CHAPTER 23A-32
APPEALS TO SUPREME COURT
23A-32-1 Transcript prepared when necessary to protect defendant's rights.
23A-32-2 Defendant's right to appeal.
23A-32-3 Reproduction of brief for indigent defendant--Form and contents.
23A-32-4 Appeal by prosecution from judgment setting aside verdict, dismissal, arrest of judgment, new trial, or deviation from mandatory sentence.
23A-32-5 Appeal by prosecution--Suppression order--Dismissal of complaint--Procedure--Double jeopardy.
23A-32-6 Time for appeal by prosecution.
23A-32-7 Release on bail pending appeal by prosecution.
23A-32-9 Scope of review by Supreme Court.
23A-32-10 New trial motion not required to preserve grounds for appeal.
23A-32-11 Scope of review when denial of new trial assigned as error.
23A-32-12 Discretionary appeal from intermediate order before trial--Procedure.
23A-32-13 Constitutional issue first raised on appeal.
23A-32-14 Provisions as to civil appeals applicable unless otherwise provided.
23A-32-15 Time of taking appeal.
23A-32-16 Notice of appeal--Service on adverse parties--Perfection of appeal--Fee not required of indigent defendant.
23A-32-17 Service of notice of appeal and papers on attorney general--Control of case by attorney general.
23A-32-18 Remand to trial court for new trial motion.
23A-32-19 Disposition of case directed by Supreme Court.
23A-32-20 Time for appeal by personal representative of deceased defendant's estate.
23A-32-21 Continuation by personal representative of pending appeal--Substitution--Time limits.
23A-32-22 Discretionary appeals of illegal sentences.
23A-32-1. Transcript prepared when necessary to protect defendant's rights.
In any criminal action or proceeding in which the court deems it essential to the protection of the substantial rights of the defendant, it shall order such transcript and copies of the shorthand reporter's notes of the evidence and proceedings upon the trial as may be necessary properly to present a motion in arrest of judgment, an application for a new trial or to perfect an appeal to the Supreme Court to be furnished to defendant's counsel at the county's expense.
Source: SDC 1939 & Supp 1960, § 34.3903; SDCL, § 23-46-3; SL 1978, ch 178, § 401.
23A-32-2. Defendant's right to appeal.
An appeal to the Supreme Court may be taken by the defendant from final judgment of conviction.
Source: SDC 1939 & Supp 1960, § 34.4101; SDCL, § 23-51-1; SL 1978, ch 178, § 398.
23A-32-3. Reproduction of brief for indigent defendant--Form and contents.
In any case provided for in § 23A-40-6, brought before the Supreme Court upon appeal, the brief shall be reproduced as specified in subdivision 15-26A-68(2). In such case, the defendant must file with the clerk of the Supreme Court, the original and fourteen copies of the brief, which brief in all other respects, except that the original may be typewritten, shall conform to the provisions of chapter 15-26A as to the form and contents of the briefs.
Source: Supreme Court Rule 415, 1939; SDC 1939 & Supp 1960, §§ 34.1902, 34.4110; SDCL, §§ 23-51-8, 23-51-9; Supreme Court Rule No. 1, 1972; SL 1978, ch 178, §§ 399, 400; SL 1988, ch 434 (Supreme Court Rule 87-15); SL 1989, ch 30, § 54.
23A-32-4. Appeal by prosecution from judgment setting aside verdict, dismissal, arrest of judgment, new trial, or deviation from mandatory sentence.
An appeal by a prosecuting attorney in a criminal case may be taken to the Supreme Court, as a matter of right, from a judgment or order of a circuit court that:
(1) Sets aside a verdict and entering judgment of acquittal;
(2) Sustains a motion to dismiss an indictment or information, as to any one or more counts, or any part thereof, on statutory grounds or otherwise;
(3) Grants a motion for arrest of judgment or a motion for a new trial; or
(4) Finds mitigating circumstances to exist in deviating from the mandatory sentencing provisions of § 22-42-2. However, any appeal does not bar or preclude another prosecution of the defendant for the same offense, unless the dismissal is affirmed by the Supreme Court.
Source: SDC 1939 & Supp 1960, § 34.4101; SDCL § 23-51-2; SL 1978, ch 178, § 402; SL 1979, ch 159, § 23; SL 1989, ch 201, § 3; SL 2013, ch 112, § 1; SL 2021, ch 111, § 1.
23A-32-5. Appeal by prosecution--Suppression order--Dismissal of complaint--Procedure--Double jeopardy.
An appeal by a prosecuting attorney may be taken to the Supreme Court from:
(1) An order of a circuit court or a magistrate suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding;
(2) An order of a circuit court or a magistrate sustaining a motion to dismiss a complaint on statutory grounds or otherwise.
An appeal under this section may not be taken after a defendant has been put in risk of double jeopardy and is not a matter of right but of sound judicial discretion. Appeals from such orders shall be taken in the same manner as intermediate appeals in subdivision § 15-26A-3(6). No appeal taken under this section shall delay any trial unless a stay be granted in the discretion of the Supreme Court.
Source: SL 1978, ch 178, § 403; SL 1979, ch 159, § 24; SL 2021, ch 111, § 2.
23A-32-6. Time for appeal by prosecution.
An appeal under § 23A-32-4 or 23A-32-5 must be taken within ten days after written notice of entry of the judgment or order.
Source: SL 1978, ch 178, § 404; SL 1979, ch 159, § 25.
23A-32-7. Release on bail pending appeal by prosecution.
Pending the prosecution and determination of an appeal authorized by § 23A-32-4 or 23A-32-5, a defendant may be released in accordance with chapter 23A-43.
Source: SL 1978, ch 178, § 405.
23A-32-9. Scope of review by Supreme Court.
On an appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court, involving the merits and necessarily affecting the judgment and appearing upon the record including an order denying a new trial, and whether any such order, ruling, or determination is made before or after judgment. When the appeal is from an order subject to appeal, the Supreme Court may review all matters appearing on the record relevant to the question of whether the order appealed from is erroneous.
Source: SDC 1939 & Supp 1960, § 34.4109; SDCL, §§ 23-51-16, 23-51-19; SL 1978, ch 178, § 387.
23A-32-10. New trial motion not required to preserve grounds for appeal.
Such of the matters specified in § 23A-29-1 as may have been timely presented to the trial court by motion for judgment of acquittal, or other apt motion, offer, or objection may be reviewed on appeal from the judgment without necessity for an application for a new trial.
Source: SDC 1939 & Supp 1960, §§ 34.4007, 34.4109; SDCL, §§ 23-51-3, 23-51-18; SL 1978, ch 178, § 388.
23A-32-11. Scope of review when denial of new trial assigned as error.
When an order denying a new trial is assigned as error, the Supreme Court may on such assignment, review all matters properly and timely presented to the trial court by the application for new trial.
Source: SDC 1939 & Supp 1960, § 34.4109; SDCL, § 23-51-17; SL 1978, ch 178, § 389.
23A-32-12. Discretionary appeal from intermediate order before trial--Procedure.
As to any intermediate order made before trial, as to which an appeal is not allowed as a matter of right, either the state or the defendant may be permitted to appeal to the Supreme Court, not as a matter of right, but of sound judicial discretion, such appeal to be allowed by the Supreme Court only when the court considers that the ends of justice will be served by the determination of the questions involved without awaiting the final determination of the action. The procedure as to the taking of such appeal, petition for allowance thereof, and allowance thereof, shall be as set forth in §§ 15-26A-13 to 15-26A-17, inclusive, so far as the same are applicable.
Source: SDC 1939 & Supp 1960, § 34.4103; SDCL, § 23-51-5; SL 1978, ch 178, § 390; SL 1980, ch 26, § 22.
23A-32-13. Constitutional issue first raised on appeal.
The issue of the constitutionality of any statute under which the defendant has been convicted may be raised on appeal regardless of whether it was first raised in any lower court.
Source: SL 1971, ch 160; SDCL Supp, § 23-51-7.1; SL 1978, ch 178, § 391.
23A-32-14. Provisions as to civil appeals applicable unless otherwise provided.
Except as otherwise expressly provided in this chapter, all provisions of Title 15 with reference to settlement of the record, certification, and transmission thereof to the clerk of the Supreme Court, laying the foundation for appellate review of alleged errors, preparing, serving, and filing of briefs, and presentation and argument of the appeal, shall apply to appeals under this title except to the extent that such provisions by their context are clearly inapplicable.
Source: SDC 1939 & Supp 1960, § 34.4105; SDCL, § 23-51-7; SL 1978, ch 178, § 392.
23A-32-15. Time of taking appeal.
Except as provided in § 23A-32-4, 23A-32-5, or 23A-32-6, any appeal other than from a judgment must be taken within thirty days after written notice of the filing of the order shall have been given to the party appealing. An appeal from the judgment must be taken within thirty days after the judgment is signed, attested, and filed.
The running of the time for filing a notice of appeal is terminated by a timely motion filed in the circuit court pursuant to § 23A-29-1, and the full time for appeal fixed by this section commences to run and is to be computed from the attestation and filing of an order made pursuant to such motion or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.
Source: SDC 1939, § 34.4104; SL 1943, ch 130; SL 1945, ch 148; SL 1961, ch 187; SDCL, § 23-51-6; SL 1976, ch 149, § 1; SL 1978, ch 178, § 393; SL 1987, ch 412 (Supreme Court Rule 86-38).
23A-32-16. Notice of appeal--Service on adverse parties--Perfection of appeal--Fee not required of indigent defendant.
Appeal to the Supreme Court shall be taken by a written notice of appeal, signed by the appellant or his attorney, specifying the order or judgment, or both, appealed from and whether the appeal is taken from the whole or a part thereof, and if from a part only, specifying the part appealed from. Notice of such appeal, when by the defendant shall be served upon the attorney general and upon the prosecuting attorney of the county where the judgment was entered and, when by the state, upon the defendant or his attorney. The appeal shall be deemed perfected by filing the notice with the clerk together with proof of service thereof, and by depositing the appeal fee for the clerk of the Supreme Court, as in civil cases, except that when the appeal is by the state, no such fee shall be required. Whenever an appeal is taken by an indigent, assigned counsel pursuant to § 23A-40-6, no filing fee need be paid and no undertaking need be furnished to perfect such appeal.
Source: SDC 1939 & Supp 1960, § 34.4102; SDCL, § 23-51-4; SL 1978, ch 178, § 394; SL 1980, ch 26, § 23.
23A-32-17. Service of notice of appeal and papers on attorney general--Control of case by attorney general.
When an appeal is taken, the notice of appeal and all briefs, papers, and notices, either in the Supreme Court or trial court, shall be served on the attorney general as well as the prosecuting attorney, but after the appeal is perfected the attorney general shall otherwise control the case in behalf of the state, and thereafter no stipulation shall be valid unless made in writing with the attorney general and filed with the clerk of the Supreme Court within ten days after the date thereof.
Source: SDC 1939 & Supp 1960, § 34.4111; SDCL, § 23-51-10; SL 1978, ch 178, § 395; SL 1980, ch 26, § 24.
23A-32-18. Remand to trial court for new trial motion.
The Supreme Court, after an appeal has been perfected, may, under the conditions specified and in the same manner as provided by § 15-30-1, remand the record to the trial court for the purpose of entertaining a motion for new trial.
Source: SDC 1939 & Supp 1960, § 34.4112; SDCL, § 23-51-15; SL 1978, ch 178, § 396.
23A-32-19. Disposition of case directed by Supreme Court.
The Supreme Court by its judgment may reverse, affirm, or modify the judgment or order appealed from, and may direct a new trial, or when the appeal is from a judgment and the defendant assigns as error a ruling of the court denying a motion for a judgment of acquittal and the court determines that such motion should have been granted, the court may order that such judgment of acquittal be entered.
Source: SDC 1939 & Supp 1960, § 34.4109; SDCL, § 23-51-20; SL 1978, ch 178, § 397.
23A-32-20. Time for appeal by personal representative of deceased defendant's estate.
The personal representative of a deceased defendant's estate, if substituted as a party pursuant to chapter 23A-27, may commence an appeal on behalf of the defendant subject to the time limits of § 23A-32-15.
Source: SL 2008, ch 116, § 3.
23A-32-21. Continuation by personal representative of pending appeal--Substitution--Time limits.
The personal representative of a deceased defendant, if substituted as a party, may continue a pending appeal on behalf of the deceased defendant to the extent that the claim is not extinguished by the death. 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 and the attorney general within sixty days of the defendant's death. The court may dismiss any appeal of a deceased defendant in which a motion for substitution, together with notice of hearing and proof of service has not been filed with the clerk of the Supreme Court within sixty days of the defendant's death.
Source: SL 2008, ch 116, § 4.
23A-32-22. Discretionary appeals of illegal sentences.
An appeal to the Supreme Court may be taken by the state or the defendant from an order granting or denying a motion to correct an illegal sentence or an order granting or denying a motion to correct a sentence imposed in an illegal manner. An appeal under this section is not a matter of right but of sound judicial discretion. An appeal from an illegal sentence shall be taken in the same manner as an intermediate appeal pursuant to subdivision 15-26A-3(6).
Source: SL 2015, ch 141, § 1.
