CHAPTER 23A-7
ARRAIGNMENT AND PLEAS
23A-7-1 (Rule 10) Arraignment in open court--Procedure--Verification or correction of name--Copy given to defendant.
23A-7-2 (Rule 11(a)) Pleas permitted to defendant--Requirements for plea of guilty or nolo contendere.
23A-7-3 (Rule 11(b)) Consent required for nolo contendere plea--Considerations by court.
23A-7-4 (Rule 11(c)) Advice as to rights to defendant pleading guilty or nolo contendere.
23A-7-5 (Rule 11(d)) Ascertainment of voluntary nature of guilty or nolo contendere plea--Pleading by attorney to misdemeanor--Imposition of sentence.
23A-7-6 23A-7-6. Repealed by SL 1979, ch 159, § 6.
23A-7-7 Pleading to habitual offender information--Jury trial.
23A-7-8 (Rule 11(e)(1)) Plea bargaining permitted--Concessions by prosecutor permitted--Notice to victims.
23A-7-8.1 Victim's failure to comment--Effect.
23A-7-9 Disclosure of plea agreement and victims' comments to court--Acceptance or rejection--Report by prosecuting attorney.
23A-7-10 (Rule 11(e)(3)) Advice to defendant as to acceptance of plea agreement.
23A-7-11 (Rule 11(e)(4)) Advice to parties as to rejection of plea agreement--Withdrawal of plea by defendant.
23A-7-12 (Rule 11(e)(5)) Time of notification to court of plea agreement.
23A-7-13 (Rule 11(e)(6)) Evidence of guilty or nolo contendere plea inadmissible after withdrawal--Exception in perjury prosecutions.
23A-7-14 (Rule 11(f)) Factual basis required before acceptance of plea other than nolo contendere.
23A-7-15 (Rule 11(g)) Record of proceedings at which plea entered--Contents.
23A-7-16 Guilty but mentally ill plea--Prerequisites to acceptance.
23A-7-1. (Rule 10) Arraignment in open court--Procedure--Verification or correction of name--Copy given to defendant.
An arraignment shall be conducted in open court, except that an arraignment for a Class 2 misdemeanor may be conducted in chambers, and shall consist of reading the indictment, information, or complaint, as is applicable, to the defendant or stating to him the substance of the charge and calling on him to plead thereto.
A defendant must be informed that if the name in the indictment, information, or complaint is not his true name, he must then declare his true name or be proceeded against by the name given in the indictment, information, or complaint. If he gives no other name, the court may proceed accordingly. If he alleges that another name is his true name, he shall be proceeded against pursuant to § 23A-6-20. He shall be given a copy of the indictment, information, or complaint, as is applicable, before he is called upon to plead.
Source: SDC 1939 & Supp 1960, §§ 34.2301, 34.3507; SDCL, §§ 23-35-12, 23-35-13, 23-35-18; SDCL Supp, § 23A-7-6; SL 1978, ch 178, §§ 91, 96; SL 1979, ch 159, § 5.
23A-7-2. (Rule 11(a)) Pleas permitted to defendant--Requirements for plea of guilty or nolo contendere.
A defendant may plead:
(1) Not guilty;
(2) Not guilty and not guilty by reason of insanity;
(3) Guilty;
(4) Nolo contendere; or
(5) Guilty but mentally ill.
Except as otherwise specifically provided, a plea of guilty or nolo contendere can only be entered by a defendant himself in open court. If a defendant refuses to plead, or if the court refuses to accept a plea of guilty or nolo contendere, the court shall enter a plea of not guilty. The court may not enter a judgment unless it is satisfied that there is a factual basis for any plea except a plea of nolo contendere.
Source: Supreme Court Rule 389, 1939; SDC 1939 & Supp 1960, § 34.3520; SDCL, § 23-35-16; SL 1978, ch 178, § 92; SL 1980, ch 179, § 1; SL 1983, ch 174, § 5.
23A-7-3. (Rule 11(b)) Consent required for nolo contendere plea--Considerations by court.
A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interests of the public in the effective administration of justice.
Source: SL 1978, ch 178, § 93.
23A-7-4. (Rule 11(c)) Advice as to rights to defendant pleading guilty or nolo contendere.
Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in § 23A-7-5, and inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
(5) That if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.
Source: SL 1978, ch 178, § 94.
23A-7-5. (Rule 11(d)) Ascertainment of voluntary nature of guilty or nolo contendere plea--Pleading by attorney to misdemeanor--Imposition of sentence.
A court, except as provided in this section, shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. It shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting attorney and the defendant or his attorney.
If a defendant is charged with a misdemeanor, his attorney may enter a plea of guilty, nolo contendere, or not guilty for him. The court shall inquire into whether the attorney has advised the defendant of the contents of § 23A-7-4. If the court is satisfied that the defendant has been advised, the plea may be accepted. If the plea is guilty or nolo contendere, sentence may be imposed at that time and is binding upon the defendant.
Source: SL 1913, ch 161, § 2; RC 1919, § 4741; SDC 1939 & Supp 1960, § 34.2302; SDCL, § 23-35-19; SL 1978, ch 178, § 95.
23A-7-7. Pleading to habitual offender information--Jury trial.
When an habitual offender information has been filed, after a finding of guilty on the principal offense, an admission or denial shall be made and, if necessary, an election on a jury trial shall be made on the habitual offender information. Any trial may be had to another jury, at the request of the defendant.
Source: SL 1959, ch 234; SDC Supp 1960, § 34.3009-1; SL 1961, ch 183; SDCL, § 23-32-11; SL 1976, ch 158, § 7-7; SL 1978, ch 178, § 97.
23A-7-8. (Rule 11(e)(1)) Plea bargaining permitted--Concessions by prosecutor permitted--Notice to victims.
A prosecuting attorney and an attorney for a defendant or a defendant when acting pro se may engage in discussions, with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the prosecuting attorney will do any one or more of the following:
(1) Move for dismissal of other charges or not file additional charges arising out of a different occurrence;
(2) Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court;
(3) Agree that a specific sentence is the appropriate disposition of the case; or
(4) Perform other specified acts to be made a part of the agreement.
A court shall not participate in such discussions. The prosecuting attorney shall make a reasonable effort to provide each victim of a crime of violence or an offense pursuant to chapter 22-22, his designee, or closest next of kin if victim is deceased, of the defendant's crime with an opportunity to comment on the terms of the plea agreement to the prosecuting attorney. If the victim is a minor, the victim's parent or guardian may comment on the terms of the plea agreement to the prosecuting attorney.
Source: SL 1978, ch 178, § 98; SL 1983, ch 183, § 1; SL 1985, ch 194, § 1.
23A-7-8.1. Victim's failure to comment--Effect.
If a victim or his designee fails to exercise the right granted by § 23A-7-8 or 23A-7-9, the failure is not grounds for an appeal of a conviction by a defendant or for any court to set aside, reverse, or remand a criminal conviction.
Source: SL 1985, ch 194, § 3.
23A-7-9. Disclosure of plea agreement and victims' comments to court--Acceptance or rejection--Report by prosecuting attorney.
If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court, or on a showing of good cause, in chambers, at the time the plea is offered. The prosecuting attorney shall disclose on the record any comments on the plea agreement made by the victim, or his designee, of the defendant's crime to the prosecuting attorney. Thereupon the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the court accepts a plea agreement involving any felony charge, the prosecuting attorney shall file a brief written report, which includes the terms of the plea agreement and the ultimate reasons therefor, with the division of criminal investigation and, if the defendant is incarcerated in a state correctional facility, also with the warden thereof.
Source: SL 1978, ch 178, § 100; SL 1983, ch 183, § 2; SL 1985, ch 194, § 2; SL 2023, ch 82, § 21.
23A-7-10. (Rule 11(e)(3)) Advice to defendant as to acceptance of plea agreement.
If a court accepts the plea agreement, it shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
Source: SL 1978, ch 178, § 101.
23A-7-11. (Rule 11(e)(4)) Advice to parties as to rejection of plea agreement--Withdrawal of plea by defendant.
If a court rejects the plea agreement, it shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in chambers, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, if a plea has been entered, and advise him that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to him than that contemplated by the plea agreement.
Source: SL 1978, ch 178, § 102.
23A-7-12. (Rule 11(e)(5)) Time of notification to court of plea agreement.
Notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.
Source: SL 1978, ch 178, § 103.
23A-7-13. (Rule 11(e)(6)) Evidence of guilty or nolo contendere plea inadmissible after withdrawal--Exception in perjury prosecutions.
Except as provided in this section, evidence of a plea of guilty or nolo contendere which was later withdrawn, of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to a plea of guilty or nolo contendere, later withdrawn, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury if the statement was made by the defendant under oath, on the record, and in the presence of counsel.
Source: SL 1978, ch 178, § 104.
23A-7-14. (Rule 11(f)) Factual basis required before acceptance of plea other than nolo contendere.
The court shall defer acceptance of any plea except a plea of nolo contendere until it is satisfied that there is a factual basis for the offense charged or to which the defendant pleads.
Source: SL 1978, ch 178, § 105; SL 1980, ch 179, § 2.
23A-7-15. (Rule 11(g)) Record of proceedings at which plea entered--Contents.
A verbatim record of the proceedings at which a defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the factual basis of a guilty plea. A verbatim record of a proceeding at which a defendant enters a plea to a misdemeanor need not be taken unless requested by the prosecuting attorney or the defendant.
Source: SL 1978, ch 178, § 106; SL 1979, ch 159, § 7.
23A-7-16. Guilty but mentally ill plea--Prerequisites to acceptance.
In addition to the requirements of §§ 23A-7-4 and 23A-7-5, if a defendant charged with a felony pleads guilty but mentally ill, the court may not accept the plea until the defendant has been examined by a licensed psychiatrist or a court-approved licensed psychologist and the court has examined the reports. The court shall hold a hearing on the defendant's mental condition and, if there is a factual basis on which the court can conclude that the defendant was mentally ill at the time of the offense, the plea shall be accepted.
Source: SL 1983, ch 174, § 6; SL 2016, ch 135, § 1.
