CHAPTER 23A-44

MISCELLANEOUS ADMINISTRATIVE PROVISIONS

23A-44-1    (Rule 47) Application for order to be by motion--When writing required--Contents--Supporting affidavit.

23A-44-2    (Rule 48(a)) Dismissal of charges by prosecution--Defendant's consent required during trial.

23A-44-3    Dismissal of charges for unnecessary delay in prosecution.

23A-44-4    Discharge of defendant and release of bail on dismissal of charges.

23A-44-5    Subsequent prosecution not barred by dismissal.

23A-44-5.1    Time allowed for disposition of criminal case--Periods excluded--Dismissal.

23A-44-6    Trial in one county as bar to prosecution in another.

23A-44-7    Service on parties of motions, notices, and similar papers.

23A-44-8    (Rule 49(b)) Service on attorney for party--Service as in civil proceedings.

23A-44-9    23A-44-9. (Rule 49(c)) Reserved

23A-44-10    (Rule 49(d)) Filing with court of papers to be served--Filing as in civil proceedings.

23A-44-11    (Rule 50(a)) Placement on calendars--Preference to criminal proceedings.

23A-44-12    23A-44-12. (Rule 50(b)) Reserved

23A-44-13    (Rule 51) Exceptions not required to preserve objection--Objection not required when no opportunity.

23A-44-14    (Rule 52(a)) Defects not affecting substantial rights disregarded.

23A-44-15    (Rule 52(b)) Plain error noticed though not brought to court's attention.

23A-44-16    23A-44-16. Repealed by SL 2008, ch 118, § 1.

23A-44-17    Content of record.

23A-44-1. (Rule 47) Application for order to be by motion--When writing required--Contents--Supporting affidavit.

An application to a court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by an affidavit.

Source: SL 1978, ch 178, § 534.

23A-44-2. (Rule 48(a)) Dismissal of charges by prosecution--Defendant's consent required during trial.

A prosecuting attorney may file a dismissal of an indictment, information, or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during a trial without the consent of the defendant.

Source: SDC 1939 & Supp 1960, § 34.2204; SDCL, § 23-34-7; SL 1978, ch 178, § 535.

23A-44-3. Dismissal of charges for unnecessary delay in prosecution.

If there is unnecessary delay in presenting a charge to a grand jury or in filing an information against a defendant who has been held to answer to a circuit court, or if there is unnecessary delay in bringing a defendant to trial, a court may dismiss his indictment, information or complaint.

Source: SDC 1939 & Supp 1960, §§ 34.2201, 34.2202; SDCL, §§ 23-34-1, 23-34-2; SL 1978, ch 178, § 536.

23A-44-4. Discharge of defendant and release of bail on dismissal of charges.

If a court directs an action to be dismissed, the defendant must, if in custody, be discharged, or if admitted to bail, his bail must be exonerated or money deposited instead of bail must be refunded to him.

Source: SDC 1939 & Supp 1960, § 34.2203; SDCL, § 23-34-5; SL 1978, ch 178, § 537.

23A-44-5. Subsequent prosecution not barred by dismissal.

A dismissal under § 23A-44-2, 23A-44-3, or 23A-44-4 is not a bar to another prosecution for the same offense.

Source: SDC 1939 & Supp 1960, § 34.2203; SDCL, § 23-34-6; SL 1978, ch 178, § 538.

23A-44-5.1. Time allowed for disposition of criminal case--Periods excluded--Dismissal.

(1)    Every person indicted, informed or complained against for any offense shall be brought to trial within one hundred eighty days, and such time shall be computed as provided in this section.

(2)    Such one hundred eighty day period shall commence to run from the date the defendant has first appeared before a judicial officer on an indictment, information or complaint.

(3)    If such defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, such period shall commence to run from the date of the mistrial, filing of the order granting a new trial, or the filing of the mandate on remand.

(4)    The following periods shall be excluded in computing the time for trial:

(a)    The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on competency and the period during which he is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions brought under § 23A-8-3; motions for a change of venue; and the time consumed in the trial of other charges against the defendant;

(b)    The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel provided it is approved by the court and a written order filed. A defendant without counsel shall not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial and the effect of his consent;

(c)    The period of delay resulting from a continuance granted by the court at the request of the prosecuting attorney if the continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date and provided a written order is filed;

(d)    The period of delay resulting from the absence or unavailability of the defendant;

(e)    A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases the defendant shall be granted a severance so that he may be tried within the time limits applicable to him;

(f)    The period of delay resulting from a change of judge or magistrate obtained by the defendant under chapter 15-12;

(g)    The period of delay during the declaration of a judicial emergency by the Supreme Court pursuant to chapter 16-3 which shall be retroactive to the date the judicial emergency is declared; and

(h)    Other periods of delay not specifically enumerated herein, but only if the court finds that they are for good cause. A motion for good cause need not be made within the one hundred eighty day period.

(5) If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, prejudice to the defendant is presumed. Unless the prosecuting attorney rebuts the presumption of prejudice, the defendant shall be entitled to a dismissal with prejudice of the offense charged and any other offense required by law to be joined with the offense charged.

Source: Supreme Court Rule 85-4; SL 1991, ch 445 (Supreme Court Rule 91-11); SL 2012, ch 263 (Supreme Court Rule 12-09), eff. July 1, 2012; SL 2018, ch 300 (Supreme Court Rule 18-09), eff. July 1, 2018; SL 2022, ch 253 (Supreme Court Rule 21-12), eff. Sep. 1, 2021; SL 2022, ch 253 (Supreme Court Rule 21-12), eff. Sep. 1, 2021.

23A-44-6. Trial in one county as bar to prosecution in another.

When an offense is in the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution thereof in another.

Source: SDC 1939 & Supp 1960, § 34.0813; SDCL, § 23-2-13; SL 1978, ch 178, § 539.

23A-44-7. Service on parties of motions, notices, and similar papers.

Written motions, other than those which are heard ex parte, written notices and similar papers shall be served upon each of the parties.

Source: SL 1978, ch 178, § 540.

23A-44-8. (Rule 49(b)) Service on attorney for party--Service as in civil proceedings.

Whenever under this title or by a court order, service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon an attorney or upon a party shall be made in the manner provided in § 15-6-5(b).

Source: SL 1978, ch 178, § 541.