigent. If the defendant is indigent and no other source of payment is available, payment for his treatment shall be paid by the county of his residence. With the court's approval, treatment at the defendant's expense may be provided by private agencies, private physicians, or other mental health personnel.
Source: SL 1983, ch 174, § 22; SL 1989, ch 21, § 48; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011.
23A-27-42. Presentence hearing on mental condition.
A defendant found guilty of an offense, or the prosecuting attorney may, within ten days after the defendant is found guilty, and prior to the time the defendant is sentenced, file a motion for a hearing on the present mental condition of the defendant if the motion is supported by substantial information indicating that the defendant may presently be suffering from a mental disease or defect for which he is in need of custody for care and treatment in a suitable facility. The court shall grant the motion, or at any time prior to the sentencing of the defendant shall order such a hearing on its own motion, if it is of the opinion that there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect for which he is in need of custody for care or treatment in a suitable facility.
Source: SL 1985, ch 192, § 19.
23A-27-43. Mental examination and report before hearing.
Prior to the date of hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court pursuant to §§ 23A-46-1 and 23A-46-2. If the report includes an opinion by the examiner that the defendant is presently suffering from a mental disease or defect but that it is not such as to require his custody for care or treatment in a suitable facility, then the report shall also include an opinion by the examiner concerning the sentencing alternatives that best accord the defendant the kind of treatment he does need.
Source: SL 1985, ch 192, § 20; SL 1986, ch 27, § 7.
23A-27-44. Conduct of hearing.
The hearing shall be conducted pursuant to the provisions of § 23A-46-3.
Source: SL 1985, ch 192, § 21.
23A-27-45. Commitment--Finding--Provisional sentence.
If, after hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect and that he should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care or treatment, the court shall commit the defendant to the custody of the Human Services Center. The Human Services Center shall hospitalize the defendant for care or treatment. Such a commitment constitutes a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty.
Source: SL 1985, ch 192, § 22.
23A-27-46. Recovery of defendant--Notice--Final sentencing.
When the administrator of the human services center determines that the defendant has recovered from his mental disease or defect to such an extent that he is no longer in need of custody for care or treatment in such a facility, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to defendant's counsel and to the prosecuting attorney. If, at the time of the filing of the certificate, the provisional sentence imposed pursuant to § 23A-27-45 has not expired, the court shall proceed finally to sentencing and may modify the provisional sentence.
Source: SL 1985, ch 192, § 23.
23A-27-47. Confidentiality of records--Court order.
Records prepared or maintained by court services officers are confidential. However, such records may be inspected by, or disclosed to, justices, judges, magistrates, and employees of the Unified Judicial System in the course of their duties and to persons specifically authorized by order of the court. The court may order that the records be provided to a person on its own motion. Records received by a person pursuant to court order must be held confidential by the receiving party unless otherwise authorized by the court.
Source: SL 1994, ch 217, § 2; SL 2022, ch 74, § 1.
23A-27-47.1. Motion to access court services records or testimony on court services records--Notice.
If, in connection with a judicial proceeding, a person not authorized by court order pursuant to § 23A-27-47 seeks confidential records prepared or maintained by a court services officer or testimony from a court services officer on the records, the person must file a motion with the court. The motion must state the issue to which the records or testimony is relevant, how the records or testimony is admissible, and the reason why the records or testimony cannot be obtained elsewhere. The motion must be served on the parties and the court services officer who prepared or maintained the records or whose testimony is being sought. The court shall set a hearing on the motion. The moving party shall comply with § 23A-41-4.
Source: SL 2022, ch 74, § 2.
23A-27-49. Posthumous sentencing of certain defendants.
Upon the death of a defendant who has not been sentenced but who has entered a plea of guilty or nolo contendere or has been found guilty at trial, the court shall enter a judgment of conviction pursuant to § 23A-27-4. Any sentence imposed shall be limited to restitution, court costs, and costs of prosecution.
Source: SL 2008, ch 116, § 1.
23A-27-50. Substitution of personal representative for appeal purposes.
If a defendant dies following the entry of a plea of guilty or nolo contendere or a finding of guilt at trial and the time for taking an appeal has not expired, the court may order substitution of the proper parties for the purpose of an appeal. The personal representative of the defendant's estate may make a motion for substitution, together with a notice of hearing, and shall serve the same on the prosecuting attorney.
Source: SL 2008, ch 116, § 2.
23A-27-51. Procedure for delayed appeal where applicant unconstitutionally denied right of appeal.
If the court finds that an applicant was denied the right to an appeal from an original conviction in violation of the Constitution of the United States or the Constitution of South Dakota, the court shall issue a new judgment and impose the same sentence if such relief is requested within a reasonable time and an adequate record of the original trial proceeding is available for review. The court shall advise the applicant of the following:
(1) The rights associated with an appeal from a criminal conviction; and
(2) The time for filing a notice of appeal from the reimposed judgment and sentence.
Nothing in this section limits an applicant's right to habeas corpus.
Source: SL 2010, ch 131, § 1.
23A-27-52. Defendant serving in military or veteran.
If a defendant appears in court and pleads guilty or no contest to a crime punishable as a felony or Class 1 misdemeanor, the court shall inquire whether the defendant is currently serving in or is a veteran of, the United States Armed Forces. If the defendant is currently serving in the military or is a military veteran, the court may:
(1) Order that a court services officer consult with the United States Department of Veterans Affairs or another agency or person with suitable knowledge or experience, for the purpose of providing the court with information regarding treatment options available to the defendant, including federal, state, and local programming; and
(2) Consider the treatment recommendations of any diagnosing or treating mental health or substance abuse professionals together with the treatment options available to the defendant in imposing sentence.
Source: SL 2013, ch 101, § 8.
23A-27-53. Probation for violation of § 22-42-5 or 22-42-5.1--Treatment--Revocation.
After receiving a plea of guilty for a violation of § 22-42-5 or 22-42-5.1, a court that has jurisdiction of the defendant may, without entering a judgment of guilt, and with the consent of the defendant, defer the imposition of sentence and place the defendant on probation for a period, terms, and conditions as the court deems best. The conditions shall include that the defendant complete a drug and alcohol evaluation and complete any recommended course of treatment. If after one year, the defendant has successfully completed the course of treatment and complied with all conditions of probation, the court shall dismiss the charge under § 22-42-5 or 22-42-5.1 upon the defendant pleading guilty to ingestion under § 22-42-15 or possession under § 22-42-15.1. If the defendant violates any conditions of probation, the court shall revoke the deferred imposition of sentence and impose and execute the sentence. No person who has previously been granted a deferred imposition of sentence is eligible to be granted a second deferred imposition of sentence. A defendant is ineligible for the deferred imposition of sentence under this section if aggravating circumstances exist as defined by § 22-6-11. A defendant serving a sentence under the supervision of the executive branch is not eligible for a deferred imposition of sentence.
Source: SL 2017, ch 92, § 2; SL 2019, ch 116, § 1.
