TITLE 23A
CRIMINAL PROCEDURE
Chapter
01 Scope And Purpose Of Title
02 Complaint, Warrant And Summons
03 (Rule 4.1) Arrest
04 Preliminary Proceedings Before Magistrate
05 (Rule 6) The Grand Jury
06 Indictment And Information
07 Arraignment And Pleas
08 (Rule 12) Pleadings And Pretrial Motions
09 (Rule 12.1) Notice Of Alibi
10 (Rule 12.2) Notice Of Mental Illness Defense
10A Inquiry Into Defendant's Mental Competency To Proceed
11 Joinder For Trial
12 (Rule 15) Depositions
13 (Rule 16) Discovery
14 (Rule 17) Subpoena And Attendance Of Witnesses
14A Uniform Rendition Of Prisoners As Witnesses In Criminal Proceedings Act
15 (Rule 17.1) Pretrial Conference
16 Jurisdiction And Venue Of Offenses And Proceedings
17 Transfer Of Proceedings From County
18 (Rule 23) Trial By Jury Or Court
19 The Jury Panel
20 (Rule 24) The Trial Jury
21 (Rule 25) Disability Or Disqualification Of Judge
22 Evidence
23 (Rule 29) Motion For Judgment Of Acquittal
24 Conduct Of Trial
25 Jury Instructions And Deliberations
26 (Rule 31) Verdict
27 Sentence And Judgment
27A Capital Punishment
28 Restitution To Victims Of Crime
28A Profits From Crime--Restitution
28B Crime Victims' Compensation Program
28C Crime Victims' Act
29 (Rule 33) New Trial
30 (Rule 34) Arrest Of Judgment
31 Correction Of Proceedings
32 Appeals To Supreme Court
33 Relief Pending Appeal
34 Post-Conviction Proceedings [Repealed]
35 (Rule 41) Search And Seizure
35A Interception Of Wire, Electronic, Or Oral Communications
35B Blood-Borne Pathogen Testing Of Defendants, Juveniles, And Source Individuals
36 Seizure And Disposition Of Obscene Material
37 Disposition Of Seized Property
38 (Rule 42) Contempt
39 (Rule 43) Presence Of The Defendant
40 (Rule 44) Counsel For Indigent Defendant
41 (Rule 45) Time Allowed
42 Limitation Of Criminal Prosecutions
43 Bail
44 Miscellaneous Administrative Provisions
45 Definitions And General Provisions
46 Mental Examinations And Hearings
47 Administrative Financial Accounting System
48 Probation Supervision, Response To Violation Of Conditions, And Discharge
49 Civil Forfeiture For Crime
50 Mental Health Procedures In Criminal Justice
51 Indigent Legal Services
(SDCL 23A-2-1, 23A-2-2)
STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT
) ss. (MAGISTRATE DIVISION)
COUNTY OF __________ ) _______ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA, )
Plaintiff, ) COMPLAINT FOR ________
v. ) VIOLATION OF
__________, ) (SDCL ________)
Defendant. )
(SDCL 23A-2-4, 23A-2-10, 23A-2-12)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss. (MAGISTRATE DIVISION)
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. WARRANT OF ARREST
________,
(SDCL 23A-2-6)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss. (MAGISTRATE DIVISION)
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. SUMMONS
________,
Defendant.
TO: ______________________________
(Include address if known)
(SDCL 23A-3-8)
RECEIPT FOR PROPERTY TAKEN FROM DEFENDANT
Describe Fully
__________________________________________________________________________
SURNAME FIRST MIDDLE DATE A.M. ____ BOOKING NO.
P.M. ____
__________________________________________________________________________
ALIAS
__________________________________________________________________________
ADDRESS CITY STATE PHONE NO. SOC. SEC. OR GOV'T
SERIAL NUMBER
__________________________________________________________________________
BILLFOLD OR PURSE WATCH JEWELRY RINGS
__________________________________________________________________________
TIE PIN CUFF LINKS KNIFE PENS
__________________________________________________________________________
PAPERS TIE BELT KEYS
__________________________________________________________________________
WEAPONS SERIAL #S NCIC CHECK
____POS. ____NEG.
__________________________________________________________________________
WEAPONS SERIAL #S NCIC CHECK
____POS. ____NEG.
__________________________________________________________________________
CASH AND CURRENCY STATEMENT OTHER PROPERTY
BILLS TOTAL __________________
$100 ______________ ________ __________________
50 ______________ ________ __________________
20 ______________ ________ __________________
10 ______________ ________ __________________
5 ______________ ________ __________________
1 ______________ ________ __________________
SILVER ______________ ________ __________________
GRAND TOTAL $________ __________________
THE ABOVE DESCRIBED PROPERTY HAS BEEN TAKEN THIS DATE FROM THE ABOVE
NAMED DEFENDANT.
__________________________________________________________________________
SIGNATURE TITLE ____ A.M.
DATE/ / ____ P.M.
__________________________________________________________________________
I HEREBY ACKNOWLEDGE THAT I HAVE RECEIVED ALL PROPERTY LISTED ABOVE,
EXCEPT AS HEREINAFTER LISTED:
__________________________________________________________________________
__________________________________________________________________________
(SDCL 23A-4-6, 23A-4-7)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss. (MAGISTRATE DIVISION)
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA, (ORDER HOLDING THE
Plaintiff, DEFENDANT TO ANSWER
v. CRIMINAL CHARGES IN
________, CIRCUIT COURT) (ORDER
Defendant. DISMISSING COMPLAINT)
(SDCL 23A-5-1)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
COUNTY OF ________ ________ JUDICIAL CIRCUIT
IN THE MATTER OF THE ss
________, ORDER SUMMONING
COUNTY GRAND JURY GRAND JURY
(SDCL 23A-6-4, 23A-6-10, 23A-9-1)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, INFORMATION FOR
v. ________
________, (SDCL ________)
Defendant.
(SDCL 23A-5-18, 23A-6-4, 23A-6-26, 23A-9-1)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. INDICTMENT FOR ________
________, (SDCL ________)
Defendant.
THE ____ COUNTY GRAND JURY CHARGES:
(SDCL 23A-6-26, 23A-6-27)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. WARRANT OF ARREST
________, AFTER INDICTMENT
Defendant.
(SDCL 23A-6-26, 23A-6-28)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. SUMMONS ISSUED
________, AFTER INDICTMENT
Defendant.
(SDCL 23A-7-7, 22-7-7, 22-7-11)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, PART II.
v. INFORMATION FOR
________ HABITUAL OFFENDER
Defendant. (SDCL 22-7-7)
(SDCL 23A-8-4)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA, MOTION AND ORDER
Plaintiff, PERTAINING TO FILING
v. OF PRETRIAL MOTIONS
________, AND SETTING
Defendant. A TRIAL DATE
(SDCL 23A-10-4)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. ORDER FOR PSYCHIATRIC
________ EXAMINATION
Defendant.
(SDCL 23A-14-2)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
(SDCL 23A-14-2)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. SUBPOENA TO PRODUCE
________, DOCUMENTS
Defendant.
(SDCL 23A-17-1)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. CONSENT TO TRANSFER
________ OF CASE FOR
Defendant. PLEA AND SENTENCE
(SDCL 23A-21-1, 15-12-26)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. AFFIDAVIT FOR
________ CHANGE OF JUDGE
Defendant.
(SDCL 23A-27-4, 23A-27-27)
(PLEA)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA
Plaintiff,
v. JUDGMENT OF CONVICTION
________,
Defendant.
(SDCL 23A-27-4)
(TRIAL)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, (JUDGMENT OF
v. CONVICTION)
________, (JUDGMENT OF
Defendant. ACQUITTAL)
(SDCL 23A-27-5)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA, DEFENDANT'S APPROVAL
Plaintiff, TO INSTITUTE A
v. PRESENTENCE
________, INVESTIGATION
Defendant. BEFORE CONVICTION
OR PLEA
(SDCL 23A-27-5)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA, DEFENDANT'S CONSENT TO
Plaintiff, THE COURT'S INSPECTION
(SDCL 23A-27-5)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA DEFENDANT'S WAIVER
Plaintiff, OF PREPARATION
v. OF PRESENTENCE
________, INVESTIGATION
Defendant. AND REPORT
(SDCL 23A-27-5, 23A-7-9)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, ORDER FOR
v. PRESENTENCE
________, INVESTIGATION
(SDCL 23A-27-13)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA
Plaintiff,
v. ORDER SUSPENDING
________, IMPOSITION OF SENTENCE
Defendant.
(SDCL 23A-27-18)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, JUDGMENT OF CONVICTION
v. AND ORDER SUSPENDING
________, SENTENCE
Defendant.
Form 26. Order of discharge from probation supervision
(SDCL 23A-27-14)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, ORDER OF
v. DISCHARGE FROM
________, SUPERVISED PROBATION
Defendant.
(SDCL 23A-27-14)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, ORDER OF DISMISSAL
v. AND DISCHARGE
________, OF SUSPENDED
Defendant. IMPOSITION OF SENTENCE
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, NOTICE OF PRELIMINARY
v. HEARING ON REVOCATION
________, OF PROBATION
Defendant.
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, WAIVER OF PRELIMINARY
v. HEARING ON REVOCATION
________, OF PROBATION
Defendant.
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. WARRANT OF ARREST
________,
Defendant
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, PETITION FOR
v. REVOCATION
________, OF PROBATION
Defendant.
(SDCL 23A-27-32)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. OFFICIAL STATEMENT
________,
Defendant.
CHARGE: ________________________________________________________________
COMMITTED AS FOLLOWS, TO-WIT: That on the ________ day of ________, 20____, the
above-named Defendant ___________________________________________
__________________________________________________________________________
__________________________________________________________________________
PLEADS: __________________________ VERDICT _____________________________
__________________________________________________________________________
__________________________________________________________________________
ASSOCIATES _____________________________________________________________
HABITS __________________________________________________________________
REPUTATION ____________________________________________________________
CRIMINAL RECORD ______________________________________________________
__________________________________________________________________________
__________________________________________________________________________
DISPOSITION BEHAVIOR WHILE AWAITING TRIAL __________________________
__________________________________________________________________________
__________________________________________________________________________
JUDGE'S COMMENTS: _____________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Dated this ________ day of ________, 20____, at ________, South Dakota.
(SDCL 23A-35-4)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
MAGISTRATE DIVISION
(SDCL 23A-35-4)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
MAGISTRATE DIVISION
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, SEARCH WARRANT ISSUED
v. UPON ORAL TESTIMONY
________, ORIGINAL
(SDCL 23A-35-4)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
MAGISTRATE DIVISION
COUNTY ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, SEARCH WARRANT ISSUED
(SDCL 23A-35-10)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
(SDCL 23A-40)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, APPLICATION & ORDER
v. FOR COURT
________, APPOINTED COUNSEL
Defendant.
APPLICATION
(SDCL 23A-43-2)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, PERSONAL RECOGNIZANCE
v. BOND AND
________, APPEARANCE BOND
Defendant.
Non-surety: ________ I, the undersigned Defendant, acknowledge that I and (my) ________
STATE OF SOUTH DAKOTA IN ________ COURT
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. WAIVER OF
________, EXTRADITION RIGHTS
Defendant.
(SDCL 23A-43-6)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, ORDER SPECIFYING
v. METHODS AND
________, CONDITIONS OF RELEASE
| It is hereby ORDERED that the Defendant be released, provided (Check One): | |
|
Personal Recognizance |
________ that he promises to appear at all scheduled hearings as required. |
|
Unsecured Bond |
______ that he will execute a bond binding himself to pay
_______ County the sum of ________ dollars ($ ) in the
event that he fails to appear as required. [NOTE: The judicial officer is required to release the defendant by one of the above methods unless he determines that such a release will not reasonably assure the appearance of the defendant as required. In the event such a determination is made, the judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first condition of release listed below which will reasonably assure the appearance of the person for trial. If no single condition gives that assurance, any combination of conditions may be used.] |
|
Part II-Conditions of Release
|
|
| Upon finding that release by one of the above methods will not by itself reasonably assure the appearance of the Defendant, it is hereby FURTHER ORDERED that the Defendant be released on the condition(s) checked below: | |
| Third Party | |
| Custody |
________ (1) The Defendant is placed in the custody of
(Name of person/organization) _____________________ (Address) ______________________________________ (City & State)________ Telephone ________ who agrees (a) to supervise the Defendant in accordance with conditions 2 and 5 as checked below, (b) to use every effort to assure the appearance of the Defendant at all scheduled hearings before this Court, and (c) to notify this Court immediately in the event the Defendant violates any condition of his release or disappears. SIGNED: __________________
Custodian or Proxy
|
| Restrictions on Travel, Association, or Place of Abode | ________ (2) The Defendant will comply with each of the following conditions: __________________________ ______________________________________________ ______________________________________________ |
| 10% Deposit | ________ (3) The defendant will execute a bond binding himself to pay to ________ County of South Dakota, the sum of ________ dollars ($ ) and will deposit with the Clerk of Court the sum of ________ dollars ($ ), in ________ (cash/security), being not more than 10% of the amount of the bond, such deposits to be returned upon the court's determination that the Defendant has performed the conditions of his release. |
| Cash or Surety Bond | ________ (4) The Defendant will execute a bond in the amount of ________ dollars ($ ) either secured by the under-takings of sufficient solvent sureties or by the deposit of an equal amount of cash or other security in lieu thereof. |
| Part-time Release | ________ (5) (a) The Defendant will be released from ________ (a.m./p.m.) to ________ (a.m./p.m.) on ________ (specify days of the week) on condition that he return to custody at the specified time at such place of confinement as this Court shall designate. |
| Other Conditions |
________ (5) (b) The Defendant agrees that he will comply
with the following other conditions of release:
______________________________________________ [NOTE: A defendant for whom conditions of release are imposed and who after twenty-four hours from the time of release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon application, be entitled to have the conditions reviewed by the judge/magistrate who imposed them.] |
|
Part III-Appearance and Penalties
|
|
| Appearance | It is hereby FURTHER ORDERED that the Defendant shall appear next at ________ on the ________ day of ________, 19____ at ________ (a.m./p.m.) and at such other places and times as this Court may order or direct. |
| Penalties |
If the Defendant violates any condition of his release, a
warrant for his arrest will be issued immediately. After
arrest, the terms and conditions of any further release will be
redetermined. If the Defendant fails to appear before any court or judicial officer as required, an additional criminal case may be instituted against him. If the failure to appear is in connection with a charge of felony or while awaiting sentence after conviction, the penalty is a fine of not more than $5,000 or imprisonment for not more than five years, or both; if he fails to appear in connection with a misdemeanor charge, the fine may be $1,000 or not more than one year in the county jail or both. |
|
Part IV-Acknowledgment by Defendant
|
|
| Acknowledgment |
I, ________ understand the methods and conditions of my
release which have been checked above and the penalties and
forfeitures applicable in the event I violate any condition or
fail to appear as required. I agree to comply fully with each of the obligations imposed on my release and to notify this Court promptly in the event I change the address indicated below. __________________________
Defendant
__________________________
Address
__________________________
City/State Telephone
|
| RELEASE ORDERED: |
Date: ________ (________ County Sheriff's Office) (________ Police Department) Your copy of the Order Specifying Methods and Conditions of Release constitutes your authority for the commitment of the Defendant until such time as all conditions of release are complied with. You are authorized to process the Defendant for release upon notification from the Clerk of Courts. You are directed to produce the Defendant before the appropriate judge or magistrate at the time and place specified above, if the Defendant is still in your custody. |
(SDCL 23A-43-21)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. ORDER ISSUING
________, A BENCH WARRANT
Defendant.
(SDCL 23A-27-21)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss.
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff,
v. BENCH WARRANT
________,
Defendant.
(SDCL 23A-44-2)
STATE OF SOUTH DAKOTA IN CIRCUIT COURT
ss. (MAGISTRATE DIVISION)
COUNTY OF ________ ________ JUDICIAL CIRCUIT
STATE OF SOUTH DAKOTA,
Plaintiff, DISMISSAL OF
v. (COMPLAINT)(INDICTMENT)
________, (INFORMATION)
Defendant.
23A-1-1
(Rule 1) Proceedings governed by title.
23A-1-2
(Rule 2) Purposes of title--Construction.
23A-1-1. (Rule 1) Proceedings governed by title.
This title shall govern the procedure to be used in the courts of this state in all criminal proceedings and in all proceedings for violations of ordinances and bylaws of units of local government of this state.
Source: SL 1978, ch 178, § 1.
23A-1-2. (Rule 2) Purposes of title--Construction.
This title is intended to provide for the just determination of every criminal proceeding. It shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
Source: SL 1978, ch 178, § 2.
23A-2-1
Complaint as statement of offense--Signature under oath--Traffic ticket issued by law
enforcement officer.
23A-2-2
(Rule 4(a)) Warrant or summons issued on complaint--Sworn oral testimony--Failure
of defendant to respond to summons.
23A-2-3
(Rule 4(b)) Evidence furnishing probable cause for warrant or summons.
23A-2-4
(Rule 4(c)(1)) Contents and signature of arrest warrant--Endorsement as to bail.
23A-2-5
Copies of warrant sent to law enforcement officers.
23A-2-5.1
Facsimile transmission of complaint or indictment--Issue of arrest warrant--Proof of
magistrate's signature.
23A-2-6
(Rule 4(c)(2)) Contents and signature of summons.
23A-2-7
(Rule 4(d)(1)) Execution of warrant or summons by law enforcement officer.
23A-2-8
(Rule 4(d)(2)) Place of service of warrant or summons--Restriction when for
violation of local ordinance or bylaw.
23A-2-9
(Rule 4(d)(3)) Warrant executed by arrest--Advice to defendant as to warrant--Manner of service of summons.
23A-2-10
Time of execution of warrant.
23A-2-11
Service of summons on corporate defendant.
23A-2-12
(Rule 4(d)(4)) Return of warrant or summons to committing magistrate--Cancellation
or delivery to another of unexecuted process.
23A-2-13
Transferred.
23A-2-14
Transferred.
23A-2-1. Complaint as statement of offense--Signature under oath--Traffic ticket issued by law enforcement officer.
A complaint is a written statement of the essential facts constituting an offense charged. The complaint shall be signed under oath before a person authorized to administer oaths in the State of South Dakota. A law enforcement officer, in lieu of signing a complaint for a misdemeanor or felony under oath, may sign a statement printed or written on a complaint or summons on a uniform traffic ticket stating: "I declare and affirm under the penalties of perjury that this complaint or summons has been examined by me, and to the best of my knowledge and belief, is in all things true and correct." Any person who signs a statement as required by this section, knowing the statement to be false or untrue, in whole or in part, is guilty of perjury.
Source: SDC 1939 & Supp 1960, § 34.1501; SDCL § 23-19-2; SL 1978, ch 178, § 3; SL 2015, ch 134, § 2; SL 2017, ch 105, § 1.
23A-2-2. (Rule 4(a)) Warrant or summons issued on complaint--Sworn oral testimony--Failure of defendant to respond to summons.
If it appears from a complaint, or from an affidavit or affidavits filed with a complaint, that there is probable cause to believe that an offense has been committed and that a particular person has committed it, a warrant for the arrest of that person, if requested by the prosecuting attorney, shall be issued to any officer authorized by law to execute it. If circumstances make it reasonable to do so in the absence of a written affidavit, an arrest warrant may be issued upon sworn oral testimony of a person who is not in the physical presence of a committing magistrate if the committing magistrate is satisfied that probable cause exists for the issuance of the warrant. The sworn oral testimony may be communicated to the magistrate by telephone or other appropriate means and shall be recorded and transcribed. After transcription the statement shall be certified by the magistrate and filed with the court. This statement shall be deemed to be an affidavit and complaint for purposes of this section. In cases of alleged rape, incest, or sexual contact, if the victim is a minor, the court may limit access to the affidavit pursuant to § 23A-6-22.1. Upon the request of the prosecuting attorney, a summons instead of a warrant shall be used. More than one warrant or summons may be issued on the same complaint. If a defendant fails to appear in response to a summons, a warrant shall be issued.
Source: CCrimP 1877, § 95; CL 1887, § 7120; RCCrimP 1903, § 92; RC 1919, § 4528; SDC 1939 & Supp 1960, § 34.1615; SDCL § 23-21-5; SL 1978, ch 178, § 4; SL 1992, ch 171; SL 2011, ch 124, § 3.
23A-2-3. (Rule 4(b)) Evidence furnishing probable cause for warrant or summons.
The finding of probable cause for the issuance of a summons or warrant of arrest may be based upon hearsay evidence in whole or in part. The committing magistrate may require nonhearsay evidence to be submitted prior to the issuance of a summons or warrant of arrest.
Source: SL 1978, ch 178, § 5.
23A-2-4. (Rule 4(c)(1)) Contents and signature of arrest warrant--Endorsement as to bail.
Each arrest warrant shall be dated and contain its place of issuance. It shall be signed by a committing magistrate. It shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall command that the defendant be brought before the nearest available committing magistrate. The committing magistrate who signs the warrant shall also endorse the amount of bail on it.
Source: CCrimP 1877, § 97; CL 1887, § 7122; RCCrimP 1903, § 94; RC 1919, § 4530; SDC 1939 & Supp 1960, § 34.1616; SDCL, § 23-21-2; SL 1978, ch 178, § 6.
23A-2-5. Copies of warrant sent to law enforcement officers.
A copy or an abstract of a warrant containing the information required by § 23A-2-4 may be sent by any means to one or more law enforcement officers. Such copy shall confer the same authority to any law enforcement officer within his jurisdiction as the original warrant.
Source: SDC 1939, § 34.1621 as added by SL 1966, ch 119; SDCL, § 23-22-31; SL 1978, ch 178, § 9.
23A-2-5.1. Facsimile transmission of complaint or indictment--Issue of arrest warrant--Proof of magistrate's signature.
A committing magistrate may, by means of facsimile transmission, receive a complaint or indictment in request of the issuance of an arrest warrant and may issue an arrest warrant by the same method. All applicable procedural and statutory requirements for the issuance of an arrest warrant shall be met. For all procedural and statutory purposes, the facsimile shall have the same force and effect as the original. The original documents shall be filed with the court within five working business days.
The officer executing the arrest warrant shall receive proof that the committing magistrate has signed the warrant before the warrant is executed. Proof that the committing magistrate has signed the warrant may consist of receipt of the facsimile of the arrest warrant.
Source: SL 1991, ch 451 (Supreme Court Rule 91-17).
23A-2-6. (Rule 4(c)(2)) Contents and signature of summons.
A summons shall be in the same form as a warrant of arrest except that it shall summon the defendant to appear before a committing magistrate at a stated time and place. In addition, a summons shall state that if the defendant does not appear, a warrant will be issued for his arrest. A summons must be signed by a committing magistrate.
Source: SL 1978, ch 178, § 8.
23A-2-7. (Rule 4(d)(1)) Execution of warrant or summons by law enforcement officer.
A warrant or summons shall be executed by any law enforcement officer who is authorized by law to execute the same. This section shall not be construed to extend the territorial jurisdiction of any law enforcement officer.
Source: SL 1978, ch 178, § 10.
23A-2-8. (Rule 4(d)(2)) Place of service of warrant or summons--Restriction when for violation of local ordinance or bylaw.
Except as provided in this section and § 23A-3-7, a warrant may be executed or a summons may be served at any place within the state.
A warrant or summons issued for the violation of a municipal ordinance may be executed or served at any place within a county in which such municipality is located, except that a warrant or summons issued for a parking violation may be executed or served only within the territorial jurisdiction of such unit of local government.
Source: SL 1978, ch 178, § 11; SL 1979, ch 159, § 1A.
23A-2-9. (Rule 4(d)(3)) Warrant executed by arrest--Advice to defendant as to warrant--Manner of service of summons.
A warrant is executed by the arrest of the defendant. A law enforcement officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the law enforcement officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued.
A summons shall be served upon a defendant at least five days before the day of appearance fixed therein by delivering a copy to him personally or by leaving it at his dwelling house or usual place of abode with some person over the age of fourteen years then residing therein.
Source: CCrimP 1877, § 119; CL 1887, § 7144; RCCrimP 1903, § 116; RC 1919, § 4549; SDC 1939 & Supp 1960, § 34.1603; SDCL, § 23-22-6; SL 1978, ch 178, § 12.
23A-2-10. Time of execution of warrant.
A warrant issued for a felony may be executed on any day, at any time of the day or night. A warrant issued for a misdemeanor shall not be executed at night unless an authorization for a night arrest is endorsed upon the warrant by the committing magistrate.
Source: CCrimP 1877, § 116; CL 1887, § 7141; RCCrimP 1903, § 113; RC 1919, § 4546; SDC 1939 & Supp 1960, § 34.1604; SDCL, § 23-22-13; SL 1978, ch 178, § 12.
23A-2-11. Service of summons on corporate defendant.
No warrant of arrest may be issued against a corporation. A summons directed to a corporation shall be served at least five days before the day of appearance fixed therein by delivering it to the president or other head of the corporation, or to its secretary, treasurer, managing agent, or authorized agent for service of process.
Source: SDC 1939 & Supp 1960, § 34.3801; SDCL, § 23-27-27; SL 1978, ch 178, § 12.
23A-2-12. (Rule 4(d)(4)) Return of warrant or summons to committing magistrate--Cancellation or delivery to another of unexecuted process.
The law enforcement officer executing a warrant shall make return thereof to the committing magistrate before whom the defendant is brought pursuant to § 23A-4-1. At the request of the prosecuting attorney any unexecuted warrant may be returned to the committing magistrate who issued it and may be cancelled by him. On or before the return day the person to whom a summons was delivered for service shall make return thereof to the committing magistrate to whom the summons is returnable. At the request of the prosecuting attorney made at any time while the complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved, or a duplicate thereof, may be delivered by the committing magistrate to an authorized person for execution or service.
Source: SL 1978, ch 178, § 13.
CHAPTER 23A-3
(RULE 4.1) ARREST
23A-3-1 Definition of arrest.
23A-3-2 Law enforcement officer's power to arrest without warrant.
23A-3-2.1 Circumstances permitting warrantless arrests.
23A-3-2.2 23A-3-2.2. Transferred to § 25-10-35
23A-3-3 Citizen's arrest.
23A-3-4 Advice as to authority and cause of arrest without warrant.
23A-3-5 Manner of making arrest--Physical restraint--Weapons and contraband property--Breaking structure to make arrest.
23A-3-6 Aid to law enforcement officer on request.
23A-3-7 Restriction on place of arrest for violation of local ordinance or bylaw.
23A-3-8 Receipts given for property taken from person arrested.
23A-3-9 Fresh pursuit misdemeanor arrest by officer of another state.
23A-3-10 Fresh pursuit felony arrest by officer of another state.
23A-3-11 Other powers of arrest unimpaired by fresh pursuit authority.
23A-3-12 Taking before magistrate of person arrested by officer of another state--Commitment to await extradition--Discharge if arrest unlawful.
23A-3-13 District of Columbia treated as state.
23A-3-14 Definition of fresh pursuit for interstate felony arrest.
23A-3-15 Citation of provisions on interstate pursuit.
23A-3-16 Arrest for misdemeanor on intrastate fresh pursuit.
23A-3-17 Arrest for felony on intrastate fresh pursuit.
23A-3-18 Disposition of prisoner taken on intrastate fresh pursuit.
23A-3-19 Definition of fresh pursuit in intrastate felony arrests.
23A-3-20 Citation of provisions on intrastate fresh pursuit.
23A-3-21 23A-3-21. Transferred to § 25-10-36
23A-3-22 23A-3-22, 23A-3-23. Transferred to §§ 25-10-38, 25-10-39
23A-3-24 Federal law enforcement officer defined.
23A-3-25 Authority of federal law enforcement officer.
23A-3-26 Definition of expungement.
23A-3-27 Motion for expungement of arrest record.
23A-3-28 Service of motion--Fee.
23A-3-29 Hearing on motion for expungement.
23A-3-30 Order of expungement.
23A-3-31 Report to Division of Criminal Investigation--Retention and use of nonpublic records--Sealing of records.
23A-3-32 Effect of order of expungement.
23A-3-33 No time limitation for making application.
23A-3-34 Defendant's public record--Automatic removal of non-felony charges or convictions--Case record available to authorized personnel--Use as enhancement
23A-3-35 Eligibility of person placed in diversion program for expungement of record.
23A-3-36 Dismissal of charges and notice of completion of diversion.
23A-3-37 Expungement of record on filing of dismissal and notice.
23A-3-1. Definition of arrest.
An arrest is the taking of a person into custody so that he may be held to answer for the alleged commission of a public offense.
Source: SDC 1939 & Supp 1960, § 34.1601; SDCL, § 23-22-1; SL 1978, ch 178, § 14.
23A-3-2. Law enforcement officer's power to arrest without warrant.
A law enforcement officer may, without a warrant, arrest a person:
(1) For a public offense, other than a petty offense, committed or attempted in his presence; or
(2) Upon probable cause that a felony or Class 1 misdemeanor has been committed and the person arrested committed it, although not in the officer's presence.
Source: SDC 1939 & Supp 1960, § 34.1609; SDCL, § 23-22-7; SL 1978, ch 178, § 15; SL 1979, ch 159, § 1.
23A-3-2.1. Circumstances permitting warrantless arrests.
Unless the provisions of § 22-18-5 apply, a law enforcement officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, any person, without a warrant, at any time that the opportunity presents itself, if the officer has probable cause to believe that:
(1) An order has been issued under chapter 25-10 protecting the victim and the terms of the order prohibiting acts or threats of abuse or excluding the person from a residence have been violated; or
(2) An order has been issued under chapter 22-19A protecting the victim and the terms of the order prohibiting acts of stalking or physical injury have been violated; or
(3) The person is eighteen years or older and within the preceding forty-eight hours has assaulted a person in a relationship as defined in § 25-10-3.1;
and the officer believes that an aggravated assault has occurred; an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or an attempt by physical menace has been made to put another in fear of imminent serious bodily harm.
Source: SL 1989, ch 207, § 1; SL 1996, ch 153; SL 1998, ch 146, § 1; SL 2001, ch 119, § 1; SL 2006, ch 134, § 1; SL 2015, ch 139, § 1.
23A-3-3. Citizen's arrest.
Any person may arrest another:
(1) For a public offense, other than a petty offense, committed or attempted in his presence; or
(2) For a felony which has been in fact committed although not in his presence, if he has probable cause to believe the person to be arrested committed it.
Source: SDC 1939 & Supp 1960, § 34.1608; SDCL, § 23-22-14; SL 1978, ch 178, § 16.
23A-3-4. Advice as to authority and cause of arrest without warrant.
When arresting a person without a warrant, the person making the arrest must inform the person to be arrested of his authority and the cause of the arrest, and require him to submit, except when the person to be arrested is engaged in the actual commission of an offense or when he is arrested on pursuit immediately after its commission.
Source: SDC 1939 & Supp 1960, §§ 34.1608, 34.1609; SDCL, §§ 23-22-9, 23-22-15; SL 1978, ch 178, § 17.
23A-3-5. Manner of making arrest--Physical restraint--Weapons and contraband property--Breaking structure to make arrest.
An arrest is made by an actual or attempted restraint of the person arrested or by his submission to the custody of the person making the arrest. No person shall subject an arrested person to more physical restraint than is reasonably necessary to effect the arrest. Any person making an arrest may take from the arrested person all dangerous weapons and property as defined in § 23A-35-3 which the arrested person may have about his person.
Any law enforcement officer having authority to make an arrest may break open an outer or inner door or window of a dwelling house or other structure for the purpose of making the arrest if, after giving reasonable notice of his intention, he is refused admittance, and if:
(1) The law enforcement officer has obtained an arrest warrant; or
(2) Exigent circumstances justify a warrantless arrest.
Source: SDC 1939 & Supp 1960, §§ 34.1603, 34.1605, 34.1606; SDCL, §§ 23-22-4, 23-22-17, 23-22-18; SL 1978, ch 178, § 18; SL 1985, ch 193.
23A-3-6. Aid to law enforcement officer on request.
Every person must aid a law enforcement officer in making an arrest if the officer requests his aid.
Source: SDC 1939 & Supp 1960, § 34.1601; SDCL, § 23-22-3; SL 1978, ch 178, § 19.
23A-3-7. Restriction on place of arrest for violation of local ordinance or bylaw.
No arrest for the violation of an ordinance or bylaw of any unit of local government may be made beyond the territorial jurisdiction of that unit of local government, except as otherwise provided in § 23A-2-8.
Source: SL 1978, ch 178, § 20; SL 1979, ch 159, § 1B.
23A-3-8. Receipts given for property taken from person arrested.
When money or property, other than that seized pursuant to chapters 23A-35 to 23A-37, inclusive, is taken from a defendant arrested upon a charge of having committed a public offense, the law enforcement officer taking it must, at the time, make duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken. One of the receipts shall be given to the defendant.
Source: SDC 1939 & Supp 1960, § 34.0601; SDCL, § 23-16-1; SL 1978, ch 178, § 21.
23A-3-9. Fresh pursuit misdemeanor arrest by officer of another state.
Any member of a duly organized state, county, or municipal law enforcing unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the ground that the person is believed to have committed a misdemeanor in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county, or municipal law enforcing unit of this state, to arrest and hold in custody a person on the ground that the person is believed to have committed a misdemeanor in this state. The term "fresh pursuit" as used in this section shall include the pursuit of a person who has committed a misdemeanor in the presence of a law enforcement officer, and such officer is in instant pursuit.
Source: SL 1978, ch 178, §§ 23, 28.
23A-3-10. Fresh pursuit felony arrest by officer of another state.
Any member of a duly organized state, county, or municipal law enforcing unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the ground that the person is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county, or municipal law enforcing unit of this state, to arrest and hold in custody a person on the ground that the person is believed to have committed a felony in this state.
Source: SL 1939, ch 139, §§ 1, 3; SDC Supp 1960, §§ 34.16B01, 34.16B03; SDCL, § 23-23-4; SL 1978, ch 178, § 22.
23A-3-11. Other powers of arrest unimpaired by fresh pursuit authority.
Neither § 23A-3-9 nor 23A-3-10 shall be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
Source: SL 1939, ch 139, §§ 1, 3; SDC Supp 1960, §§ 34.16B01, 34.16B03; SDCL, § 23-23-4; SL 1978, ch 178, § 25.
23A-3-12. Taking before magistrate of person arrested by officer of another state--Commitment to await extradition--Discharge if arrest unlawful.
If an arrest is made in this state by an officer of another state in accordance with the provisions of § 23A-3-9 or 23A-3-10, the officer shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this state or admit the person to bail for such purpose. If the magistrate determines that the arrest was unlawful the magistrate shall discharge the person arrested.
Source: SL 1939, ch 139, § 2; SDC Supp 1960, § 34.16B02; SDCL, §§ 23-23-5, 23-23-6; SL 1978, ch 178, § 24.
23A-3-13. District of Columbia treated as state.
For the purposes of §§ 23A-3-9 to 23A-3-15, inclusive, the word "state" shall include the District of Columbia.
Source: SL 1939, ch 139, § 4; SDC Supp 1960, § 34.16B04; SDCL, § 23-23-3; SL 1978, ch 178, § 26.
23A-3-14. Definition of fresh pursuit for interstate felony arrest.
The term "fresh pursuit" as used in §§ 23A-3-10 to 23A-3-14, inclusive, shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit as used in this title shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
Source: SL 1939, ch 139, § 5; SDC Supp 1960, § 34.16B05; SDCL, § 23-23-2; SL 1978, ch 178, § 27.
23A-3-15. Citation of provisions on interstate pursuit.
Sections 23A-3-10 to 23A-3-14, inclusive, may be cited as the Uniform Act on Interstate Fresh Pursuit.
Source: SL 1978, ch 178, § 29.
23A-3-16. Arrest for misdemeanor on intrastate fresh pursuit.
Any law enforcement officer of this state in fresh pursuit of a person who has committed a misdemeanor in the presence of the law enforcement officer shall have authority to arrest and hold in custody such person anywhere in this state. This section shall not make unlawful an arrest which would otherwise be lawful. The term "fresh pursuit" as used in this section shall include fresh pursuit of a person who has committed a misdemeanor in the presence of a law enforcement officer, and the law enforcement officer is in instant pursuit.
Source: SL 1978, ch 178, §§ 31, 34.
23A-3-17. Arrest for felony on intrastate fresh pursuit.
Any law enforcement officer of this state in fresh pursuit of a person who is reasonably believed by him to have committed a felony in this state shall have the authority to arrest and hold in custody such person anywhere in this state. This section shall not make unlawful an arrest which would otherwise be lawful.
Source: SL 1941, ch 153, §§ 1, 4; SDC Supp 1960, §§ 34.16A02, 34.16A05; SDCL, § 23-22-39; SL 1978, ch 178, § 30.
23A-3-18. Disposition of prisoner taken on intrastate fresh pursuit.
If an arrest under § 23A-3-17 is made in obedience to a warrant, the disposition of the prisoner shall be as in other cases of arrest under a warrant; if the arrest is without a warrant, the prisoner shall without unnecessary delay be taken before a magistrate of the county where the arrest was made, and the court shall admit the prisoner to bail, if the offense is bailable, by taking security by way of recognizance for the appearance of the prisoner before the court having jurisdiction of the criminal offense.
Source: SL 1941, ch 153, § 2; SDC Supp 1960, § 34.16A03; SDCL, § 23-22-40; SL 1978, ch 178, § 32.
23A-3-19. Definition of fresh pursuit in intrastate felony arrests.
The term "fresh pursuit" as used in §§ 23A-3-17 to 23A-3-19, inclusive, shall include fresh pursuit as defined by the common law and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony in this state. It shall also include the pursuit of a person suspected of having committed a supposed felony in this state, though no felony has actually been committed, if there is reasonable ground for so believing. Fresh pursuit as used here shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
Source: SL 1941, ch 153, § 3; SDC Supp 1960, § 34.16A04; SDCL, § 23-22-38; SL 1978, ch 178, § 33.
23A-3-20. Citation of provisions on intrastate fresh pursuit.
Sections 23A-3-17 to 23A-3-19, inclusive, may be called the "Uniform Law on Intrastate Fresh Pursuit."
Source: SL 1941, ch 153, § 5; SDC Supp 1960, § 34.16A01; SDCL, § 23-22-41; SL 1978, ch 178, § 35.
23A-3-24. Federal law enforcement officer defined.
For the purposes of § 23A-3-25, the term, federal law enforcement officer, means any officer or employee of the Federal Bureau of Investigation, the Drug Enforcement Administration, the United States Marshall Service, the Internal Revenue Service, the Secret Service, the Bureau of Alcohol, Tobacco, and Firearms, the United States Postal Inspection Service, the Federal Protective Service, the United States Fish and Wildlife Service, the United States Forest Service, the Immigration and Customs Enforcement Office of Investigations, or the National Park Service, who is responsible for the prevention or detection of crimes or for the enforcement of the United States Code and who is authorized to arrest, with or without a warrant, any person for a violation of the United States Code.
Source: SL 1994, ch 175, § 1; SL 2005, ch 125, § 1; SL 2006, ch 135, § 1; SL 2008, ch 115, § 1; SL 2010, ch 125, § 1.
23A-3-25. Authority of federal law enforcement officer.
Any federal law enforcement officer holds the same authority as a state or local law enforcement officer in this state when making an arrest for a nonfederal crime under any of the following circumstances:
(1) The officer has reasonable grounds to believe that a state felony has been committed and that the person arrested committed such felony;
(2) The officer is rendering assistance to a state or local law enforcement officer in an emergency or at the request of the state or local law enforcement officer; or
(3) The officer is participating in a task force composed of state or local law enforcement officers and federal law enforcement officers.
Source: SL 1994, ch 175, § 2.
23A-3-26. Definition of expungement.
Terms used in §§ 23A-3-27 to 23A-3-33, inclusive, mean:
(1) "Expungement," the sealing of all records on file within any court, detention or correctional facility, law enforcement agency, criminal justice agency, or Department of Public Safety concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system. Expungement does not imply the physical destruction of records.
Source: SL 2010, ch 126, § 1.
23A-3-27. Motion for expungement of arrest record.
An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest:
(1) After one year from the date of any arrest, if no accusatory instrument was filed;
(2) After one year from the date the prosecuting attorney formally dismisses the entire criminal case on the record;
(3) At any time after an acquittal; or
(4) Within one year from the date the prosecuting attorney formally dismisses the entire criminal case on the record upon a showing of compelling necessity.
Source: SL 2010, ch 126, § 2; SL 2012, ch 131, § 1; SL 2015, ch 140, § 1; SL 2022, ch 71, § 1, eff. Mar. 15, 2022.
23A-3-28. Service of motion--Fee.
At least fourteen days before any hearing on a motion for expungement, a copy of the motion shall be served upon the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no accusatory instrument filed. The prosecuting attorney may contest the motion in writing and at the hearing on the motion.
When a defendant or arrested person makes a motion under this section, the defendant or arrested person shall pay to the clerk of courts in the county where the motion is filed a fee equal to the filing fee for a civil action. If the defendant or arrested person establishes to the court's satisfaction that the person is indigent and unable to pay the fee, the court may waive the filing fee.
Source: SL 2010, ch 126, § 3.
23A-3-29. Hearing on motion for expungement.
The court may fix a time and place for a hearing on the motion unless waived by the defendant, arrested person, prosecuting attorney, and victim. The court may require the filing of such affidavits and may require the taking of such evidence as it deems proper.
Source: SL 2010, ch 126, § 4.
23A-3-30. Order of expungement.
The court may enter an order of expungement upon a showing by the defendant or the arrested person by clear and convincing evidence that the ends of justice and the best interest of the public as well as the defendant or the arrested person will be served by the entry of the order.
Source: SL 2010, ch 126, § 5; SL 2015, ch 140, § 2.
23A-3-31. Report to Division of Criminal Investigation--Retention and use of nonpublic records--Sealing of records.
Any order of expungement 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 the defendant or arrested person for subsequent offenses.
As part of any order of expungement, the 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 defendant or arrested person's arrest, detention, indictment or information, trial, and disposition.
Source: SL 2010, ch 126, § 6.
23A-3-32. Effect of order of expungement.
The effect of an order of expungement is to restore the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person's arrest or indictment or information. No person as to whom an order of expungement 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 the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose.
Source: SL 2010, ch 126, § 7.
23A-3-33. No time limitation for making application.
A court may issue an order of expungement for arrests that occurred before, as well as those that occurred after, July 1, 2010. There is no statute of limitation for making an application.
Source: SL 2010, ch 126, § 8.
23A-3-34. Defendant's public record--Automatic removal of non-felony charges or convictions--Case record available to authorized personnel--Use as enhancement.
Any charge or conviction resulting from a case where a petty offense, municipal ordinance violation, or a Class 2 misdemeanor was the highest charged offense shall be automatically removed from a defendant's public record after five years if all court-ordered conditions on the case have been satisfied and the defendant has not been convicted of any further offenses within those five years. However, the case record remains available to court personnel or as authorized by order of the court and may be used as an enhancement in the prosecution of subsequent offenses as provided by law.
Source: SL 2016, ch 134, § 1; SL 2021, ch 106, § 1.
23A-3-35. Eligibility of person placed in diversion program for expungement of record.
If an arrested person is placed in a diversion program, the person is eligible for an expungement of the entire criminal record related to that arrest if:
(1) The person has successfully completed all the terms of the diversion program; and
(2) The person has not been charged with any new crimes, except for petty offenses or minor traffic citations, within one year and thirty days from the date of the successful completion of the diversion program.
Nothing in this section requires a state's attorney to place any arrested person into a diversion program or to otherwise create or implement a diversion program.
Source: SL 2018, ch 143, § 1.
23A-3-36. Dismissal of charges and notice of completion of diversion.
If the requirements of § 23A-3-35 have been met, the state's attorney shall file a dismissal of all the charges related to that arrest and a notice of completion of the diversion program by the arrested person.
Source: SL 2018, ch 143, § 2.
23A-3-37. Expungement of record on filing of dismissal and notice.
Upon the filing of the dismissal and notice of completion of the diversion program, the court shall grant the expungement without the filing of a motion or any further action by the court.
Source: SL 2018, ch 143, § 3.
23A-4-1
Arrested person taken before magistrate--Complaint filed on arrest without warrant.
23A-4-2
(Rule 5(b)) Procedure on minor offenses cognizable by magistrate court.
23A-4-3
(Rule 5(c)) Advice to defendant at initial appearance on charge requiring preliminary
hearing--Charges requiring preliminary hearing--Waiver or scheduling of hearing--Extension of time.
23A-4-4
Advice to defendant and admission to bail when initial appearance before another
magistrate--Initial appearance without warrant--Transmittal of files to appropriate
court.
23A-4-5
Transfer to magistrate judge or circuit court for preliminary hearing.
23A-4-6
(Rule 5.1(a)) Holding for trial when probable cause shown on preliminary hearing--Evidence received.
23A-4-7
(Rule 5.1(b)) Discharge and dismissal in absence of probable cause--Subsequent
prosecution on same offense.
23A-4-8
(Rule 5.1(c)) Record of proceedings on preliminary hearing--Cost--Transmittal of
papers to trial court--Limitation of access to record.
23A-4-1. Arrested person taken before magistrate--Complaint filed on arrest without warrant.
A law enforcement officer shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate. Any person, other than a law enforcement officer, making an arrest shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate or deliver him to the nearest available law enforcement officer. If a person arrested without a warrant is brought before a committing magistrate, a complaint shall be filed forthwith. Unless given a court appearance date and released from custody, a person, arrested with or without a warrant or given a summons, shall appear initially before a committing magistrate in person or via ITV, without unnecessary delay, at which time the committing magistrate shall proceed in accordance with the applicable provisions of §§ 23A-4-2 to 23A-4-5, inclusive.
Source: SDC 1939 & Supp 1960, §§ 34.1608, 34.1619, 34.1620; SDCL §§ 23-22-16, 23-22-20, 23-22-22; SL 1978, ch 178, § 36; SL 1989, ch 209; SL 1990, ch 174; SL 2018, ch 301 (Supreme Court Rule 18-10), eff. July 1, 2018.
23A-4-2. (Rule 5(b)) Procedure on minor offenses cognizable by magistrate court.
If the charge against a defendant is cognizable by a magistrate pursuant to § 16-12B-8, the magistrate shall proceed in accordance with that section.
Source: SL 1978, ch 178, § 37.
23A-4-3. (Rule 5(c)) Advice to defendant at initial appearance on charge requiring preliminary hearing--Charges requiring preliminary hearing--Waiver or scheduling of hearing--Extension of time.
If a charge against a defendant requires a preliminary hearing, the defendant may not be called on to plead. The committing magistrate shall inform the defendant of the complaint against the defendant and of any affidavit filed therewith, of the defendant's right to retain counsel and to request assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The committing magistrate shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The committing magistrate shall also inform the defendant of the defendant's right to a preliminary hearing. The committing magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail in the amount set pursuant to § 23A-2-4 or chapter 23A-43, or as otherwise provided by law. If the offense charged is a Class 1 misdemeanor, and the circuit in which the offense is charged has a magistrate court presided over by a magistrate judge, the defendant shall be held to answer before the magistrate judge or the circuit court.
No defendant is entitled to a preliminary hearing unless charged with an offense punishable as a felony. If the defendant waives the preliminary hearing, the committing magistrate shall forthwith hold the defendant to answer in circuit court if the offense charged is a felony. If the defendant does not waive the preliminary hearing, the committing magistrate shall schedule a preliminary hearing. The hearing shall be held within a reasonable time, but in any event not later than fifteen days following the initial appearance if the defendant is in custody, and not later than forty-five days if the defendant is not in custody. However, the preliminary hearing may not be held if the defendant is indicted before the date set for the preliminary hearing. With the consent of the defendant and with a showing of good cause, taking into account the public interest and the proper disposition of criminal cases, time limits specified in this section may be extended one or more times by the committing magistrate. In the absence of consent by the defendant, time limits may be extended by the committing magistrate only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.
Source: SDC 1939 & Supp 1960, § 34.1401; SDCL § 23-27-1; SL 1978, ch 178, § 38; SL 1991, ch 187, § 5; SL 2000, ch 263 (Supreme Court Rule 00-9); SL 2007, ch 304 (Supreme Court Amended Rule 06-72), eff. Nov. 1, 2006; SL 2013, ch 101, § 52.
23A-4-4. Advice to defendant and admission to bail when initial appearance before another magistrate--Initial appearance without warrant--Transmittal of files to appropriate court.
Subject to §§ 23A-17-1 to 23A-17-4, inclusive, if a defendant is taken before a committing magistrate who did not issue the warrant, or in case no warrant has been issued, the committing magistrate shall inform him of the matters set out in § 23A-4-3 and admit the defendant to bail as provided by § 23A-2-4 or chapter 23A-43. Within three days thereafter, the committing magistrate shall transmit the minutes of the proceedings and all papers in the case, including bail if posted, to the court which issued the warrant. If no warrant has been issued, the transcript and papers shall be transmitted to the court where the complaint is filed or to the court in which the venue of the offense lies.
Source: SDC 1939 & Supp 1960, §§ 34.1623, 34.1624; SDCL, §§ 23-22-27 to 23-22-30; SL 1978, ch 178, § 39.
23A-4-5. Transfer to magistrate judge or circuit court for preliminary hearing.
Either the defendant or the prosecuting attorney may, at any time prior to the commencement of a preliminary hearing before a lay magistrate, make a motion that the proceedings be transferred to a magistrate judge or to the circuit court. Upon such a motion the lay magistrate shall transmit a certified statement of all proceedings and papers connected with the action to the magistrate judge or the circuit court. Thereafter the action shall proceed as if it had been commenced therein before the magistrate judge or a circuit court judge. A preliminary hearing is commenced at the time the first witness is sworn.
Source: SL 1966, ch 118; SL 1976, ch 163, § 1; SDCL Supp, § 23-27-11; SL 1978, ch 178, § 40; SL 1989, ch 205.
23A-4-6. (Rule 5.1(a)) Holding for trial when probable cause shown on preliminary hearing--Evidence received.
If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the committing magistrate shall forthwith hold him to answer in the trial court of the county having jurisdiction of the offense. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. The rules of evidence shall apply, except that an objection to evidence on the ground that it was acquired by unlawful means is not properly made at the preliminary hearing. Motions to suppress such evidence must be made to the trial court as provided in §§ 23A-8-3 to 23A-8-9, inclusive.
Source: SDC 1939 & Supp 1960, §§ 34.1404, 34.1407; SDCL, §§ 23-27-9, 23-27-16; SL 1978, ch 178, § 41; SL 1979, ch 159, § 2.
23A-4-7. (Rule 5.1(b)) Discharge and dismissal in absence of probable cause--Subsequent prosecution on same offense.
If from the evidence it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the committing magistrate shall dismiss the complaint and discharge the defendant. The discharge of a defendant does not preclude a prosecuting attorney from instituting a subsequent prosecution for the same offense.
Source: SDC 1939 & Supp 1960, § 34.1406; SDCL, § 23-27-13; SL 1978, ch 178, § 42.
23A-4-8. (Rule 5.1(c)) Record of proceedings on preliminary hearing--Cost--Transmittal of papers to trial court--Limitation of access to record.
A verbatim record of the proceeding in each preliminary hearing shall be made under the direction of the committing magistrate upon request of either the prosecuting attorney or the defendant. A copy of the transcript of the record of the proceeding shall be furnished to the defendant and to the prosecuting attorney if either requests it. If a transcript is requested by the defendant and the committing magistrate finds that the defendant is indigent, its cost shall be borne by the county where the venue of the alleged offense was originally laid. In such case the committing magistrate shall follow the procedures set forth in chapter 23A-40. At the conclusion of the preliminary hearing the committing magistrate shall forthwith transmit to the clerk of the trial court having jurisdiction of the offense, all papers of the proceeding, any bail taken by him, and all exhibits received in the hearing. The circuit court may, for good cause shown, limit access to the record of the proceeding.
Source: SDC 1939, §§ 34.1405, 34.1409; SL 1957, ch 180; SDCL, §§ 23-27-12, 23-27-21; SL 1978, ch 178, § 43.
23A-5-1
(Rule 6(a)) Circuit court order for grand juries--Number of members--Summons of
jurors.
23A-5-2
New grand jury ordered after discharge of original jury--Other causes.
23A-5-3
(Rule 6(b)(1)) Grounds for challenge to array or individual jurors--Trial of challenge.
23A-5-4
Summons of new jurors after challenge--Oath of jurors chosen for particular case.
23A-5-5
(Rule 6(b)(2)) Dismissal of indictment because grand jurors not qualified.
23A-5-6
(Rule 6(c)) Foreman and deputy foreman of grand jury--Powers and duties--Clerk of
grand jury--Record of proceedings.
23A-5-7
Oath of grand jurors.
23A-5-8
Charge to grand jury by court--Commencement of inquiries.
23A-5-9
General powers of grand jury--Access to prisons and records.
23A-5-10
Advice sought from court or prosecuting attorney.
23A-5-11
(Rule 6(d)) Appearance by prosecuting attorneys before grand jury--Presence of other
persons--Counsel advising witnesses.
23A-5-11.1
Recording of testimony of witness before grand jury.
23A-5-12
Testimony before grand jury by subject of investigation--Waiver of immunity.
23A-5-13
Notice of rights to subject appearing before grand jury.
23A-5-14
Removal and replacement of attorney for witness appearing before grand jury.
23A-5-15
Evidence heard by grand jury--Order for production of evidence.
23A-5-16
(Rule 6(e)) Restrictions on disclosure of grand jury proceedings--Immunity of jurors--Sealing of indictments.
23A-5-17
Disclosure by prosecuting attorney of evidence received by grand jury.
23A-5-18
(Rule 6(f)) Quorum of grand jury--Votes required for indictment--Witnesses named
on indictment--Dismissal of charge on failure to indict.
23A-5-19
Report filed when indictment not issued.
23A-5-20
(Rule 6(g)) Term of service of grand jury--Excuse and replacement of jurors.
23A-5-1. (Rule 6(a)) Circuit court order for grand juries--Number of members--Summons of jurors.
The circuit court shall order one or more grand juries to be summoned only when it appears to the circuit judge's satisfaction that a grand jury is necessary or desirable for the investigation of public offenses or misconduct in office. A grand jury shall consist of not less than six nor more than ten members. The court shall direct that a sufficient number of legally qualified persons be summoned to meet this requirement.
Source: SDC 1939, § 34.1201; SL 1959, ch 233; SDCL, § 23-29-1; SL 1978, ch 178, § 44; SL 1979, ch 159, § 4; SL 1994, ch 176.
23A-5-2. New grand jury ordered after discharge of original jury--Other causes.
If a grand jury is discharged by an allowance of a challenge to the panel, or if an offense is committed during the sitting of the court after the discharge of a grand jury, or if after such discharge a new indictment becomes requisite by reason of an arrest of judgment or by the setting aside of an indictment, or if for any other good and sufficient cause another grand jury may become necessary, a court may in its discretion order that another grand jury be summoned, and the court may to that end make an order to summon another grand jury according to the provisions of chapter 16-13.
Source: CCrimP 1877, § 175; CL 1887, § 7202; RCCrimP 1903, § 174; RC 1919, § 4668; SDC 1939 & Supp 1960, § 34.1202; SDCL, § 23-29-15; SL 1978, ch 178, § 44.
23A-5-3. (Rule 6(b)(1)) Grounds for challenge to array or individual jurors--Trial of challenge.
Either the prosecuting attorney or a defendant may challenge the array of grand jurors on the ground that a grand jury was not selected, drawn or summoned in accordance with law and may challenge an individual grand juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the oath to the jurors and shall be tried by the circuit court.
Source: SDC 1939 & Supp 1960, §§ 34.1204, 34.1205; SDCL, §§ 23-29-2, 23-29-5; SL 1978, ch 178, § 46.
23A-5-4. Summons of new jurors after challenge--Oath of jurors chosen for particular case.
Whenever challenges to individual grand jurors are allowed, the court shall make an order to the sheriff, deputy sheriff, or coroner, to summon without delay, from the residents of the county, a sufficient number of persons to complete or to form a grand jury. A grand jury formed and impaneled as to and in a particular case, after a challenge or challenges to individual grand jurors have been allowed, shall be sworn to act only in such particular case, and as to all other cases at the same term of that grand jury, the grand jury shall be formed in the usual manner provided by law.
Source: SDC 1939 & Supp 1960, §§ 34.1203, 34.1209; SDCL, §§ 23-29-8, 23-29-16; SL 1978, ch 178, § 46.
23A-5-5. (Rule 6(b)(2)) Dismissal of indictment because grand jurors not qualified.
A motion to dismiss an indictment may be based on objections to the array or on the lack of legal qualifications of an individual juror, if not previously determined upon challenge. An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to § 23A-5-6 that five or more jurors, after deducting from the affirmative votes the number not legally qualified, concurred in finding the indictment.
Source: SL 1978, ch 178, § 47.
23A-5-6. (Rule 6(c)) Foreman and deputy foreman of grand jury--Powers and duties--Clerk of grand jury--Record of proceedings.
The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. During the absence of the foreman, the deputy foreman shall act as foreman and shall have the same powers and duties as the foreman.
The grand jury must appoint one of its members as clerk, who must preserve minutes of its proceedings and of the evidence given before it. The clerk shall keep a record of the number of the jurors concurring in the finding of every indictment, but not the votes of the individual members, and shall file the record with the clerk of the court, but the record shall not be made public except on the order of the court.
Source: SDC 1939 & Supp 1960, §§ 34.1210, 34.1213, 34.1224, 34.1233; SL 1967, ch 144; SDCL, §§ 23-29-9, 23-29-13, 23-30-9, 23-31-6; SL 1978, ch 178, § 48.
23A-5-7. Oath of grand jurors.
The following oath shall be administered to the foreperson of the grand jury: Do you, as foreperson of the grand jury, swear or affirm that you will diligently inquire into and make indictments of all public offenses against the state about which you have or can obtain evidence and which were committed or are triable in this county; that you will keep confidential the deliberations, remarks and actions of the jury, the testimony of the witnesses, and the manner in which any member of the jury voted on any matter; that you will not act against any person because of malice, hatred or ill-will or fail to act on a charge because of fear, favor, affection, or anticipation of reward; and that in all of your indictments you will present only the truth to the best of your skill, knowledge and understanding, so help you God? The following oath shall be immediately administered to the other grand jurors: Having heard the oath taken by the foreperson, do you, and each of you, swear or affirm that you will act in accordance with the obligations of that oath in your role as a member of the grand jury, so help you God?
Source: SDC 1939 & Supp 1960, §§ 34.1210, 34.1211; SDCL §§ 23-29-10, 23-29-11; SL 1978, ch 178, § 49; SL 2007, ch 131, § 3.
23A-5-8. Charge to grand jury by court--Commencement of inquiries.
After the grand jury is impaneled and sworn, it must be charged by the court. In doing so, the court shall give the members such information as it may deem proper as to the nature of their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. The grand jury must then retire to a private room and inquire into the offenses cognizable by it.
Source: SDC 1939 & Supp 1960, § 34.1212; SDCL, § 23-29-12; SL 1978, ch 178, § 50.
23A-5-9. General powers of grand jury--Access to prisons and records.
The grand jury has power, and it is its duty, to inquire into all public offenses committed or triable in its county, and to present them to the circuit court by indictment. A grand jury is entitled to free access at all reasonable times to public prisons, and to the examination, without charge, of all public records in its county.
Source: SDC 1939 & Supp 1960, §§ 34.1215, 34.1223; SDCL, §§ 23-30-1, 23-30-6; SL 1978, ch 178, § 45.
23A-5-10. Advice sought from court or prosecuting attorney.
The grand jury may at all reasonable times ask the advice of the court or of the prosecuting attorney.
Source: SDC 1939 & Supp 1960, § 34.1222; SDCL, § 23-30-7; SL 1972, ch 147, § 1; SL 1978, ch 178, § 51.
23A-5-11. (Rule 6(d)) Appearance by prosecuting attorneys before grand jury--Presence of other persons--Counsel advising witnesses.
Prosecuting attorneys may at all times appear before the grand jury for the purpose of giving information or advice or interrogating witnesses relative to any matter cognizable by it. Prosecuting attorneys, the witness under examination and his counsel, interpreters if needed, the victim under examination and the victim or witness assistant and, for the purpose of taking the evidence if authorized by the grand jury, a stenographer or operator of a recording device may be present when the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting. The role of counsel appearing with a witness shall be limited to advising the witness. The prosecuting attorney may not be present during the consideration of any charge against himself, except that the grand jury may summon him as a witness.
Source: SDC 1939 & Supp 1960, § 34.1222; SDCL, § 23-30-7; SL 1972, ch 147, § 1; SL 1978, ch 178, § 52; SL 1986, ch 193, § 2.
23A-5-11.1. Recording of testimony of witness before grand jury.
The testimony of any witness appearing before a grand jury in any case shall be recorded. Such testimony may be recorded by means of an electronic recording device.
Source: SL 1987, ch 173; SL 1998, ch 147, § 1.
23A-5-12. Testimony before grand jury by subject of investigation--Waiver of immunity.
The subject of a grand jury investigation may, at the discretion of the grand jury or prosecuting attorney, be given the opportunity to testify before the grand jury, provided he waives immunity orally on the record or in writing.
Source: SL 1978, ch 178, § 53.
23A-5-13. Notice of rights to subject appearing before grand jury.
Before testifying or providing other evidence at any proceeding before a grand jury impaneled before a circuit court, the subject of the grand jury investigation shall be given adequate and reasonable notice of:
(1) His right to counsel as provided in § 23A-5-11;
(2) His privilege against self-incrimination;
(3) The fact that anything he says can and will be used against him in a court of law; and
(4) The fact that if he cannot afford an attorney, an attorney will be appointed by the court for him.
Source: SL 1978, ch 178, § 60.
23A-5-14. Removal and replacement of attorney for witness appearing before grand jury.
The court shall have the power to remove a witness' attorney and order the witness to obtain new counsel, when it finds that the attorney has violated § 23A-5-11 or that such removal and replacement is necessary to ensure that the activities of a grand jury are not unduly delayed or impeded. Nothing in this section shall affect the power of the court to punish for contempt or impose other appropriate sanctions.
Source: SL 1978, ch 178, § 59.
23A-5-15. Evidence heard by grand jury--Order for production of evidence.
The rules of evidence shall apply to proceedings before the grand jury. A grand jury is not bound to hear evidence for a defendant, but it is its duty to weigh all the evidence submitted to it. When it has reason to believe that there is other evidence, it may order such evidence to be produced, and for that purpose the prosecuting attorney may issue process for the witnesses.
Source: SDC 1939 & Supp 1960, § 34.1225; SDCL, § 23-30-12; SL 1978, ch 178, § 55.
23A-5-16. (Rule 6(e)) Restrictions on disclosure of grand jury proceedings--Immunity of jurors--Sealing of indictments.
Disclosure of matters occurring before a grand jury, other than its deliberations and the vote of any juror, may be made to prosecuting attorneys for use in the performance of their duties. Otherwise a juror, attorney, witness, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only if directed by the court preliminary to, or in connection with, a judicial proceeding or if permitted by the court at the request of a defendant upon a showing that grounds may exist for a motion to dismiss an indictment because of matters occurring before a grand jury. A grand juror cannot be questioned for anything that the grand juror may say or any vote that the grand juror may give in the grand jury proceedings relative to a matter legally pending before it, except for perjury of which the grand juror may have been guilty in making an accusation or giving testimony to his or her fellow jurors. No obligation of secrecy may be imposed upon any person except in accordance with this section. A court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail. In that event the clerk shall seal the indictment, and no person may disclose the finding of the indictment unless necessary for the issuance and execution of a warrant or summons.
Source: SDC 1939 & Supp 1960, §§ 34.1226, 34.1227; SDCL, §§ 23-30-13, 23-30-14, 23-30-16; SL 1972, ch 147, § 2; SL 1978, ch 178, § 54; SL 2005, ch 126, § 1.
23A-5-17. Disclosure by prosecuting attorney of evidence received by grand jury.
The prosecuting attorney may disclose evidence received before the grand jury or heard before the grand jury in the performance of his official duties.
Source: SL 1978, ch 178, § 54A.
23A-5-18. (Rule 6(f)) Quorum of grand jury--Votes required for indictment--Witnesses named on indictment--Dismissal of charge on failure to indict.
A quorum of six grand jurors must be present before any evidence or testimony may be received or any other business conducted. An indictment may be found only if there is probable cause to believe that an offense has been committed and that the defendant committed it. An indictment may be found only upon the concurrence of six or more jurors. The names of only those witnesses examined before the grand jury in relation to the particular indictment shall be listed on that indictment before it is filed with the court. An indictment shall be returned by the grand jury to a circuit judge in open court, or, if no circuit judge is available, filed with the clerk of courts, endorsed a true bill.
If six grand jurors do not concur in finding an indictment against a defendant who is in custody but who has not had a preliminary hearing, the complaint or information and the certified record of the proceedings before the committing magistrate transmitted to them shall be returned to the court, with an endorsement thereon, signed by the foreman, that the charge is dismissed. The dismissal of the charge does not prevent its being again submitted to a grand jury as often as a court may direct, but without such direction it cannot again be submitted.
Source: SDC 1939 & Supp 1960, §§ 34.1219, 34.1220, 34.1233, 34.1234; SDCL, §§ 23-31-3 to 23-31-8; SL 1978, ch 178, § 56; SL 2001, ch 120, § 1.
23A-5-19. Report filed when indictment not issued.
The grand jury, with the permission of the prosecuting attorney, may file a report as to any case in which an investigation has taken place and an indictment has not been issued. The court may excise any portion of the report that is filed in the interests of justice.
Source: SL 1978, ch 178, § 60A.
23A-5-20. (Rule 6(g)) Term of service of grand jury--Excuse and replacement of jurors.
A grand jury shall serve until discharged by the court which convened it, but no grand jury may serve more than eighteen months. The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the excused juror in the same manner as the original juror was impaneled.
Source: SDC 1939 & Supp 1960, § 34.1214; SDCL, § 23-29-14; SL 1978, ch 178, § 57.
CHAPTER 23A-6
INDICTMENT AND INFORMATION
23A-6-1 Indictment or information required for prosecution of offense--Exceptions.
23A-6-2 (Rule 7(b)) Reserved.
23A-6-3 Preliminary hearing required for filing felony information--Exceptions.
23A-6-4 (Rule 7(c)(1)) Allegations contained in indictment or information--Incorporation by reference--Citation of law--Error in citation.
23A-6-5 (Rule 7(c)(2)) Reserved.
23A-6-6 Additional allegations not required against accessory before fact.
23A-6-7 Contents required for sufficiency of indictment or information.
23A-6-8 Presumptions need not be stated--Judicial notice.
23A-6-9 Precise time of offense need not be stated.
23A-6-10 Endorsement of witnesses on information--Calling other witnesses.
23A-6-11 Allegation as to money or securities stolen.
23A-6-12 Description of money taken by robbery or theft.
23A-6-13 Allegations in indictment or information for perjury.
23A-6-14 (Rule 7(c)(3)) Sufficiency of indictment or information despite nonprejudicial defect.
23A-6-15 Erroneous allegation as to victim of offense.
23A-6-16 Unavailability of instrument on indictment or information for forgery.
23A-6-17 Statutory words not required in indictment or information--Interpretation of words and phrases.
23A-6-18 (Rule 7(d)) Surplusage stricken on motion.
23A-6-19 (Rule 7(e)) Amendment of information before trial--Allegation of new offense--Amendment during trial.
23A-6-20 Amendment to correct name of defendant.
23A-6-21 (Rule 7(f)) Reserved.
23A-6-22 Suppression of names and details in rape, incest, or sexual contact prosecution.
23A-6-22.1 Suppression of name of minor victim of rape, incest, or sexual contact and details of alleged acts.
23A-6-23 (Rule 8(a)) Joinder of related offenses in same indictment or information.
23A-6-24 (Rule 8(b)) Joinder of two or more defendants in same indictment or information.
23A-6-25 Election between offenses or counts not required--Separate statements in verdict.
23A-6-26 (Rule 9(a)) Warrant or summons on indictment--Delivery for execution--Warrant on defendant's failure to respond to summons.
23A-6-27 (Rule 9(b)(1)) Form of warrant--Contents--Endorsement as to bail.
23A-6-28 (Rule 9(b)(2)) Form and contents of summons--Time of required appearance--Signature.
23A-6-29 (Rule 9(c)(1)) Execution or service of warrant or summons--Arrested person brought before court.
23A-6-29.1 Powers granted magistrate judge.
23A-6-30 (Rule 9(c)(2)) Return of warrant or summons to court--Cancellation or delivery to another of unexecuted warrant or summons.
23A-6-31 (Rule 9(d)) Reserved.
23A-6-1. Indictment or information required for prosecution of offense--Exceptions.
Every public offense must be prosecuted by an indictment or by an information signed by a prosecuting attorney except:
(1) A proceeding for the removal of a civil officer of this state;
(2) An offense arising under the laws, rules, and regulations relating to the National Guard;
(3) An offense arising under the laws of this state which is a Class 2 misdemeanor or petty offense or which is punishable by a fine not exceeding two hundred dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment;
(4) An offense arising from the violation of an ordinance or bylaw of a unit of local government of this state.
Source: SDC 1939 & Supp 1960, § 34.2904; SDCL, § 23-2-5; SL 1978, ch 178, § 61; SL 1991, ch 187, § 6.
23A-6-3. Preliminary hearing required for filing felony information--Exceptions.
An information may be filed without a preliminary hearing against a fugitive from justice. No other information may be filed against any person for any felony until that person has had a preliminary hearing, unless that person waived his or her right to a preliminary hearing. All informations shall be filed with the court having jurisdiction of the offense by the prosecuting attorney prior to arraignment.
Source: SDC 1939 & Supp 1960, § 34.1503; SDCL §§ 23-20-2, 23-20-3; SL 1978, ch 178, § 63; SL 2014, ch 114, § 1.
23A-6-4. (Rule 7(c)(1)) Allegations contained in indictment or information--Incorporation by reference--Citation of law--Error in citation.
The indictment or the information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. The information must be signed by the prosecuting attorney to be valid. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.
Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown, but, if it is alleged that he committed it by more than one specified means, each means shall be stated in a separate count.
The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
Source: Supreme Court Rule 365, 1939; SDC 1939 & Supp 1960, § 34.3008; SDCL, § 23-32-5; SL 1978, ch 178, § 64.
23A-6-6. Additional allegations not required against accessory before fact.
No additional facts need be alleged in an indictment or information against an accessory before the fact than are required in an indictment against his principal.
Source: SDC 1939 & Supp 1960, § 34.0504; SDCL, § 23-10-4; SL 1978, ch 178, § 66.
23A-6-7. Contents required for sufficiency of indictment or information.
An indictment or information is sufficient if it can be understood therefrom:
(1) That it is entitled in a court having authority to receive it, although the name of the court is not stated;
(2) That the indictment was found by a grand jury of the county in which the public offense was committed;
(3) That the defendant is named or, if his name is unknown, that he is described by a fictitious name with a statement that his true name is unknown to the grand jury or prosecuting attorney;
(4) That the offense charged was committed within the jurisdiction of the county; and
(5) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.
Source: CCrimP 1877, § 222; CL 1887, § 7249; RCCrimP 1903, § 229; SL 1913, ch 242; RC 1919, § 4725; Supreme Court Rule 367, 1939; SDC 1939 & Supp 1960, § 34.3010; SDCL, § 23-32-12; SL 1978, ch 178, § 67.
23A-6-8. Presumptions need not be stated--Judicial notice.
Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.
Source: SDC 1939 & Supp 1960, § 34.3004; SDCL, § 23-32-21; SL 1978, ch 178, § 72.
23A-6-9. Precise time of offense need not be stated.
The precise time at which an offense was committed need not be stated in an indictment or information, but it may be alleged to have been committed at any time before the filing thereof, except when the time is a material element of the offense.
Source: Supreme Court Rule 368, 1939; SDC 1939 & Supp 1960, § 34.3011; SDCL, § 23-32-17; SL 1978, ch 178, § 71.
23A-6-10. Endorsement of witnesses on information--Calling other witnesses.
The prosecuting attorney shall endorse upon each information the names of the witnesses known to him at the time of its filing. Any further endorsement of names upon the information shall be done only with permission of the court. This section shall not preclude calling any witnesses whose names or the materiality of whose testimony is first learned by the prosecuting attorney during the trial. This section does not require the endorsement of names of witnesses which are to be used only in rebuttal.
Source: SL 1978, ch 178, § 64.
23A-6-11. Allegation as to money or securities stolen.
In an indictment or information for the theft of money, bank notes, certificates of stock, or securities, or for a conspiracy to commit the theft of any such property, it is sufficient to allege the theft, or the conspiracy to commit theft, to be of money, bank notes, certificates of stock, or securities, without specifying the coin, number, denomination, or kind thereof.
Source: Supreme Court Rule 374, 1939; SDC 1939 & Supp 1960, § 34.3017; SDCL, § 23-32-15; SL 1978, ch 178, § 68.
23A-6-12. Description of money taken by robbery or theft.
In a prosecution for robbery or theft of money, it is sufficient to allege generally in the indictment or information a robbery or theft of money, and it is sufficient to maintain the charge in the indictment or information that money was obtained by robbery or theft without regard to a particular description of the money stolen or obtained.
Source: Supreme Court Rule 373, 1939; SDC 1939 & Supp 1960, § 34.3016; SDCL, § 23-32-16; SL 1978, ch 178, § 69.
23A-6-13. Allegations in indictment or information for perjury.
In an indictment or information for perjury or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in which the offense was committed, the court or person before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment or information need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.
Source: CCrimP 1877, § 229; CL 1887, § 7256; RCCrimP 1903, § 236; RC 1919, § 4732; Supreme Court Rule 376, 1939; SDC 1939 & Supp 1960, § 34.3019; SDCL, § 23-32-25; SL 1978, ch 178, § 70.
23A-6-14. (Rule 7(c)(3)) Sufficiency of indictment or information despite nonprejudicial defect.
No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of a defect or imperfection in its form, which does not prejudice the substantial rights of the defendant.
Source: SDC 1939 & Supp 1960, § 34.3002; SDCL, § 23-32-20; SL 1978, ch 178, § 73.
23A-6-15. Erroneous allegation as to victim of offense.
When an offense involves the commission of, or an attempt to commit, a theft or other private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured, or the ownership of the property taken, is not material.
Source: Supreme Court Rule 370, 1939; SDC 1939 & Supp 1960, § 34.3013; SDCL, § 23-32-14; SL 1978, ch 178, § 74.
23A-6-16. Unavailability of instrument on indictment or information for forgery.
When an instrument, which is the subject of an indictment or information for forgery, has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment or information and established during the trial, any misdescription of the instrument is immaterial.
Source: Supreme Court Rule 375, 1939; SDC 1939 & Supp 1960, § 34.3018; SDCL, § 23-32-24; SL 1978, ch 178, § 75.
23A-6-17. Statutory words not required in indictment or information--Interpretation of words and phrases.
Words used in a statute to describe a public offense need not be strictly recited in an indictment or information, but other words conveying the same meaning may be used. Words used in an indictment or information shall be interpreted according to their usual meaning in common language, except words and phrases defined by law, which shall be interpreted according to their legal meaning.
Source: SDC 1939 & Supp 1960, §§ 34.3003, 34.3005; SDCL, §§ 23-32-18, 23-32-19; SL 1978, ch 178, § 76.
23A-6-18. (Rule 7(d)) Surplusage stricken on motion.
A circuit court upon motion may strike surplusage from an indictment or information.
Source: SL 1978, ch 178, § 77.
23A-6-19. (Rule 7(e)) Amendment of information before trial--Allegation of new offense--Amendment during trial.
If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.
After commencement of a trial, the trial court may permit the prosecuting attorney to amend the information at any time before a verdict or finding is made, if no additional or different offense is charged and substantial rights of the defendant are not thereby prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.
Source: Supreme Court Rule 397, 1939; SDC 1939 & Supp 1960, § 34.3628; SDCL, § 23-39-1; SL 1978, ch 178, § 78.
23A-6-20. Amendment to correct name of defendant.
When a defendant is prosecuted by a fictitious name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, with reference to the fact that he was prosecuted by the name mentioned in the indictment, information, or complaint. When a defendant is prosecuted by an erroneous name, and in any stage of the proceedings his correct name is discovered, it must be inserted in the subsequent proceedings without reference to the fact that he was prosecuted by any other name.
Source: Supreme Court Rule 369, 1939; SDC 1939 & Supp 1960, § 34.3012; SDCL, § 23-32-13; SL 1978, ch 178, § 78.
23A-6-22. Suppression of names and details in rape, incest, or sexual contact prosecution.
Upon the request of the victim in a prosecution for rape, incest, or sexual contact, the court shall order that the names of the victim or the accused or the details of the alleged offense be suppressed until:
(1) The accused is arraigned;
(2) The charge is dismissed; or
(3) The case is otherwise concluded;
whichever occurs first.
Source: SL 1975, ch 169, § 4; SDCL Supp, § 23-32-28; SL 1978, ch 178, § 81; SL 1983, ch 182; SL 1996, ch 154.
23A-6-22.1. Suppression of name of minor victim of rape, incest, or sexual contact and details of alleged acts.
Notwithstanding the provisions of § 23A-6-22, upon the request of any minor victim or the minor victim's parent or guardian in a prosecution for rape, incest, or sexual contact, the court shall order that the name of the minor and the specific details of the alleged acts be suppressed if the trial court finds a compelling interest after consideration of the following factors: the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of the parents and relatives.
Source: SL 1995, ch 131; SL 2011, ch 124, § 1.
23A-6-23. (Rule 8(a)) Joinder of related offenses in same indictment or information.
Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Source: Supreme Court Rule 366, 1939; SDC 1939 & Supp 1960, § 34.3009; SDCL, § 23-32-6; SL 1978, ch 178, § 82.
23A-6-24. (Rule 8(b)) Joinder of two or more defendants in same indictment or information.
Two or more defendants may be charged in the same indictment or information, if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.
Source: SL 1978, ch 178, § 83.
23A-6-25. Election between offenses or counts not required--Separate statements in verdict.
The prosecuting attorney shall not be required to elect between different offenses or counts set forth in an indictment or information, but a defendant may be convicted of any number of offenses charged, and each offense upon which a defendant is convicted must be stated in the verdict.
Source: Supreme Court Rule 366, 1939; SDC 1939 & Supp 1960, § 34.3009; SDCL, § 23-32-7; SL 1978, ch 178, § 84.
23A-6-26. (Rule 9(a)) Warrant or summons on indictment--Delivery for execution--Warrant on defendant's failure to respond to summons.
Upon request of a prosecuting attorney, a circuit court judge, in the case of a felony, and a magistrate judge, in the case of a misdemeanor or at the direction of the presiding judge of the circuit in the case of a felony, may issue a warrant for each defendant named in an indictment. A circuit court judge, or magistrate judge in an appropriate case, may issue a summons instead of a warrant upon the request of a prosecuting attorney. Upon like request or direction a court may issue more than one warrant or summons for the same defendant. The warrant or summons shall be delivered to a law enforcement officer or other person authorized by law to execute or serve it. If a defendant fails to appear in response to a summons, a warrant shall be issued.
Source: SDC 1939 & Supp 1960, § 34.1235; SDCL, § 23-31-9; SL 1978, ch 178, § 85; SL 1999, ch 121, § 2.
23A-6-27. (Rule 9(b)(1)) Form of warrant--Contents--Endorsement as to bail.
A warrant shall be in the form prescribed by § 23A-2-4. It shall describe the offense charged in the indictment, and it shall command that the defendant be arrested and brought before the court. The amount of bail, if any, shall be fixed by the court and endorsed on the warrant.
Source: SL 1978, ch 178, § 86; SL 1999, ch 121, § 3.
23A-6-28. (Rule 9(b)(2)) Form and contents of summons--Time of required appearance--Signature.
A summons shall be in the same form as a warrant except that it shall summon the defendant to appear before a circuit court judge or magistrate judge, as the case may be, at a stated time and place. The time stated may not be more than ten days from the date the indictment was presented to the court. The summons shall be signed by the judge.
Source: SL 1978, ch 178, § 87; SL 1999, ch 121, § 4.
23A-6-29. (Rule 9(c)(1)) Execution or service of warrant or summons--Arrested person brought before court.
A warrant shall be executed or a summons served as provided in §§ 23A-2-7 to 23A-2-11, inclusive. The officer executing a warrant shall bring the arrested person promptly before the court for the purpose of admission to bail.
Source: SDC 1939 & Supp 1960, § 34.1231; SDCL, § 23-31-15; SL 1978, ch 178, § 88.
23A-6-29.1. Powers granted magistrate judge.
If directed to do so by the presiding judge of the circuit, a magistrate judge may set bail and take not guilty pleas in felony cases.
Source: SL 1999, ch 121, § 1.
23A-6-30. (Rule 9(c)(2)) Return of warrant or summons to court--Cancellation or delivery to another of unexecuted warrant or summons.
A law enforcement officer executing a warrant shall make return thereof to the court. At the request of a prosecuting attorney any unexecuted warrant may be returned and canceled by the court. On or before the return day the person to whom a summons was delivered for service shall make a return thereof. At the request of a prosecuting attorney made at any time while an indictment is pending, a warrant returned unexecuted and not canceled or a summons returned unserved, or a duplicate thereof, may be delivered to a law enforcement officer or other person for execution or service.
Source: SL 1978, ch 178, § 89; SL 1999, ch 121, § 5.
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.
23A-8-1
(Rule 12(a)) Pleadings enumerated--Motions replacing previous forms of pleadings.
23A-8-2
Grounds for dismissal of indictment or information on motion.
23A-8-3
(Rule 12(b)) Defenses and objections raised by motion--Issues that must be raised before
trial.
23A-8-4
(Rule 12(c)) Setting time for making and hearing motions.
23A-8-5
Subsequent hearing on motion to suppress newly discovered evidence.
23A-8-6
(Rule 12(d)(1)) Notice to defendant of prosecutor's intention to use specified evidence.
23A-8-7
(Rule 12(d)(2)) Reserved.
23A-8-8
(Rule 12(e)) Determination of motions before trial--Deferment to trial--Findings as to fact.
23A-8-9
(Rule 12(f)) Waiver of defenses or objections by failure to raise before trial--Relief from
waiver.
23A-8-10
(Rule 12(g)) Record of hearing on motions.
23A-8-11
(Rule 12(h)) Continuation in custody or on bail after grant of defendant's motion--Subsequent prosecution for same offense--Limitation statutes.
23A-8-1. (Rule 12(a)) Pleadings enumerated--Motions replacing previous forms of pleadings.
Except for those offenses triable under § 23A-4-2, pleadings in criminal proceedings are the complaint, the indictment, and the information. The pleas are not guilty, not guilty and not guilty by reason of insanity, guilty but mentally ill, guilty, and nolo contendere. All other pleas and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by a motion to dismiss or to grant appropriate relief as provided in this title.
Source: SDC 1939 & Supp 1960, § 34.3006; SDCL, § 23-32-3; SL 1978, ch 178, § 107; SL 1983, ch 174, § 7.
23A-8-2. Grounds for dismissal of indictment or information on motion.
Upon motion of a defendant made pursuant to subdivision 23A-8-3(1), (2), or (3), the court must dismiss an indictment or information in any of the following cases:
(1) When it is not found, endorsed, and presented or filed as prescribed by this title;
(2) When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;
(3) When it does not substantially conform to the requirements of this title;
(4) When more than one offense is charged in a single count;
(5) When it does not describe a public offense;
(6) When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;
(7) When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged;
(8) When a person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in § 23A-5-11; or
(9) When a defendant charged by information did not have or waive a preliminary hearing before the information was filed.
Source: Supreme Court Rule 382, 385, 1939; SDC 1939 & Supp 1960, §§ 34.3509, 34.3514; SDCL, §§ 23-36-1, 23-36-8; SL 1978, ch 178, § 107-A; SL 1979, ch 159, § 46.
23A-8-3. (Rule 12(b)) Defenses and objections raised by motion--Issues that must be raised before trial.
Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution;
(2) Defenses and objections based upon prior conviction or acquittal;
(3) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings);
(4) Motions to suppress evidence;
(5) Requests for discovery under chapter 23A-13; or
(6) Requests for a severance of charges or defendants under § 23A-11-2.
Source: SL 1978, ch 178, § 108.
23A-8-4. (Rule 12(c)) Setting time for making and hearing motions.
A court may at the time of an arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.
Source: SL 1978, ch 178, § 109.
23A-8-5. Subsequent hearing on motion to suppress newly discovered evidence.
A court may set a subsequent hearing after the hearing set pursuant to § 23A-8-4 for the purpose of hearing motions to suppress newly discovered evidence.
Source: SL 1978, ch 178, § 112.
23A-8-6. (Rule 12(d)(1)) Notice to defendant of prosecutor's intention to use specified evidence.
At an arraignment, or as soon thereafter as is practical, the prosecuting attorney may give notice to the defendant of his intention to use specified evidence at the trial, in order to afford the defendant an opportunity to raise objections to such evidence prior to the trial in accordance with subdivision § 23A-8-3(4).
Source: SL 1978, ch 178, § 110; SL 1979, ch 159, § 47.
23A-8-8. (Rule 12(e)) Determination of motions before trial--Deferment to trial--Findings as to fact.
A motion made before a trial shall be determined before the trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after the verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
Source: SL 1978, ch 178, § 113.
23A-8-9. (Rule 12(f)) Waiver of defenses or objections by failure to raise before trial--Relief from waiver.
Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by a court pursuant to § 23A-8-4, or prior to any extension thereof made by the court, shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver.
Source: Supreme Court Rule 382, 1939; SDC 1939 & Supp 1960, § 34.3509; SDCL, § 23-36-2; SL 1978, ch 163; SL 1978, ch 178, § 114.
23A-8-10. (Rule 12(g)) Record of hearing on motions.
A verbatim record shall be made of all proceedings at the hearing, including any findings of fact and conclusions of law which are made orally.
Source: SL 1978, ch 178, § 115.
23A-8-11. (Rule 12(h)) Continuation in custody or on bail after grant of defendant's motion--Subsequent prosecution for same offense--Limitation statutes.
If a court grants a motion based on a defect in the institution of the prosecution or in the indictment or information, it may also order that the defendant be continued in custody or that his bail be continued for a specified time pending the filing of a new indictment or information. An order setting aside an indictment or information pursuant to this section is no bar to a further prosecution for the same offense. Nothing in this section shall be deemed to affect the provisions of any statute relating to periods of limitations.
Source: SDC 1939 & Supp 1960, §§ 34.3512, 34.3513; SDCL, §§ 23-36-6, 23-36-7; SL 1978, ch 178, § 116.
23A-9-1
(Rule 12.1(a)) Time of notice to prosecutor of alibi defense--Contents.
23A-9-2
(Rule 12.1(b)) Notice to defendant of rebuttal witnesses on alibi defense.
23A-9-3
(Rule 12.1(c)) Notice to adverse party of newly discovered witness on alibi.
23A-9-4
(Rule 12.1(d)) Exclusion of testimony of undisclosed alibi witness--Defendant's right to
testify.
23A-9-5
(Rule 12.1(e)) Exception granted to notice requirements.
23A-9-6
(Rule 12.1(f)) Evidence of alibi notice inadmissible after withdrawal.
23A-9-1. (Rule 12.1(a)) Time of notice to prosecutor of alibi defense--Contents.
Within the time specified in § 23A-8-4 for pretrial motions, upon written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, a defendant shall serve within ten days, or at such different time as the court may direct, upon the prosecuting attorney a written notice of his intention to offer a defense of alibi. The notice shall state the specific place or places where the defendant claims he was at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
Source: Supreme Court Rule 362, 1939; SDC 1939 & Supp 1960, § 34.2801; SDCL, § 23-37-5; SL 1974, ch 168, § 1; SL 1978, ch 178, § 117.
23A-9-2. (Rule 12.1(b)) Notice to defendant of rebuttal witnesses on alibi defense.
Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
Source: SDCL, § 23-37-6 as enacted by SL 1974, ch 168, § 2; SDCL Supp, § 23-37-5.1; SL 1978, ch 178, § 118.
23A-9-3. (Rule 12.1(c)) Notice to adverse party of newly discovered witness on alibi.
If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under § 23A-9-1 or 23A-9-2, he shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
Source: SL 1978, ch 178, § 119.
23A-9-4. (Rule 12.1(d)) Exclusion of testimony of undisclosed alibi witness--Defendant's right to testify.
Upon the failure of either party to comply with the requirements of § 23A-9-1, 23A-9-2, or 23A-9-3, the court shall exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at, the scene of the alleged offense. This section shall not limit the right of a defendant to testify in his own behalf.
Source: Supreme Court Rule 362, 1939; SDC 1939 & Supp 1960, § 34.2801; SDCL, § 23-37-6; SL 1974, ch 168, § 1; SDCL Supp, § 23-37-5; SL 1978, ch 178, § 120; SL 1979, ch 159, § 8.
23A-9-5. (Rule 12.1(e)) Exception granted to notice requirements.
For good cause shown, a court may grant an exception to any of the requirements of §§ 23A-9-1 to 23A-9-4, inclusive.
Source: SL 1978, ch 178, § 121.
23A-9-6. (Rule 12.1(f)) Evidence of alibi notice inadmissible after withdrawal.
Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.
Source: SL 1978, ch 178, § 122.
23A-10-1
(Rule 12.2(a))Reserved.
23A-10-2
Form of plea raising defense.
23A-10-3
(Rule 12.2(b)) Notice to prosecutor of intention to use expert testimony relating to mental
condition--Additional time allowed.
23A-10-4
(Rule 12.2(c)) Order to defendant to submit to psychiatric examination--Court
appointment of experts--Statements by accused privileged.
23A-10-5
(Rule 12.2(d)) Exclusion of testimony on failure to give notice or submit to examination.
23A-10-6
Mistrial when defense raised without pleading--Subsequent trial.
23A-10-7
Independent psychiatric examination--Court approval--Notice--Cost.
23A-10-2. Form of plea raising defense.
A defendant in a criminal case raising the defense of insanity shall, at his arraignment, specially plead "not guilty and not guilty by reason of insanity."
Source: SL 1953, ch 201, § 1; SDC Supp 1960, § 34.20A01; SDCL, § 23-37-1; SL 1978, ch 178, § 124; SL 1983, ch 174, § 8.
23A-10-3. (Rule 12.2(b)) Notice to prosecutor of intention to use expert testimony relating to mental condition--Additional time allowed.
If a defendant intends to introduce expert testimony relating to mental illness or insanity relevant to the issue of whether he had the mental state required for the offense charged, he shall, not less than thirty days prior to the date set for trial or at any later time as the court may direct, notify the prosecuting attorney in writing of his intention and file a copy of the notice with the clerk of the court. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make any other order as is appropriate.
Source: SL 1978, ch 178, § 125; SL 1983, ch 174, § 9.
23A-10-4. (Rule 12.2(c)) Order to defendant to submit to psychiatric examination--Court appointment of experts--Statements by accused privileged.
In an appropriate case a court shall, upon motion of a prosecuting attorney, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose by the prosecuting attorney in an order of the court. The court may also appoint medical experts and require that the defendant submit himself for examination by such court-appointed medical experts. No statement made by an accused in the course of any examination provided for by this section, whether the examination was with or without the consent of the accused, shall be admitted in evidence against him on the issue of guilt in any criminal proceeding except for the purpose of impeaching the defendant.
Source: SL 1953, ch 201, § 1; SDC Supp 1960, § 34.20A01; SDCL, § 23-37-2; SL 1978, ch 178, § 126; SL 1979, ch 159, § 9.
23A-10-5. (Rule 12.2(d)) Exclusion of testimony on failure to give notice or submit to examination.
If the defendant fails to give notice when required by § 23A-10-3 or to submit to an examination when ordered under § 23A-10-4, a court shall exclude the testimony of any witness offered by a defendant on the issue of his mental state.
Source: SL 1978, ch 178, § 127; SL 1983, ch 174, § 11.
23A-10-6. Mistrial when defense raised without pleading--Subsequent trial.
If, during the trial of a criminal case, where the plea of "not guilty and not guilty by reason of insanity" has not been made, a court deems that a substantial suggestion of a defendant's sanity was raised as a defense, the defendant shall be deemed to have consented to a mistrial. Former jeopardy may not attach on a subsequent trial of the same case. In those circumstances, a second trial shall be had as soon as is practical and without regard for regular terms of court and the court shall, in advance of the second trial, require the defendant to submit himself for examination as prescribed by § 23A-10-4.
Source: SL 1953, ch 201, § 3; SDC Supp 1960, § 34.20A03; SDCL, § 23-37-4; SL 1978, ch 178, § 128; SL 1983, ch 174, § 12.
23A-10-7. Independent psychiatric examination--Court approval--Notice--Cost.
Subject to court approval, the defendant may be examined at an approved community health center by a psychiatrist of his own choosing at his own expense or, if indigent, at county expense. Examination of the defendant shall be on the issue of his insanity when the offense occurred. Notice of the independent examination shall be given to the prosecuting attorney at least five days before the examination date. A psychiatrist who examines an indigent defendant may receive a reasonable fee.
Source: SL 1983, ch 174, § 10.
CHAPTER 23A-10A
INQUIRY INTO DEFENDANT'S MENTAL COMPETENCY TO PROCEED
23A-10A-1 Definition of mental incompetency.
23A-10A-2 Incompetent person cannot be tried, sentenced or punished.
23A-10A-3 Hearing on mental condition--Mental examination and report.
23A-10A-4 Commitment--Finding required--Duration.
23A-10A-4.1 Recovery of defendant--Certificate--Discharge pending hearing--Notice--Hearing.
23A-10A-4.2 Findings as to mental competence not prejudicing insanity defense--Inadmissible.
23A-10A-5 Suspension of proceedings pending determination of defendant's competency.
23A-10A-6 Rules governing competency proceedings.
23A-10A-6.1 Burden and standard of proof.
23A-10A-7 23A-10A-7 to 23A-10A-9. Repealed by SL 1985, ch 192, §§ 42 to 44.
23A-10A-10 Expense of maintenance of defendant committed.
23A-10A-11 23A-10A-11, 23A-10A-12. Repealed by SL 1985, ch 192, §§ 45, 46.
23A-10A-13 Approved facility defined.
23A-10A-13.1 Restoration to competency program defined.
23A-10A-14 Facility's report--Length of commitment determined--Review after one year--Dismissal on court finding.
23A-10A-15 Length of detention for Class A, B, or C felony.
23A-10A-16 Time in approved facility credited to term of imprisonment.
23A-10A-17 Repealed.
23A-10A-1. Definition of mental incompetency.
The term, "mentally incompetent to proceed," as used in this chapter, means the condition of a person who is suffering from a mental disease, developmental disability, as defined in § 27B-1-18, or psychological, physiological, or etiological condition rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
Source: SL 1978, ch 175, § 2; SDCL Supp, § 23-38-1.1; SL 1985, ch 192, § 47; SL 1991, ch 199, § 1.
23A-10A-2. Incompetent person cannot be tried, sentenced or punished.
A person cannot be tried, sentenced, or punished for any public offense while he is mentally incompetent to proceed.
Source: CCrimP 1877, § 514; CL 1887, § 7564; RCCrimP 1903, § 543; RC 1919, § 4793; SDC 1939 & Supp 1960, § 34.2001; SDCL, § 23-38-1; SL 1978, ch 175, § 1.
23A-10A-3. Hearing on mental condition--Mental examination and report.
At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the prosecuting attorney may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or developmental disability, or other conditions set forth in § 23A-10A-1, rendering the defendant mentally incompetent to the extent that the defendant is unable to understand the nature and consequences of the proceeding against the defendant or to assist properly in the defendant's defense. 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 the provisions of §§ 23A-46-1 and 23A-46-2. The examination shall be completed within twenty-one days of the court order, unless for good cause the court grants a continuance. The hearing shall be conducted pursuant to the provisions of § 23A-46-3.
Source: SL 1978, ch 175, § 4; SDCL Supp, § 23-38-2.1; SL 1985, ch 192, § 38; SL 1991, ch 199, § 4; SL 2017, ch 109, § 16.
23A-10A-4. Commitment--Finding required--Duration.
If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or developmental disability, or other conditions set forth in § 23A-10A-1, rendering the defendant mentally incompetent to the extent that the defendant is unable to understand the nature and consequences of the proceedings against the defendant or to assist properly in the defense, the court shall order the defendant to be placed in a restoration to competency program under the direction of an approved facility, commit the defendant to the custody of an approved facility having residential capability, or order the defendant to be placed on outpatient status for restoration to competency if the court makes a written finding that the defendant is not considered to be a danger to the health and safety of others and is otherwise eligible for bond. A defendant placed on outpatient status is subject to the provisions of chapter 23A-43. The defendant shall be treated for a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future the defendant will attain the capacity to permit the trial to proceed. No commitment may be made to an approved facility that is not owned by the state without first obtaining the consent of the administrator of the privately owned facility.
Source: SDC 1939 & Supp 1960, § 34.2002; SDCL, § 23-38-2; SL 1978, ch 175, § 3; SL 1985, ch 192, § 39; SL 1991, ch 199, § 5; SL 2020, ch 97, § 1.
23A-10A-4.1. Recovery of defendant--Certificate--Discharge pending hearing--Notice--Hearing.
If the director of the facility under which the defendant is being treated in accordance with § 23A-10A-4 determines that the defendant has recovered to an extent that the defendant is able to understand the nature and consequences of the proceedings against the defendant and to assist properly in the defense, the director shall promptly file a certificate to that effect with the clerk of the court that ordered the placement or commitment, and the defendant shall be discharged from the facility where the defendant is hospitalized, if applicable. Upon discharge, the defendant is subject to the provisions of chapter 23A-43.
The court shall send a copy of the certificate to the defendant's counsel and to the prosecuting attorney. The court shall hold a hearing, conducted under the provisions of § 23A-46-3, to determine the competency of the defendant. If, after the hearing, the court finds by a preponderance of the evidence that the defendant has recovered to an extent that the defendant is capable of understanding the nature and consequences of the proceedings against the defendant and to assist properly in the defense, the court shall set the date for trial. If, after the hearing, the court does not find by a preponderance of the evidence that the defendant has recovered to an extent that the defendant is capable of understanding the nature and consequences of the proceedings against the defendant and to assist properly in the defense, the court shall order the defendant to be placed in a restoration to competency program under the direction of an approved facility, in an approved facility, or on outpatient status for restoration to competency if the court makes a written finding that the defendant is not considered to be a danger to the health and safety of others and is otherwise eligible for bond for a term consistent with this section and §§ 23A-10A-14 and 23A-10A-15.
Source: SL 1985, ch 192, § 40; SL 1991, ch 199, § 6; SL 2020, ch 97, § 2; SL 2023, ch 78, § 1.
23A-10A-4.2. Findings as to mental competence not prejudicing insanity defense--Inadmissible.
A finding by the court that the defendant is mentally competent to stand trial may not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged, and may not be admissible as evidence in a trial for the offense charged.
Source: SL 1985, ch 192, § 41.
23A-10A-5. Suspension of proceedings pending determination of defendant's competency.
The trial of the indictment or information or the sentencing, as the case may be, shall be suspended until the question of mental competency is determined by the court.
Source: SDC 1939 & Supp 1960, § 34.2002; SDCL, § 23-38-3; SL 1978, ch 175, § 5; SL 1991, ch 199, § 10; SL 1991, ch 200.
23A-10A-6. Rules governing competency proceedings.
The proceedings on the question of mental competency shall be conducted according to the rules of criminal procedure.
Source: SDC 1939 & Supp 1960, § 34.2003; SDCL, § 23-38-4; SL 1978, ch 175, § 6.
23A-10A-6.1. Burden and standard of proof.
If the defendant, state, or court asserts that a defendant is mentally incompetent to proceed, the state has the burden of proving the mental competence of the defendant by a preponderance of the evidence.
Source: SL 1984, ch 178; SL 1988, ch 190.
23A-10A-10. Expense of maintenance of defendant committed.
The expenses of keeping a defendant in the approved facility is chargeable and collectible in the same manner as when a mentally ill person not charged with a public offense is committed thereto.
Source: SDC 1939 & Supp 1960, § 34.2005; SDCL, § 23-38-8; SL 1978, ch 175, § 10; SL 1991, ch 199, § 12.
23A-10A-13. Approved facility defined.
The term, approved facility, as used in this chapter, means the Human Services Center; the state developmental centers; a community support provider; a mental health center, as defined by subdivision 27A-1-1(13), or any other facility approved by the Department of Human Services or the Department of Social Services for placement or treatment of mentally ill or developmentally disabled persons.
Source: SL 1991, ch 199, § 2; SL 2009, ch 138, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 134, eff. Apr. 12, 2011.
23A-10A-13.1 . Restoration to competency program defined.
The term, restoration to competency program, as used in this chapter, means a program under the direction of an approved facility which is designed to restore the defendant to competency in an inpatient, outpatient, or jail-based setting. The term includes a county jail upon the concurrence of the county sheriff to provide restoration to competency in the jail under the direction of an approved facility.
Source: SL 2020, ch 97, § 3.
23A-10A-14. Facility's report--Length of commitment determined--Review after one year--Dismissal on court finding.
After four months of evaluation, pursuant to § 23A-10A-4, if the facility has not certified that the defendant is competent to proceed, pursuant to § 23A-10A-4.1, the director of the approved facility shall issue a report to the circuit court evaluating whether there is a substantial probability that the defendant will become competent to proceed and whether there is a substantial probability that it will occur within the next year. After receipt of that report by the circuit court, the court shall set a time for hearing to determine whether there is a substantial probability that the defendant will become competent to proceed and whether there is a substantial probability that it will occur within the next year.
If the court finds there is a substantial probability that the defendant will become competent to proceed within the next year, the court shall order the defendant to be placed in a restoration to competency program under the direction of an approved facility, committed to an approved facility, or placed on outpatient status for restoration to competency if the defendant is not considered to be a danger to the health and safety of others for an additional specified period of time, not to exceed one year, or until the director of the facility issues a certificate of recovery pursuant to § 23A-10A-4.1.
If the court finds there is no substantial probability that the defendant will become competent to proceed within one year but there is a substantial probability that the defendant will become competent in the foreseeable future, the court shall review the defendant's condition to determine appropriate placement and order the defendant to be placed in a restoration to competency program under the direction of an approved facility, committed to an approved facility, or to be placed on outpatient status for restoration to competency if the defendant is not considered to be a danger to the health and safety of others for a term consistent with § 23A-10A-15.
If the one year provided for in this section has run without a certificate of recovery being issued, the director of the approved facility shall notify the court that one year has expired since the order of detention, and the court shall order a hearing to review the defendant's condition to determine appropriate placement and order the defendant's placement in a restoration to competency program under the direction of an approved facility, commitment to an approved facility, or placement on outpatient status for restoration to competency if the defendant is not considered to be a danger to the health and safety of others for a term consistent with § 23A-10A-15.
If the court finds that there is no substantial probability that the defendant will become competent to proceed in the foreseeable future, the court shall dismiss the criminal charges against the defendant. If the director of the facility determines there is probable cause to believe that the defendant is a danger to self or others if the defendant is released, the director shall include the basis for that determination in the report and may recommend that the prosecutor file a petition for civil commitment proceedings.
Source: SL 1991, ch 199, § 7; SL 2020, ch 97, § 4; SL 2021, ch 107, § 1.
23A-10A-15. Length of detention for Class A, B, or C felony.
If the most serious charge against the defendant is a Class A, B, or C felony, the order shall be for a term of years the court determines is reasonable or until the charges have been dismissed by the prosecution. The order may not exceed the maximum penalty allowable for the most serious charge facing the defendant. Upon expiration of the order of detention, the criminal charges against the defendant shall be dismissed. If the prosecutor believes there is probable cause to believe that the defendant is a danger to self or to others at the time of dismissal, the prosecutor may file a petition in accordance with chapter 27A-10 or 27A-11A or title 27B, for further restoration to competency.
Every twelve months thereafter, the director of the approved facility shall notify the court if the defendant is still in a restoration to competency program under the direction of an approved facility or in the approved facility pursuant to this chapter, and the circuit court shall hold a hearing to review any order of detention to determine if the defendant has become competent to proceed.
Source: SL 1991, ch 199, §§ 8, 9; SL 2020, ch 97, § 5; SL 2021, ch 107, § 2.
23A-10A-16. Time in approved facility credited to term of imprisonment.
Time spent by a defendant in a restoration to competency program or an approved facility pursuant to this chapter, shall be credited to the term of imprisonment, if any, for which the defendant is sentenced in the criminal case which was suspended under § 23A-10A-5.
Source: SL 1991, ch 199, § 11; SL 2020, ch 97, § 6.
23A-11-1
(Rule 13) Joinder for trial of indictments, informations, or defendants.
23A-11-2
(Rule 14) Relief from prejudicial joinder of offenses or defendants.
23A-11-1. (Rule 13) Joinder for trial of indictments, informations, or defendants.
A court may order two or more indictments or informations, or both, to be tried together if the offenses, and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under a single indictment or information.
Source: Supreme Court Rule 395, 1939; SDC 1939 & Supp 1960, § 34.3625; SDCL, § 23-42-4; SL 1978, ch 178, § 129.
23A-11-2. (Rule 14) Relief from prejudicial joinder of offenses or defendants.
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecuting attorney to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.
Source: Supreme Court Rules 366, 395, 1939; SDC 1939 & Supp 1960, §§ 34.3009, 34.3625; SDCL, §§ 23-32-8, 23-42-4; SL 1978, ch 178, § 130.
CHAPTER 23A-12
(RULE 15) DEPOSITIONS
23A-12-1 (Rule 15 (a)) Depositions ordered only as specifically authorized--Order to preserve testimony for trial--Production of other evidence--Witness committed on failure to give bail.
23A-12-2 (Rule 15(b)) Notice to parties of time and place of deposition--Production of defendant in custody--Defendant's right to attend.
23A-12-3 (Rule 15(c)) Governmental payment of defendant's expenses for deposition.
23A-12-4 (Rule 15(d)) Manner of taking and filing deposition--Disclosure to defense of prior statements of witness.
23A-12-5 Sealing and endorsement of deposition--Transmittal to court.
23A-12-6 (Rule 15(e)) Circumstances permitting use of deposition at trial--Use for impeachment--Parts of deposition used.
23A-12-7 (Rule 15(f)) Time of objecting to testimony in deposition--Objections to receiving in evidence.
23A-12-8 (Rule 15(g)) Agreement of parties as to taking or use of deposition.
23A-12-9 Video recording of young sex crime or human trafficking victim's testimony at preliminary hearing or deposition--Use at trial.
23A-12-10 Hearing to record testimony as to additional evidence.
23A-12-1. (Rule 15 (a)) Depositions ordered only as specifically authorized--Order to preserve testimony for trial--Production of other evidence--Witness committed on failure to give bail.
Depositions shall not be ordered for discovery or any other purpose except as specifically provided by statute or rule.
Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.
Source: SL 1978, ch 178, § 131; SL 1979, ch 159, § 10.
23A-12-2. (Rule 15(b)) Notice to parties of time and place of deposition--Production of defendant in custody--Defendant's right to attend.
The party at whose instance a deposition is to be taken in the state shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce him at the examination and keep him in the presence of the witness during the examination, unless, after being warned by the court that disruptive conduct will cause him to be removed from the place of the taking of the deposition, he persists in conduct which is such as to justify his being excluded from that place. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but his failure, absent good cause shown, to appear after notice and tender of expenses in accordance with § 23A-12-3 shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.
Source: SL 1978, ch 178, § 132.
23A-12-3. (Rule 15(c)) Governmental payment of defendant's expenses for deposition.
Whenever a deposition is taken at the instance of the prosecuting attorney, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and his attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the appropriate governmental unit.
Source: SL 1978, ch 178, § 133.
23A-12-4. (Rule 15(d)) Manner of taking and filing deposition--Disclosure to defense of prior statements of witness.
Subject to such additional conditions as the court may provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in this title; provided that:
(1) In no event shall a deposition be taken of a party defendant without his consent; and
(2) The scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself.
The prosecuting attorney shall make available to the defendant or his counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the prosecuting attorney and to which the defendant would be entitled at the trial.
Source: SL 1978, ch 178, § 134.
23A-12-5. Sealing and endorsement of deposition--Transmittal to court.
A deposition taken pursuant to this chapter shall be enclosed, sealed, and endorsed with the title of the action and the name of the officer taking it. Such officer shall address and transmit it to the clerk of the court where the action is pending. It shall remain under seal until opened by the clerk by order of the court, or at the request of a party to the action or his attorney or the prosecuting attorney.
Source: SDC 1939 & Supp 1960, § 34.2703; SDCL, § 23-41-19; SL 1978, ch 178, § 135.
23A-12-6. (Rule 15(e)) Circumstances permitting use of deposition at trial--Use for impeachment--Parts of deposition used.
At a trial or any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:
(1) That a witness is dead;
(2) That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition;
(3) That the witness is unable to attend or testify because of sickness or infirmity; or
(4) That the witness is confined in jail or prison outside the state.
When a deposition has once been taken, it may be read in any stage of the same action and on any trial thereof. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is relevant to the part offered, and any party may offer other parts.
Source: SDC 1939 & Supp 1960, §§ 34.2606, 34.2704; SDCL, §§ 23-41-13, 23-41-20; SL 1978, ch 178, § 136.
23A-12-7. (Rule 15(f)) Time of objecting to testimony in deposition--Objections to receiving in evidence.
Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition. Objections to receiving in evidence a deposition or part thereof may be made on the basis that the conditions of § 23A-12-6 are no longer applicable.
Source: SL 1978, ch 178, § 137.
23A-12-8. (Rule 15(g)) Agreement of parties as to taking or use of deposition.
Nothing in this chapter shall preclude the taking of a deposition, for use at trial, orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court.
Source: SL 1978, ch 178, § 138.
23A-12-9. Video recording of young sex crime or human trafficking victim's testimony at preliminary hearing or deposition--Use at trial.
If a victim is less than sixteen years of age at the time of a preliminary hearing or deposition, a prosecuting or defense attorney may apply for an order that the victim's testimony at the preliminary hearing or deposition, in addition to being stenographically recorded, be recorded and preserved on video, if a defendant has been charged with a violation of:
(1) Subdivision 22-22-1(1) or (5);
(2) § 22-22-7; or
(3) § 22-49-2.
The scope and manner of the examination and cross-examination must be such as would be allowed at the trial. Notice of any such deposition pursuant to this section must conform in all respects to the notice requirements contained in § 23A-12-2.
The application for the order must be in writing and made at least three days before the preliminary hearing or deposition.
Upon timely receipt of the application, the court may order that the testimony of the victim given at the preliminary hearing or deposition be taken and preserved on video. The video must be transmitted to the clerk of the court in which the action is pending.
If, at the time of trial, the court finds that the victim is otherwise unavailable within the meaning of subdivision 19-19-804(a), or that such testimony would in the opinion of the court be substantially detrimental to the well-being of the victim, the court may admit the video of the victim's testimony at the preliminary hearing or deposition as former testimony under subsection 19-19-804(b)(1).
Source: SL 1983, ch 184, § 1; SL 1985, ch 195; SL 1986, ch 191, § 1; SL 2008, ch 118, § 2; SL 2022, ch 72, § 1.
23A-12-10. Hearing to record testimony as to additional evidence.
Upon timely receipt of a notice that additional evidence has been newly discovered and for good cause shown, the court may order an additional hearing to record the victim's testimony relevant to the newly discovered evidence on video.
Source: SL 1983, ch 184, § 2; SL 2022, ch 72, § 2.
23A-13-1
(Rule 16(a)(1)(A)) Prosecution evidence discoverable by defendant--Statements of
employees of corporate defendants.
23A-13-2
(Rule 16(a)(1)(B)) Copy of prior criminal record furnished to defendant on request.
23A-13-3
(Rule 16(a)(1)(C)) Defendant's right to inspect and copy documentary and tangible
evidence.
23A-13-4
(Rule 16(a)(1)(D)) Defendant's right to inspect and copy results of examinations or
scientific tests.
23A-13-5
Work product protected from discovery by defendant.
23A-13-6
Statement by witness not discoverable until testimony in preliminary hearing or trial.
23A-13-7
Prior statements of prosecution witnesses subject to discovery after direct
examination.
23A-13-8
Excision from statement of prosecution witness of matter not testified to--Delivery
to defendant--Preservation of entire statement for appeal--Recess to permit
examination by defendant.
23A-13-9
Testimony stricken when prosecution elects not to produce prior statement--Mistrial.
23A-13-10
Kinds of prior statements subject to discovery by defendant.
23A-13-11
(Rule 16(a)(3)) Grand jury proceedings not discoverable--Exceptions.
23A-13-12
(Rule 16(b)(1)(A)) Defendant's documentary and tangible evidence discoverable by
prosecution.
23A-13-13
Results of examinations and scientific tests discoverable by prosecution.
23A-13-14
(Rule 16(b)(2)) Defense work product protected from discovery.
23A-13-15
(Rule 16(c)) Notice to adverse party of newly discovered evidence subject to
discovery.
23A-13-16
(Rule 16(d)(1)) Restriction of rights of discovery or inspection--Preservation of entire
statement for appellate record.
23A-13-17
(Rule 16(d)(2)) Remedies on failure of party to comply with discovery requirements--Manner of discovery and inspection.
23A-13-18
(Rule 16(e)) Discovery of alibi witnesses.
23A-13-1. (Rule 16(a)(1)(A)) Prosecution evidence discoverable by defendant--Statements of employees of corporate defendants.
Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph:
(1) Any relevant written or recorded statements made by the defendant or copies thereof, within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney;
(2) The substance of any oral statement, which the prosecuting attorney intends to offer in evidence at the trial, made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be an employee of a law enforcement agency; and
(3) Notwithstanding § 23A-5-16, recorded testimony of the defendant before a grand jury which relates to the offense charged.
Where the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who was, at the time of his testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or who was at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which he was involved.
Source: SL 1978, ch 178, § 140.
23A-13-2. (Rule 16(a)(1)(B)) Copy of prior criminal record furnished to defendant on request.
Upon written request of the defendant, the prosecuting attorney shall furnish to the defendant such copy of his prior criminal record, if any, as is within the possession, custody, or control of the prosecuting attorney, and the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
Source: SL 1978, ch 178, § 142.
23A-13-3. (Rule 16(a)(1)(C)) Defendant's right to inspect and copy documentary and tangible evidence.
Upon written request of the defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecuting attorney and which are material to the preparation of his defense or intended for use by the prosecuting attorney as evidence in chief at the trial, or were obtained from or belong to the defendant.
Source: SL 1978, ch 178, § 143.
23A-13-4. (Rule 16(a)(1)(D)) Defendant's right to inspect and copy results of examinations or scientific tests.
Upon written request of a defendant, the prosecuting attorney shall permit a defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the prosecuting attorney, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by a prosecuting attorney as evidence in chief at the trial.
Source: SL 1978, ch 178, § 144.
23A-13-5. Work product protected from discovery by defendant.
Except as provided in §§ 23A-13-1, 23A-13-2, and 23A-13-4, this chapter does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by the prosecuting attorney or other employees of law enforcement agencies in connection with the investigation or prosecution of the case, or of statements made by the prosecution witnesses or prospective prosecution witnesses except as provided in §§ 23A-13-7 to 23A-13-10, inclusive.
Source: SL 1978, ch 178, § 145.
23A-13-6. Statement by witness not discoverable until testimony in preliminary hearing or trial.
In any criminal prosecution, no statement in the possession of the prosecuting attorney, which was made by a prosecution witness or prospective prosecution witness (other than the defendant), shall be the subject of subpoena, discovery, or inspection until such witness has testified on direct examination in the preliminary hearing or in the trial of the case.
Source: SL 1978, ch 178, § 146; SL 1979, ch 159, § 10A.
23A-13-7. Prior statements of prosecution witnesses subject to discovery after direct examination.
After a witness called by the prosecuting attorney has testified on direct examination, the court shall, on motion of the defendant, order the prosecuting attorney to produce any statement, as defined in § 23A-13-10, of the witness in the possession of the prosecuting attorney which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
Source: SL 1978, ch 178, § 147.
23A-13-8. Excision from statement of prosecution witness of matter not testified to--Delivery to defendant--Preservation of entire statement for appeal--Recess to permit examination by defendant.
If the prosecuting attorney claims that any statement ordered to be produced under §§ 23A-13-6 to 23A-13-10, inclusive, contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the prosecuting attorney to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the prosecuting attorney and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of the defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of the statement by the defendant and his preparation for its use in the trial.
Source: SL 1978, ch 178, § 148.
23A-13-9. Testimony stricken when prosecution elects not to produce prior statement--Mistrial.
If the prosecuting attorney elects not to comply with an order of the court under §§ 23A-13-7 and 23A-13-8 to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
Source: SL 1978, ch 178, § 148-A.
23A-13-10. Kinds of prior statements subject to discovery by defendant.
The term "statement" as used in §§ 23A-13-7 to 23A-13-9, inclusive, in relation to any witness called by the prosecuting attorney, means:
(1) A written statement made by such witness and signed or otherwise adopted or approved by him;
(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by such witness and recorded contemporaneously with the making of such oral statement;
(3) A statement, however taken or recorded, or a transcription thereof, if any, made by such witness to a grand jury;
(4) A summary of an oral declaration made by someone other than the witness that has been reduced to writing, except for a summary written by a prosecuting attorney.
Source: SL 1978, ch 178, § 148-B; SL 1979, ch 159, § 10B; SL 2018, ch 290 (Supreme Court Rule 17-11), eff. Sept. 1, 2017.
23A-13-11. (Rule 16(a)(3)) Grand jury proceedings not discoverable--Exceptions.
Except as provided in chapter 23A-5, § 23A-13-1, and subdivision 23A-13-10(3), this title does not relate to discovery or inspection of the recorded proceedings of a grand jury.
Source: SL 1978, ch 178, § 149.
23A-13-12. (Rule 16(b)(1)(A)) Defendant's documentary and tangible evidence discoverable by prosecution.
If the defendant requests disclosure under § 23A-13-3 or 23A-13-4, upon compliance with such request by the prosecuting attorney, the defendant, on written request of the prosecuting attorney, shall permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.
Source: SL 1978, ch 178, § 151.
23A-13-13. Results of examinations and scientific tests discoverable by prosecution.
If the defendant requests disclosure under § 23A-13-3 or 23A-13-4, upon compliance with such request by the prosecuting attorney, the defendant, on written request of the prosecuting attorney, shall permit the prosecuting attorney to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to his testimony.
Source: SL 1978, ch 178, § 152.
23A-13-14. (Rule 16(b)(2)) Defense work product protected from discovery.
Except as to scientific or medical reports, § 23A-13-12 or 23A-13-13 does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution or defense witnesses, to the defendant, his agents or attorneys.
Source: SL 1978, ch 178, § 153.
23A-13-15. (Rule 16(c)) Notice to adverse party of newly discovered evidence subject to discovery.
If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under §§ 23A-13-1 to 23A-13-14, inclusive, he shall promptly notify the other party or his attorney or the court of the existence of the additional evidence or material.
Source: SL 1978, ch 178, § 162.
23A-13-16. (Rule 16(d)(1)) Restriction of rights of discovery or inspection--Preservation of entire statement for appellate record.
Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
Source: SL 1978, ch 178, § 173.
23A-13-17. (Rule 16(d)(2)) Remedies on failure of party to comply with discovery requirements--Manner of discovery and inspection.
If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.
Source: SL 1978, ch 178, § 174.
23A-13-18. (Rule 16(e)) Discovery of alibi witnesses.
Discovery of alibi witnesses is governed by chapter 23A-9.
Source: SL 1978, ch 178, § 176.
23A-14-1
(Rule 17(a)) Reserved.
23A-14-2
Attorneys' subpoena for witnesses within state.
23A-14-3
(Rule 17(b)) Subpoenas for indigent defendant--Payment of costs.
23A-14-4
Committing magistrate's subpoenas for witnesses within state--Blank subpoenas issued by
clerk of court.
23A-14-5
(Rule 17(c)) Documentary or tangible evidence required by subpoena--Modification--Inspection rights.
23A-14-6
(Rule 17(d)) Service of subpoena--Tender of fees and mileage.
23A-14-7
(Rule 17(e)(1)) Place of service of subpoena.
23A-14-7.1
Expenses paid for out-of-county or indigent witness produced by state pursuant to
subpoena or undertaking.
23A-14-8
(Rule 17(e)) Reserved.
23A-14-9
(Rule 17(f)(1)) Authority for subpoena for deposition.
23A-14-10
(Rule 17(f)(2)) Place attendance required for deposition.
23A-14-11
John Doe subpoena for examination before magistrate--Compelling obedience.
23A-14-12
Advice as to rights given to John Doe witness--Immunity provisions applicable.
23A-14-13
Record of John Doe testimony--Warrant for arrest of offender.
23A-14-14
Interstate summons of witnesses--Definition of terms.
23A-14-15
Hearing on certification from another state as to witness required from this state.
23A-14-16
Summons to appear in another state issued after hearing--Protection accorded witness.
23A-14-17
Placement of witness in custody of officer from other state.
23A-14-18
Punishment for contempt by witnesses summoned for appearance in another state--Fees
to which entitled.
23A-14-19
Certificate by judge or magistrate for summons of witness from another state--Recommendation for immediate custody.
23A-14-20
Fees tendered to witness summoned from another state.
23A-14-21
Duration of stay required of witness summoned from another state.
23A-14-22
Immunity from process of witness summoned from another state.
23A-14-23
Immunity from process of witness passing through under interstate summons.
23A-14-24
Punishment for contempt by witness summoned from another state.
23A-14-25
(Rule 17(g)) Disobedience of subpoena as contempt of court.
23A-14-26
Motions relating to subpoena--Hearing.
23A-14-27
Stay of subpoena until ruling on motion.
23A-14-28
Sanctions for oppressive subpoenas.
23A-14-29
Self-incriminating testimony required under promise of immunity--Restrictions on use of
information.
23A-14-2. Attorneys' subpoena for witnesses within state.
A prosecuting attorney may issue subpoenas, subscribed by him, for witnesses within the state, in support of a prosecution, or for such witnesses as a grand jury may direct. An attorney for a defendant may issue subpoenas subscribed by him for witnesses the defendant may require.
Source: SDC 1939 & Supp 1960, § 34.2401; SDCL, § 23-40-3; SL 1978, ch 178, § 178.
23A-14-3. (Rule 17(b)) Subpoenas for indigent defendant--Payment of costs.
If a defendant has received court appointed counsel pursuant to chapter 23A-40, the court shall order at any time that a subpoena be issued upon the application of the defendant to the court. The defendant must state that he is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed by the process shall be paid in the same manner in which similar costs and fees are paid in the case of a witness subpoenaed in behalf of the state. Such motion may be made ex parte.
Source: SL 1978, ch 178, § 179.
23A-14-4. Committing magistrate's subpoenas for witnesses within state--Blank subpoenas issued by clerk of court.
A committing magistrate before whom a complaint is laid shall, when requested, issue subpoenas, subscribed by him, for witnesses within the state, either on behalf of the state or the defendant.
The clerk of the court at which an indictment or information is to be tried shall issue a subpoena without charge, signed and sealed but otherwise blank, to a party requesting it, who shall fill in the blanks before it is served.
Source: SDC 1939 & Supp 1960, § 34.2401; SDCL, §§ 23-40-2, 23-40-4; SL 1978, ch 178, § 178.
23A-14-5. (Rule 17(c)) Documentary or tangible evidence required by subpoena--Modification--Inspection rights.
A subpoena may also command the person to whom it is directed to produce books, papers, documents, or other objects designated therein. A court on motion made promptly may quash or modify a subpoena if compliance would be unreasonable or oppressive. A court may direct that books, papers, documents, or objects designated in a subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, or documents, or objects or portions thereof to be inspected by the parties and their attorneys.
Source: SL 1978, ch 178, § 180.
23A-14-6. (Rule 17(d)) Service of subpoena--Tender of fees and mileage.
A subpoena may be served by a sheriff, by his deputy, or by any other person who is not a party and who is not less than eighteen years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to him the fee for one day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to a witness upon service of a subpoena issued on behalf of the state, on behalf of a person residing within the county in which the action is pending, or on behalf of a defendant who has received court appointed counsel pursuant to chapter 23A-40.
Source: SDC 1939 & Supp 1960, § 34.2403; SDCL, §§ 23-40-7, 23-40-8; SL 1978, ch 178, § 181.
23A-14-7. (Rule 17(e)(1)) Place of service of subpoena.
A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state.
Source: SL 1978, ch 178, § 182.
23A-14-7.1. Expenses paid for out-of-county or indigent witness produced by state pursuant to subpoena or undertaking.
When a person attends before a magistrate, grand jury, or court, as a witness on behalf of the state, upon a subpoena or pursuant to an undertaking, and it appears that he has come from a place out of the county or that he is indigent, the court, if the attendance of a witness is for a trial, by an order entered upon its minutes, or in any other case, the circuit judge, by a written order, may direct the county treasurer to pay the witness a reasonable sum, to be specified in the order, for his expenses. Upon the production of the order, or a certified copy thereof, the county treasurer must pay the witness the sum specified therein, out of the county treasury.
Source: SL 1979, ch 159, § 11.
23A-14-9. (Rule 17(f)(1)) Authority for subpoena for deposition.
An order to take a deposition authorizes the issuance by the clerk of the court for the circuit in which the deposition is to be taken of subpoenas for the persons named or described therein.
Source: SL 1978, ch 178, § 184.
23A-14-10. (Rule 17(f)(2)) Place attendance required for deposition.
The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.
Source: SL 1978, ch 178, § 185.
23A-14-11. John Doe subpoena for examination before magistrate--Compelling obedience.
Whenever a complaint verified positively or upon information and belief by a prosecuting attorney is laid before a committing magistrate that a criminal offense has been committed in this state and asking for an investigation of the same, such magistrate shall issue his subpoena requiring any person he may deem proper to attend before him at the time and place mentioned in such subpoena and submit to an examination and give testimony concerning any violation of law about which he may be questioned. No witness shall refuse to comply with such subpoena because his fee therefor has not been paid in advance and his attendance may be compelled by attachment as in the case of other witnesses.
Source: SDC 1939 & Supp 1960, § 34.0901; SDCL, § 23-20-10; SL 1978, ch 178, § 483.
23A-14-12. Advice as to rights given to John Doe witness--Immunity provisions applicable.
Any witness examined under § 23A-14-11 shall be informed that he has a right to be advised by counsel and that he may not be required to make any statement which will incriminate him. The provisions of § 23A-14-29 relating to immunity shall apply to proceedings held pursuant to § 23A-14-11.
Source: SL 1978, ch 178, § 483.
23A-14-13. Record of John Doe testimony--Warrant for arrest of offender.
The testimony of a witness attending pursuant to § 23A-14-11 shall be reduced to writing by the committing magistrate or some person under his direction. If the offense complained of appears to have been committed, a warrant for the arrest of the offender shall be issued and further proceedings shall then be had as provided by law.
Source: SDC 1939 & Supp 1960, § 34.0901; SDCL, § 23-20-11; SL 1978, ch 178, § 484.
23A-14-14. Interstate summons of witnesses--Definition of terms.
Terms used in §§ 23A-14-14 to 23A-14-24, inclusive, mean:
(1) "Witness," a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding;
(2) "State," any state or territory of the United States and the District of Columbia;
(3) "Summons," a summons, subpoena, order, or other notice requiring the appearance of a witness.
Source: SL 1937, ch 259, § 1; SDC 1939 & Supp 1960, § 34.2501; SDCL, § 23-40-14; SL 1978, ch 178, § 186.
23A-14-15. Hearing on certification from another state as to witness required from this state.
If a judge of a court of record in any state which by its laws has made provisions commanding persons within that state to attend and testify in this state, certifies under the seal of such court that there is a criminal prosecution pending in that court, or that a grand jury investigation has commenced or is about to commence, that a person in this state is a material witness in such prosecution or grand jury investigation, and that his presence will be required for a specified number of days, a South Dakota circuit judge of the county in which such person is, shall, upon presentation of such certificate, fix a time and place for a hearing, and shall make an order directing the witness to appear at the hearing.
Source: SDC 1939 & Supp 1960, § 34.2502; SDCL, § 23-40-15; SL 1978, ch 178, § 187.
23A-14-16. Summons to appear in another state issued after hearing--Protection accorded witness.
If a hearing is ordered pursuant to § 23A-14-15 and a judge determines that a witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence, and of any other state through which the witness may be required to pass by ordinary course of travel, will give him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending or where the grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.
Source: SDC 1939 & Supp 1960, § 34.2502; SDCL, § 23-40-16; SL 1978, ch 178, § 188.
23A-14-17. Placement of witness in custody of officer from other state.
If the certificate described in § 23A-14-16 recommends that a witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, the judge to whom the certificate is presented may, in lieu of notification of the hearing, direct that the witness be forthwith brought before him for the hearing. If the judge at the hearing is satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability, he may in lieu of issuing a subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.
Source: SDC 1939 & Supp 1960, § 34.2502; SDCL, § 23-40-17; SL 1978, ch 178, § 189.
23A-14-18. Punishment for contempt by witnesses summoned for appearance in another state--Fees to which entitled.
A witness, who has been summoned pursuant to §§ 23A-14-15 to 23A-14-17, inclusive, who has been paid or offered, by a properly authorized person, twenty-one cents for each mile by the ordinarily traveled route to and from the court where the prosecution is pending, twenty dollars for each day that he is required to travel and attend as a witness, and twenty-five dollars for each night he is required to remain away from his residence, and who fails without good cause to attend and testify as directed in the summons, shall be punished in the manner provided by § 23A-38-1 or 23A-38-2.
Source: SDC 1939 & Supp 1960, § 34.2502; SDCL, § 23-40-18; SL 1978, ch 178, § 190; SL 1986, ch 169, § 2.
23A-14-19. Certificate by judge or magistrate for summons of witness from another state--Recommendation for immediate custody.
A circuit judge or a magistrate judge may issue a certificate under the seal of his court stating that a person in another state is a material witness in a prosecution pending in a court presided over by a circuit court judge or magistrate judge or in a grand jury investigation which has commenced or is about to commence in this state, if that state has made provisions in its laws for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the jurisdiction in which the witness is found.
Source: SDC 1939 & Supp 1960, § 34.2503; SDCL, § 23-40-19; SL 1978, ch 178, § 191.
23A-14-20. Fees tendered to witness summoned from another state.
If the witness described in § 23A-14-19 is summoned to attend and testify in this state, he shall be offered twenty-one cents for each mile by the ordinarily traveled route to and from the court where the prosecution is pending, twenty dollars for each day that he is required to travel and attend as a witness, and twenty-five dollars for each night he is required to remain away from his residence.
Source: SDC 1939 & Supp 1960, § 34.2503; SDCL, § 23-40-20; SL 1978, ch 178, § 192; SL 1986, ch 169, § 3.
23A-14-21. Duration of stay required of witness summoned from another state.
A witness who has appeared in accordance with the provisions of the summons shall not be required to remain in this state for a longer period of time than the period mentioned in the certificate, unless otherwise ordered by a court.
Source: SL 1933, ch 205, § 2; SL 1937, ch 259, § 3; SDC 1939 & Supp 1960, § 34.2503; SDCL, § 23-40-21; SL 1978, ch 178, § 193.
23A-14-22. Immunity from process of witness summoned from another state.
If a witness comes into this state in obedience to a summons directing him to attend and testify in this state he shall not while in this state pursuant to such summons be subject to arrest or the service of civil or criminal process in connection with matters which arose before his entrance into this state under the summons.
Source: SDC 1939 & Supp 1960, § 34.2504; SDCL, § 23-40-23; SL 1978, ch 178, § 195.
23A-14-23. Immunity from process of witness passing through under interstate summons.
If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of civil or criminal process in connection with matters which arose before his entrance into this state under summons.
Source: SDC 1939 & Supp 1960, § 34.2504; SDCL, § 23-40-24; SL 1978, ch 178, § 196.
23A-14-24. Punishment for contempt by witness summoned from another state.
If a witness described in § 23A-14-19 comes into this state and fails without good cause to attend and testify as directed in his summons, he shall be punished in the manner provided by § 23A-38-1 or 23A-38-2.
Source: SDC 1939 & Supp 1960, § 34.2503; SDCL, § 23-40-22; SL 1978, ch 178, § 194.
23A-14-25. (Rule 17(g)) Disobedience of subpoena as contempt of court.
Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.
Source: SDC 1939 & Supp 1960, § 34.2405; SDCL, § 23-40-10; SL 1978, ch 178, § 203.
23A-14-26. Motions relating to subpoena--Hearing.
A motion relating to a subpoena may be made at any time prior to, during, or when appropriate, subsequent to the appearance of any witness before he testifies. Such motions shall be heard in chambers and on the record.
Source: SL 1978, ch 178, § 200.
23A-14-27. Stay of subpoena until ruling on motion.
If a motion is made under § 23A-14-26 before the day on which the person subpoenaed has been ordered to appear, or books, records, or documents have been ordered to be produced, the appearance of such person, or the production of such documents, shall upon appropriate order, be stayed until the court has ruled on such motion.
Source: SL 1978, ch 178, § 201.
23A-14-28. Sanctions for oppressive subpoenas.
The court may impose appropriate sanctions including the quashing of a subpoena upon a showing by the subpoenaed person that:
(1) If called for any purpose, compliance with the subpoena would be for punitive purposes;
(2) If called before a grand jury, a primary purpose or effect of requiring such person to so testify or to produce such objects to the grand jury is or will be to secure for trial testimony or to secure other information regarding the activities of any person who is already under indictment for those activities in this state, or of any person who is held to answer by information for those activities.
Source: SL 1978, ch 178, § 202.
23A-14-29. Self-incriminating testimony required under promise of immunity--Restrictions on use of information.
No witness may be excused on the basis of his privilege against self-incrimination from testifying or providing other information in a proceeding before a court, grand jury, administrative agency, or legislative committee of this state for a civil, criminal, or administrative action whenever the prosecuting attorney or attorney general has granted the witness immunity pursuant to this section or whenever the magistrate or circuit court judge presiding over the proceeding has ordered such testimony. No testimony or other information compelled under an order or a grant of immunity, or any information directly or indirectly derived from such testimony, may be used against the witness in any criminal proceeding, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
Source: SDC 1939 & Supp 1960, § 34.2406; SDCL, § 23-40-12; SL 1978, ch 178, § 481; SL 1985, ch 196, § 1.
23A-14A-1. Definitions.
Terms used in §§ 23A-14A-1 to 23A-14A-10, inclusive, mean:
(1) "Witness," a person who is confined in a penal institution in any state and whose testimony is desired in another state in any criminal proceeding or investigation by grand jury or in any criminal action before a court;
(2) "Penal institution," includes any jail, prison, penitentiary, house of correction, or other place of penal detention;
(3) "State," includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory of the United States.
Source: SL 2002, ch 119, § 1.
23A-14A-2. Summoning prisoner in this state to testify in another state--Certificate of out-of-state judge--Hearing.
Any judge of a state court of record in another state, which by its laws has made provisions for commanding persons confined in penal institutions within that state to attend and testify in this state, may certify:
(1) That there is a criminal proceeding or investigation by a grand jury or a criminal action pending in a court;
(2) That a person who is confined in a penal institution in this state may be a material witness in the proceeding, investigation, or action; and
(3) That the person's presence will be required during a specified time.
Upon presentation of the certificate to any judge having jurisdiction over the person confined or to any judge having jurisdiction in the location where the person is confined, and upon notice to the attorney general, the judge in this state shall fix a time and place for a hearing and shall make an order directed to the person having custody of the prisoner requiring that the prisoner be produced before the judge at the hearing.
Source: SL 2002, ch 119, § 2.
23A-14A-3. Issuance of order to attend.
If at the hearing the judge determines:
(1) That the witness may be material and necessary;
(2) That the witness's attending and testifying are not adverse to the interests of this state or to the health or legal rights of the witness;
(3) That the laws of the state in which the witness is required to testify will give the witness protection from arrest and the service of civil and criminal process because of any act committed prior to the witness's arrival in the state under the order; and
(4) That as a practical matter the possibility is negligible that the witness may be subject to arrest or to the service of civil or criminal process in any state through which the witness may pass; the judge shall issue an order, with a copy of the certificate attached, directing the witness to attend and testify, directing the person having custody of the witness to produce the witness in the court where the criminal action is pending, or where the grand jury investigation is pending, at a time and place specified in the order, and prescribing such conditions as the judge shall determine.
Source: SL 2002, ch 119, § 3.
23A-14A-4. Terms and conditions for return, custody--Costs.
The order to the witness and to the person having custody of the witness shall provide for the return of the witness at the conclusion of the witness's testimony, proper safeguards on the witness's custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness, and may prescribe such other conditions as the judge thinks proper or necessary. Mileage and expenses shall be allowed as provided for state employees. The order does not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.
Source: SL 2002, ch 119, § 4.
23A-14A-5. Exceptions.
Sections 23A-14A-1 to 23A-14A-10, inclusive, do not apply to any person in this state confined as mentally ill or under sentence of death.
Source: SL 2002, ch 119, § 5.
23A-14A-6. Prisoner from another state summoned to testify in this state--Certificate.
If a person confined in a penal institution in any other state may be a material witness in a criminal action pending in a court of record or in a grand jury investigation in this state, a circuit court judge or magistrate may certify:
(1) That there is a criminal proceeding or investigation by a grand jury or a criminal action pending in this court;
(2) That a person who is confined in a penal institution in the other state may be a material witness in the proceeding, investigation, or action; and
(3) That the person's presence will be required during a specified time.
The certificate shall be presented to a judge of a court of record in the other state having jurisdiction over the prisoner confined, and a notice shall be given to the attorney general of the state in which the prisoner is confined.
Source: SL 2002, ch 119, § 6.
23A-14A-7. Order of compliance with terms and conditions prescribed by out-of-state judge.
The court may enter an order directing compliance with the terms and conditions prescribed by the judge of the state in which the witness is confined.
Source: SL 2002, ch 119, § 7.
23A-14A-8. Exemption of prisoner from another state from arrest or service of process.
If a witness from another state comes into or passes through this state under an order directing the witness to attend and testify in this or another state, the witness is not subject, while in this state pursuant to the order, to arrest or the service of process, civil or criminal, because of any act committed prior to this arrival in this state under the order.
Source: SL 2002, ch 119, § 8.
23A-14A-9. Uniformity of interpretation.
The provisions of §§ 23A-14A-1 to 23A-14A-10, inclusive, shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.
Source: SL 2002, ch 119, § 9.
23A-14A-10. Citation.
Sections 23A-14A-1 to 23A-14A-10, inclusive, may be cited as the Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act.
Source: SL 2002, ch 119, § 10.
23A-15-1
Order for conference to consider preliminary matters--Defendant not represented by
counsel.
23A-15-2
Memorandum of matters agreed upon at conference.
23A-15-3
Verbal admissions at conference not used against defendant.
23A-15-1. Order for conference to consider preliminary matters--Defendant not represented by counsel.
Any time after the filing of an indictment or information a court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial. This section shall not be invoked in a case where a defendant is not represented by counsel.
Source: SL 1978, ch 178, § 204.
23A-15-2. Memorandum of matters agreed upon at conference.
At the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon.
Source: SL 1978, ch 178, § 204.
23A-15-3. Verbal admissions at conference not used against defendant.
No admissions made by a defendant or his attorney at a conference shall be used against him unless the admissions are reduced to writing and signed by the defendant and his attorney.
Source: SL 1978, ch 178, § 204.
23A-16-1
Concurrent state jurisdiction of offenses on Indian reservations within state.
23A-16-2
State jurisdiction of offense commenced outside state and consummated within state.
23A-16-3
(Rule 18) Right to speedy trial by impartial jury--Venue in county where offense
committed.
23A-16-4
Reserved.
23A-16-5
Proceedings taken within judicial circuit--Issues of fact determined within county--Circuit
judge orders in chambers.
23A-16-6
Repealed.
23A-16-7
Venue of offense commenced outside state.
23A-16-8
Venue of offense committed partly in one county and partly in another.
23A-16-9
Venue of offense on or near county boundary.
23A-16-10
Venue of offense on state boundary water--Change of venue.
23A-16-11
Venue of homicide prosecution in county where fatal injury inflicted.
23A-16-12
Venue when stolen property taken from one county to another.
23A-16-13
Venue of offense by sending letter from one county to another.
23A-16-14
Venue of offense by use of mails.
23A-16-15
Venue of prosecution of principal not present at commission of offense.
23A-16-16
Venue of prosecution of accessory where principal offense committed in another county.
23A-16-17
County seat municipality which lies in more than one county.
23A-16-18
Venue of prosecution of perjury.
23A-16-1. Concurrent state jurisdiction of offenses on Indian reservations within state.
Whenever any acts in violation of the penal laws of the United States committed by any person upon any Indian reservation within this state shall constitute a crime under any law of the State of South Dakota, concurrent jurisdiction is hereby expressly reserved to the State of South Dakota to arrest, prosecute, convict, and punish any person committing any offense under the laws of the State of South Dakota, even though the acts constituting such offense may also constitute an offense under the laws of the United States of America.
Source: SDC 1939, § 34.0502; SL 1951, ch 187; SDCL, § 23-9-6; SL 1978, ch 178, § 220.
23A-16-2. State jurisdiction of offense commenced outside state and consummated within state.
When the commission of a public offense commenced outside this state is consummated within this state, the defendant may be punished in this state, even if he were out of the state at the time of the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent or by any other means proceeding directly from himself.
Source: SDC 1939 & Supp 1960, § 34.0801; SDCL, § 23-9-10; SL 1978, ch 178, § 208.
23A-16-3. (Rule 18) Right to speedy trial by impartial jury--Venue in county where offense committed.
The accused has the right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.
Source: SDC 1939 & Supp 1960, § 34.2905 (5); SDCL, § 23-2-11; SL 1978, ch 178, § 205.
23A-16-5. Proceedings taken within judicial circuit--Issues of fact determined within county--Circuit judge orders in chambers.
All actions, special proceedings, motions, and applications of a criminal nature, arising under the laws of this state of which a circuit court has jurisdiction may be heard and determined at any place in the judicial circuit in which is situated the county where the same is brought or pending; but issues of fact in any criminal action must be tried in the county in which the same is brought or to which the place of trial is changed by order of court. Neither this section nor § 23A-45-11 shall prevent the judge of any circuit court from making an order in chambers at any place within the state in any criminal matter properly before him.
Source: SL 1887, ch 81, § 1; CL 1887, § 4828; RCCivP 1903, § 33; RC 1919, § 4654; SDC 1939 & Supp 1960, § 34.0401; SDCL, §§ 23-9-2, 23-9-3; SL 1978, ch 178, § 207.
23A-16-7. Venue of offense commenced outside state.
When a person commences an offense outside this state and consummates it within this state, and this state has jurisdiction of the offense pursuant to § 23A-16-2, the venue is in the county in which the offense is consummated.
Source: SDC 1939 & Supp 1960, § 34.0801; SDCL, § 23-9-10; SL 1978, ch 178, § 209.
23A-16-8. Venue of offense committed partly in one county and partly in another.
When a public offense is committed partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense occur in two or more counties, the venue is in either county.
Source: SDC 1939 & Supp 1960, § 34.0804; SDCL, § 23-9-17; SL 1978, ch 178, § 210.
23A-16-9. Venue of offense on or near county boundary.
When a public offense is committed on the boundary of two or more counties, or within five hundred yards thereof, the venue is in either county.
Source: SDC 1939 & Supp 1960, § 34.0804; SDCL, § 23-9-18; SL 1978, ch 178, § 211.
23A-16-10. Venue of offense on state boundary water--Change of venue.
When an offense is committed in this state on a boundary water between this state and another state, the venue is in any county which bounds on the body of water. Upon a showing of good cause, the court in which such prosecution is commenced may order the case transferred to any other county bounding on the body of water as is more appropriate under the general venue provisions of § 23A-16-5.
Source: SDC 1939 & Supp 1960, § 34.0805; SDCL, § 23-9-19; SL 1978, ch 178, § 214.
23A-16-11. Venue of homicide prosecution in county where fatal injury inflicted.
The venue of a prosecution for murder or manslaughter, when the injury which caused the death was inflicted in one county and the person injured dies in another county or out of state, is in the county where the injury was inflicted.
Source: SDC 1939 & Supp 1960, § 34.0809; SDCL, § 23-9-24; SL 1978, ch 178, § 218.
23A-16-12. Venue when stolen property taken from one county to another.
When property taken in one county by burglary or theft is brought into another, the venue of the offense is in either of the counties where the prosecution is first commenced.
Source: SDC 1939 & Supp 1960, § 34.0806; SDCL, § 23-9-20; SL 1978, ch 178, § 212.
23A-16-13. Venue of offense by sending letter from one county to another.
When the sending of a letter is made a public offense by the statutes of this state, the venue of the offense is in any county where the letter is deposited or delivered or where it is received by the person to whom it is addressed.
Source: SDC 1939, § 13.0107; SDCL, § 22-1-7; SL 1976, ch 158, § 1-6; SDCL Supp, § 23-9-17.1; SL 1978, ch 178, § 213.
23A-16-14. Venue of offense by use of mails.
Where the commission of a public offense involves the use of the mails, the venue of the offense is in any county where the letter is deposited or delivered, or where it is received by the person to whom it is addressed.
Source: SL 1978, ch 178, § 213-A.
23A-16-15. Venue of prosecution of principal not present at commission of offense.
The venue in the case of a principal in the commission of a public offense, who was not present at the commission of the offense, is in the same county in which it would be under this title if he had been present and aiding and abetting therein.
Source: SDC 1939 & Supp 1960, § 34.0807; SDCL, § 23-9-21; SL 1978, ch 178, § 215.
23A-16-16. Venue of prosecution of accessory where principal offense committed in another county.
In the case of an accessory in the commission of a public offense as defined in § 22-3-5, where the principal offense is committed in one county and the offense of the accessory is committed in another county, the venue is in either of the counties where the prosecution is first commenced.
Source: SDC 1939 & Supp 1960, § 34.0807; SDCL, § 23-9-22; SL 1978, ch 178, § 216.
23A-16-17. County seat municipality which lies in more than one county.
A county seat municipality which lies in more than one county is considered to be a district under the provisions of S.D. Const., Art. VI, § 7.
Source: SL 1984, ch 51.
23A-16-18. Venue of prosecution of perjury.
Perjury may be prosecuted in the circuit court for either the county where the proceeding or action is venued or where the act of perjury was committed.
Source: SL 2002, ch 113, § 2.
23A-17-1
(Rule 20(a)) Consent by defendant to waive trial and accept disposition in county where
arrested or held--Approval by prosecuting attorneys--Transmittal of papers.
23A-17-2
(Rule 20(b)) Reserved.
23A-17-3
(Rule 20(c)) Return of papers to original county when defendant pleads not guilty.
23A-17-4
(Rule 20(d)) Reserved.
23A-17-5
(Rule 21(a)) Change of county when fair trial impossible in original county.
23A-17-6
(Rule 21(b)) Change of county for convenience on consent of parties.
23A-17-7
(Rule 21(c)) Transmittal of papers on change of counties.
23A-17-8
(Rule 22) Time for motion to transfer.
23A-17-9
Costs and fees on transferred case paid by original county.
23A-17-1. (Rule 20(a)) Consent by defendant to waive trial and accept disposition in county where arrested or held--Approval by prosecuting attorneys--Transmittal of papers.
A defendant arrested, held, or present in a county other than that in which the indictment, information, or complaint is pending against him may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the county in which the indictment, information, or complaint is pending and to consent to disposition of the case in the county in which he was arrested, is held, or is present, subject to the approval of the prosecuting attorney for each county. Upon receipt of the defendant's statement and of the written approval of the prosecuting attorney, the clerk of the court or the court in which the indictment, information, or complaint is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court or court for the county in which the defendant is held and the prosecution shall continue in that county.
Source: SL 1978, ch 178, § 221.
23A-17-3. (Rule 20(c)) Return of papers to original county when defendant pleads not guilty.
If, after the proceeding has been transferred pursuant to § 23A-17-1, the defendant pleads not guilty, the clerk of the court or the court shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant's statement that he wishes to plead guilty or nolo contendere shall not be used against him without his consent.
Source: SL 1978, ch 178, § 223.
23A-17-5. (Rule 21(a)) Change of county when fair trial impossible in original county.
A court upon motion of a defendant shall transfer his proceedings to another county if the court is satisfied that there exists, in the county where the prosecution is pending, so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that county.
Source: SDC 1939 & Supp 1960, § 34.0817; SDCL, § 23-28-7; SL 1978, ch 178, § 225.
23A-17-6. (Rule 21(b)) Change of county for convenience on consent of parties.
Upon the consent of both parties and for the convenience of parties and witnesses, and in the interest of justice, a court may transfer proceedings or any one or more of the counts thereof to another county.
Source: SL 1978, ch 178, § 226.
23A-17-7. (Rule 21(c)) Transmittal of papers on change of counties.
When a transfer is ordered the clerk of courts of the original county shall transmit to the clerk of the court to which the proceeding is transferred all papers in the proceeding or duplicates thereof and any bail taken, and the prosecution shall continue in that county.
Source: SDC 1939 & Supp 1960, §§ 34.0818, 34.0819; SDCL, §§ 23-28-9, 23-28-10; SL 1978, ch 178, § 227.
23A-17-8. (Rule 22) Time for motion to transfer.
A motion to transfer under this title may be made at or before arraignment or at such other time as the court or this title may prescribe.
Source: SL 1978, ch 178, § 229.
23A-17-9. Costs and fees on transferred case paid by original county.
The payment of all costs and fees incurred as a result of a transfer and all subsequent proceedings shall be paid by the county where the prosecution was commenced.
Source: SL 1978, ch 178, § 228.
23A-18-1
(Rule 23(a)) Trial by jury unless waived by parties.
23A-18-2
(Rule 23(b)) Number of jurors--Stipulation for smaller jury.
23A-18-3
(Rule 23(c)) Findings of fact in trial without jury.
23A-18-1. (Rule 23(a)) Trial by jury unless waived by parties.
Cases required to be tried by a jury shall be so tried unless the defendant waives a jury trial in writing or orally on the record with the approval of the court and the consent of the prosecuting attorney.
Source: SL 1978, ch 178, § 230.
23A-18-2. (Rule 23(b)) Number of jurors--Stipulation for smaller jury.
Juries shall consist of twelve members but at any time before verdict the parties may stipulate in writing or orally on the record with the approval of the court that the jury shall consist of any number less than twelve.
Source: SDC 1939 & Supp 1960, § 34.3607; SL 1963, ch 227; SDCL, § 23-43-20; SL 1978, ch 178, § 231.
23A-18-3. (Rule 23(c)) Findings of fact in trial without jury.
In a case tried without a jury a court shall make a general finding and shall in addition, on request made before submission of the case to the court for decision, find facts specially. Such findings may be oral. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
Source: SL 1978, ch 178, § 232; SL 1979, ch 159, § 12.
CHAPTER 23A-19
THE JURY PANEL
23A-19-1 Panel defined.
23A-19-2 Challenge to panel defined.
23A-19-3 Grounds for challenge to panel--Bias of officer summoning additional jurors.
23A-19-4 Time for challenge to panel--Ground stated.
23A-19-5 Challenge to panel when several defendants tried together.
23A-19-6 Objection to challenge--Entry and trial.
23A-19-7 Trial of sufficiency of challenge--Trial of fact issues.
23A-19-8 Examination of officers on trial of challenge to panel.
23A-19-9 New jury on allowance of challenge to panel--Jury impaneled if challenge disallowed.
23A-19-10 Calling of jurors' names when case ready for trial--Attachment for absent jurors.
23A-19-11 Drawing of names of jurors.
23A-19-1. Panel defined.
A panel is a list of jurors drawn pursuant to chapter 16-13 to serve at a particular court or for the trial of a particular action.
Source: SDC 1939 & Supp 1960, § 34.3610; SDCL, § 23-43-9; SL 1978, ch 178, § 262.
23A-19-2. Challenge to panel defined.
A challenge to a panel is an objection made to all the trial jurors drawn, and may be taken by either party.
Source: SDC 1939 & Supp 1960, § 34.3610; SDCL, § 23-43-10; SL 1978, ch 178, § 263.
23A-19-3. Grounds for challenge to panel--Bias of officer summoning additional jurors.
A challenge to a panel may only be based on a material departure from the procedure prescribed by law for the drawing and return of the jury, or on the intentional omission of the board of jury selectors or sheriff to summon one or more of the jurors drawn. However, if the panel is composed of any persons who were summoned to serve as jurors pursuant to § 16-13-42, a challenge may be taken to the panel based upon the alleged bias of the officer who summoned them if such bias would be sufficient grounds for a challenge to an individual juror under § 23A-20-13.1. Such challenge must be determined in the same manner as if made to an individual juror for bias.
Source: SDC 1939 & Supp 1960, §§ 34.3611, 34.3612; SDCL, §§ 23-43-11, 23-43-14; SL 1978, ch 178, § 264; SL 2021, ch 86, § 4.
23A-19-4. Time for challenge to panel--Ground stated.
A challenge to a panel must be taken before a juror is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of challenge.
Source: SDC 1939 & Supp 1960, § 34.3611; SDCL, § 23-43-12; SL 1978, ch 178, § 265.
23A-19-5. Challenge to panel when several defendants tried together.
When several defendants are tried together, any individual defendant may challenge the panel, but if more than one defendant challenges the panel, the challenges must be tried together.
Source: SDC 1939 & Supp 1960, § 34.3611; SDCL, § 23-43-13; SL 1978, ch 178, § 266.
23A-19-6. Objection to challenge--Entry and trial.
An objection to a challenge need not be in writing, but must be entered upon the court minutes and thereupon the court must try the challenge.
Source: SDC 1939 & Supp 1960, § 34.3613; SDCL, § 23-43-15; SL 1978, ch 178, § 267.
23A-19-7. Trial of sufficiency of challenge--Trial of fact issues.
A court must first try the sufficiency of a challenge, assuming the facts alleged therein to be true. If the court determines that the facts alleged, if true, constitute sufficient grounds for challenge to the panel, the objecting party may then deny the facts alleged in the challenge. The denial may be oral and must be entered on the record. The court must then proceed to try the issue of fact.
Source: SDC 1939 & Supp 1960, § 34.3613; SDCL, §§ 23-43-15, 23-43-16; SL 1978, ch 178, § 268.
23A-19-8. Examination of officers on trial of challenge to panel.
Upon the trial of a challenge to the panel, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.
Source: SDC 1939 & Supp 1960, § 34.3613; SDCL, § 23-43-18; SL 1978, ch 178, § 269.
23A-19-9. New jury on allowance of challenge to panel--Jury impaneled if challenge disallowed.
If a challenge to a panel is allowed, the judge shall order a jury to be drawn and summoned in the regular manner. If it is disallowed, the court must direct the jury to be impaneled.
Source: SDC 1939 & Supp 1960, § 34.3614; SDCL, § 23-43-19; SL 1978, ch 178, § 270.
23A-19-10. Calling of jurors' names when case ready for trial--Attachment for absent jurors.
When a case is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachment issue against those who are absent; but the court may, in its discretion, wait for the return of the attachment.
Source: SDC 1939 & Supp 1960, § 34.3604; SDCL, § 23-43-2; SL 1978, ch 178, § 271.
23A-19-11. Drawing of names of jurors.
At the opening of court the clerk shall randomly draw the names of the persons summoned as jurors by an electronic process or prepare separate ballots, containing the names of the persons summoned as jurors and deposit the ballots in a suitable container.
If an electronic process is not used, the clerk shall, under the direction of the court, publicly draw out of the container the appropriate number of ballots to form the jury. Before the name of any juror is drawn, the container shall be closed and the contents shall be intermingled. The clerk shall then, without looking at the ballots, draw them from the container.
Source: SDC 1939 & Supp 1960, §§ 34.3605, 34.3606; SDCL, §§ 23-43-5, 23-43-6; SL 1978, ch 178, § 272; SL 2003, ch 115, § 3.
CHAPTER 23A-20
(RULE 24) THE TRIAL JURY
23A-20-1 Jurors summoned for civil actions used for criminal trials.
23A-20-2 Alternative methods of selecting jurors.
23A-20-3 Call of jurors equal to number required including challenges.
23A-20-4 Formation of trial jury as in civil actions.
23A-20-5 (Rule 24(a)) Reserved.
23A-20-6 Prospective jurors--Examination.
23A-20-7 Oath of panel members.
23A-20-7.1 Affirmation permitted in lieu of oath.
23A-20-8 Excuse and replacement of juror disqualified for cause--Challenges for cause on record.
23A-20-9 Kinds of challenge for cause--Taken by either party.
23A-20-10 Order of taking challenges for cause.
23A-20-11 Repealed by SL 1999, ch 284.
23A-20-12 Repealed by SL 1999, ch 285.
23A-20-13 Repealed by SL 1999, ch 286.
23A-20-13.1 Challenges for cause in criminal cases.
23A-20-14 Entry in minutes of challenge to individual juror.
23A-20-15 Objections to challenge of jurors--Denial of facts.
23A-20-16 Trial by court of challenges.
23A-20-17 Examination as witness of challenged juror--Evidence received.
23A-20-18 Allowance or disallowance of challenge to individual juror.
23A-20-19 Peremptory challenge defined--Either party.
23A-20-20 (Rule 24(b)) Number of peremptory challenges allowed.
23A-20-21 Additional challenges granted by court.
23A-20-22 Challenges allowed when more than one defendant.
23A-20-23 Time of motion for additional challenges.
23A-20-24 Alternative methods of exercising peremptory challenges.
23A-20-25 Alternating peremptory challenges.
23A-20-26 Peremptory challenges exercised as in civil trials.
23A-20-27 Trial jury constituted after peremptory challenges--Last jurors chosen as alternates.
23A-20-28 (Rule 24(c)) Impaneling of alternate jurors--Replacement of regular jurors--Qualifications and oaths.
23A-20-28.1 Additional methods of choosing alternate jurors.
23A-20-29 Grounds for excuse of juror during trial.
23A-20-30 Degree of kindred--Direct and collateral line--Descending and ascending direct line--Degrees in collateral line.
23A-20-1. Jurors summoned for civil actions used for criminal trials.
Jurors drawn and summoned for the trial of civil actions are also the jurors for the trial of criminal actions.
Source: SDC 1939 & Supp 1960, § 34.3604; SDCL, § 23-43-1; SL 1978, ch 178, § 233.
23A-20-2. Alternative methods of selecting jurors.
When prospective jurors are called for examination, the court shall allow selection by either § 23A-20-3 or 23A-20-4.
Source: SL 1978, ch 178, § 234.
23A-20-3. Call of jurors equal to number required including challenges.
When prospective jurors are called for examination, the court shall call to the jury box a number of prospective jurors equal to the number of jurors to be impaneled, the number of peremptory challenges allowed the parties, and number of alternates, if any.
Source: SL 1978, ch 178, § 235.
23A-20-4. Formation of trial jury as in civil actions.
Trial juries for criminal actions may be formed in the same manner as trial juries in § 15-14-10.
Source: SDC 1939 & Supp 1960, § 34.3604; SDCL, § 23-43-2; SL 1978, ch 178, § 236; Supreme Court Rule 97-39.
23A-20-6. Prospective jurors--Examination.
The defense attorney or the defendant, if appearing pro se, and the prosecuting attorney shall conduct examination of prospective jurors. Prior to the examination the court may conduct a general examination of the prospective jurors. The court may in its discretion allow examination of one or more jurors apart from the other jurors. If approved by the court, prospective jurors may be examined on whether the presence of a certified therapeutic dog to assist a child witness or a witness having a developmental disability would create undue sympathy for the witness or in any way serve as a prejudice to the defendant.
For purposes of this section, the terms, certified therapeutic dog, child witness, and developmental disability, have the meanings provided in § 23A-24-10.
Source: SL 1978, ch 178, § 238; SL 2020, ch 102, § 4.
23A-20-7. Oath of panel members.
All members of the panel shall swear or affirm that they will answer truthfully all questions concerning their qualifications by taking the following oath.
Do you swear or affirm that you will truthfully answer all questions asked of you by the court or counsel concerning your qualifications to sit as jurors on this case, so help you God?
Source: SL 1978, ch 178, § 239; SL 2007, ch 131, § 2.
23A-20-7.1. Affirmation permitted in lieu of oath.
Any person required to take an oath pursuant to §§ 15-14-11, 23A-5-7, 23A-20-7, and 23A-25-5.1, who, having conscientious scruples against oath-taking, shall be allowed to make affirmation. Such person may also substitute the words, "under pains and penalties of perjury," for the words "so help you God."
Source: SL 2007, ch 131, § 5.
23A-20-8. Excuse and replacement of juror disqualified for cause--Challenges for cause on record.
At any time that cause for disqualifying a juror appears, the court shall excuse him and call another member of the panel to take his place in the jury box and on the clerk's list of jurors. Challenges for cause may be made out of hearing of the jurors, but shall be made on the record.
Source: SL 1978, ch 178, § 242.
23A-20-9. Kinds of challenge for cause--Taken by either party.
A challenge for cause is an objection to a particular juror. It may be taken either by the state or a defendant.
Source: SDC 1939 & Supp 1960, § 34.3617; SDCL, § 23-43-29; SL 1978, ch 178, § 242; SL 1999, ch 282.
23A-20-10. Order of taking challenges for cause.
All challenges for cause to an individual juror must be taken, first by the defendant and then by the state, and each party must exhaust all his challenges for cause before the other begins.
If new jurors are called to the panel to replace jurors dismissed for cause, the procedure in this section shall be followed in exercising challenges for cause to the substituted jurors.
Source: SDC 1939 & Supp 1960, §§ 34.3622, 34.3623; SDCL, §§ 23-43-40, 23-43-42; SL 1978, ch 178, § 243; SL 1999, ch 283.
23A-20-13.1. Challenges for cause in criminal cases.
Challenges for cause may be taken on any of the following grounds:
(1) The prospective juror does not meet one of the qualifications required by § 16-13-10 or is disqualified under that section.
(2) The prospective juror is related by consanguinity or affinity within the sixth degree, as defined by § 23A-20-30 to the defendant, alleged victim or complainant.
(3) The prospective juror is a member of the family of the defendant, alleged victim or complainant or one of the attorneys in the case.
(4) The prospective juror has a relationship of guardian and ward, master and servant, employer and employee, landlord and tenant, or principal and agent with an attorney or the defendant, alleged victim or complainant in the case.
(5) The prospective juror is a partner or associate in business with an attorney or the defendant, alleged victim or complainant in the case.
(6) The prospective juror is a surety on a bond or an obligation with an attorney or the defendant, alleged victim or complainant in the case.
(7) The prospective juror, presently, has a relationship of attorney and client with one of the attorneys in the case or has had such a relationship within one year previously.
(8) The prospective juror is an officer, agent, or employee of a corporation, between which corporation and an attorney in the case, the relationship of attorney and client exists.
(9) The prospective juror is the spouse of an attorney in the case.
(10) The prospective juror is the spouse of any other prospective juror who would be subject to a challenge for cause under this section.
(11) The prospective juror has knowledge of some or all of the material facts of the case and has an unqualified opinion or belief as to the merits of the case.
(12) The prospective juror has a state of mind evincing enmity against, or bias to or against an attorney, the defendant, the prosecution, the alleged victim or complainant in the case.
(13) Within two years prior to being summoned, the prospective juror served as a juror in the county during a prior term of jury service pursuant to § 16-13-22.
(14) The prospective juror is a defendant in a criminal prosecution pending in the county.
(15) The prospective juror is a party adverse to the defendant in a civil action, or has complained against or been accused by the defendant in a criminal action.
(16) The prospective juror served on a grand jury that found the indictment, or on a coroner's jury that inquired into the death of a person whose death is the subject of the prosecution.
(17) The prospective juror served on a jury trial that tried another person for the offense charged in the indictment or information.
(18) The prospective juror was a member of a jury formerly sworn to try the indictment, information, or complaint, and whose verdict was set aside or which was discharged without a verdict.
(19) The prospective juror served as a juror in a civil action brought against the defendant for the act charged as an offense.
(20) If a talesman, the prospective juror applied directly or indirectly to a sheriff, deputy sheriff, or coroner of the county to be summoned for jury duty.
(21) A challenge for actual bias showing the existence of a state of mind on the part of a prospective juror, in reference to the case or to the defendant, the prosecution, alleged victim, or complainant that satisfies the court, in the exercise of sound discretion, that the juror cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.
Source: SL 1999, ch 287; SL 2002, ch 251, § 4.
23A-20-14. Entry in minutes of challenge to individual juror.
A challenge to an individual juror may be oral, but must be entered upon the minutes of the court.
Source: SDC 1939 & Supp 1960, § 34.3620; SDCL, § 23-43-36; SL 1978, ch 178, § 240.
23A-20-15. Objections to challenge of jurors--Denial of facts.
An adverse party or counsel may object to a challenge in the manner specified in §§ 23A-19-6 to 23A-19-9, inclusive, and the same proceedings must be had thereon, except that if an objection is allowed the juror must be excluded. An adverse party may also orally deny facts alleged as a ground for challenge.
Source: Supreme Court Rule 394, 1939; SDC 1939 & Supp 1960, § 34.3621; SDCL, § 23-43-37; SL 1978, ch 178, § 247.
23A-20-16. Trial by court of challenges.
All challenges, whether to a panel or to an individual juror, shall be tried by the court.
Source: Supreme Court Rule 394, 1939; SDC 1939 & Supp 1960, § 34.3621; SDCL, § 23-43-37; SL 1978, ch 178, § 247.
23A-20-17. Examination as witness of challenged juror--Evidence received.
When a challenge to an individual juror is tried, the juror challenged may be examined as a witness to prove or disprove the challenge, and is bound to answer every question pertinent to the inquiry therein. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.
Source: Supreme Court Rule 394, 1939; SDC 1939 & Supp 1960, § 34.3621; SDCL, § 23-43-38; SL 1978, ch 178, § 248.
23A-20-18. Allowance or disallowance of challenge to individual juror.
When a challenge to an individual juror is tried, the court must either allow or disallow the challenge and direct an entry accordingly upon the minutes.
Source: Supreme Court Rule 394, 1939; SDC 1939 & Supp 1960, § 34.3621; SDCL, § 23-43-39; SL 1978, ch 178, § 249.
23A-20-19. Peremptory challenge defined--Either party.
A peremptory challenge is an objection to a juror for which no reason need be given. It can be taken by either party and may be oral. A court must exclude a juror on a peremptory challenge.
Source: SDC 1939 & Supp 1960, § 34.3615; SDCL, § 23-43-27; SL 1978, ch 178, § 250.
23A-20-20. (Rule 24(b)) Number of peremptory challenges allowed.
If an offense charged is a Class A, Class B, Class C, or Class 1 felony, the prosecution and the defense each have twenty peremptory challenges. In all other felony cases, the prosecution and the defense each have ten peremptory challenges. In misdemeanor cases, the prosecution and the defense each have three peremptory challenges.
Source: SDC 1939 & Supp 1960, § 34.3616; SDCL § 23-43-28; SL 1978, ch 178, § 251; SL 1979, ch 159, § 13; SL 1981, ch 186, § 1; SL 2009, ch 124, § 1.
23A-20-21. Additional challenges granted by court.
For good cause shown, a court may grant such additional challenges as it, in its discretion, believes necessary and proper.
Source: SL 1978, ch 178, § 252.
23A-20-22. Challenges allowed when more than one defendant.
If there is more than one defendant a court may, upon good cause shown, allow the parties additional challenges and permit them to be exercised separately or jointly, as it, in its discretion, believes necessary and proper.
Source: SL 1978, ch 178, § 253.
23A-20-23. Time of motion for additional challenges.
A motion made pursuant to § 23A-20-21 or 23A-20-22 must be made at least one week in advance of the first scheduled trial date or within such other time as may be provided by the rules of the circuit court.
Source: SL 1978, ch 178, § 254.
23A-20-24. Alternative methods of exercising peremptory challenges.
If prospective jurors are called for examination pursuant to § 23A-20-3, the manner of exercising a peremptory challenge shall be as found in § 23A-20-25. If prospective jurors are called for examination pursuant to § 23A-20-4 the manner of exercising a peremptory challenge shall be as found in § 23A-20-26.
Source: SL 1978, ch 178, § 255.
23A-20-25. Alternating peremptory challenges.
Following examination of the jurors called for examination pursuant to § 23A-20-3, the parties, commencing with the prosecuting attorney, shall alternately exercise their peremptory challenges on the clerk's list. A peremptory challenge may not be waived.
Source: CCrimP 1877, § 342; CL 1887, § 7369; RCCrimP 1903, § 349; RC 1919, § 4867; SDC 1939 & Supp 1960, § 34.3622; SDCL, § 23-43-41; SL 1978, ch 178, § 256.
23A-20-26. Peremptory challenges exercised as in civil trials.
When prospective jurors are called for examination pursuant to § 23A-20-4, peremptory challenges shall be exercised in the same manner prescribed in § 15-14-10.
Source: SL 1978, ch 178, § 257; Supreme Court Rule 97-40.
23A-20-27. Trial jury constituted after peremptory challenges--Last jurors chosen as alternates.
The persons remaining after both parties have exercised their peremptory challenges constitute the jurors for the trial. The jurors remaining who were last called under § 23A-20-3, 23A-20-4, or 23A-20-8 to make up the full jury box shall be the alternate jurors.
Source: SL 1978, ch 178, § 258.
23A-20-28. (Rule 24(c)) Impaneling of alternate jurors--Replacement of regular jurors--Qualifications and oaths.
A court may direct that not more than six jurors in addition to the regular jury members be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they were called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be disqualified, discharged, or unable to perform their duties. Alternate jurors shall be drawn at the same time and in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities, and privileges as regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.
Source: SL 1923, ch 150; SL 1929, ch 100; SDC 1939 & Supp 1960, § 34.3607; SL 1963, ch 227; SDCL, §§ 23-43-21, 23-43-22; SL 1978, ch 178, § 259; SL 1979, ch 159, § 49.
23A-20-28.1. Additional methods of choosing alternate jurors.
In addition to the method of choosing or seating an alternate juror provided by §§ 23A-20-27 and 23A-20-28, the judge may choose the alternate jurors by lot, or by such other means as the parties agree on the record.
Source: Supreme Court Rule 1997-38.
23A-20-29. Grounds for excuse of juror during trial.
If, before the jury retires, a juror or alternate or a member of his immediate family dies, or if he or a member of his immediate family becomes ill, or upon other good cause shown to the court, the court may order him discharged.
Source: SDC 1939 & Supp 1960, § 34.3607; SL 1963, ch 227; SDCL, § 23-43-24; SL 1978, ch 178, § 260; SL 1979, ch 159, § 50.
23A-20-30. Degree of kindred--Direct and collateral line--Descending and ascending direct line--Degrees in collateral line.
The degree of kindred is established by the number of generations, and each generation is called a degree. The series of degrees form the line; the series of degrees between persons who descend from one another is called direct or lineal consanguinity; and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity.
The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestor with those who descend from that ancestor. The second is that which connects a person with those from whom that person descends. In the direct line there are as many degrees as there are generations. Thus the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons.
In the collateral line the degrees are counted by generations from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the person whose consanguinity or affinity is being determined is excluded, the relative included, and the ancestor counted but once. Thus brothers are related in the second degree, uncle and nephew in the third degree, cousins germane in the fourth degree, and so on.
Source: SL 1998, ch 148, § 3.
23A-21-1
Disqualification as in civil actions.
23A-21-2
Magistrate pro tempore to replace magistrate disqualified for bias or prejudice.
23A-21-3
(Rule 25(a)) Replacement of judge disabled during jury trial.
23A-21-4
(Rule 25(b)) Assignment to replace judge disabled after verdict or conviction--New trial.
23A-21-1. Disqualification as in civil actions.
A judge or magistrate may be disqualified in the manner specified in chapter 15-12.
Source: SL 1943, ch 131; SDC Supp 1960, § 34.1404-1; SDCL, § 23-27-10; SL 1978, ch 178, § 276.
23A-21-2. Magistrate pro tempore to replace magistrate disqualified for bias or prejudice.
If a defendant or prosecuting attorney in a criminal action prosecuted by information or complaint in a magistrate court makes an affidavit that he cannot have an impartial trial by reason of the bias or prejudice of the magistrate, the presiding circuit judge of the circuit in which the magistrate court is situated shall appoint a magistrate pro tempore for the trial of such action. The magistrate pro tempore shall preside at the trial and do any other act with reference thereto, as though he were the presiding magistrate of that magistrate court.
Source: SL 1978, ch 178, § 277.
23A-21-3. (Rule 25(a)) Replacement of judge disabled during jury trial.
If by reason of death, sickness, or other disability a judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge in the circuit, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.
Source: SL 1978, ch 178, § 274.
23A-21-4. (Rule 25(b)) Assignment to replace judge disabled after verdict or conviction--New trial.
If by reason of absence, death, sickness, or other disability a judge before whom a defendant has been tried is unable to perform the duties to be performed by a court after a verdict or finding of guilt, any other judge assigned by the Chief Justice of the Supreme Court of South Dakota to the court may perform those duties. If the other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
Source: SL 1978, ch 178, § 275.
23A-22-1
(Rule 26) Reserved.
23A-22-2
Civil rules applicable except as provided.
23A-22-3
Innocence presumed--Reasonable doubt requires acquittal.
23A-22-4
Facts put in issue by not guilty plea.
23A-22-5
Burden of proof as to mitigation or excuse in homicide prosecution.
23A-22-6
Defendant's right to testify--No presumption from failure to testify.
23A-22-7
Discharge of defendant to testify against codefendant.
23A-22-8
Corroboration of accomplice's testimony required for conviction.
23A-22-9
(Rule 26.1) Notice of issue concerning law of foreign country--Sources considered--Determination as question of law.
23A-22-10
(Rule 27) Proof of official record or lack of record.
23A-22-11
(Rule 28) Appointment and compensation of interpreter.
23A-22-12
Dying declarations defined--Admissibility in homicide prosecutions--Admissibility
for defense.
23A-22-13
Overt acts required for conspiracy conviction.
23A-22-14
Proof of incorporation of bank not required in forgery or counterfeiting prosecution--Expert testimony as to forgery or counterfeiting.
23A-22-15, 23A-22-15.1. Repealed.
23A-22-16
Proof of marriages in bigamy prosecutions.
23A-22-17
View of place of offense by jury--Protection of jury from unlawful communication.
23A-22-2. Civil rules applicable except as provided.
The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this title.
Source: Supreme Court Rule 399, 1939; SDC 1939 & Supp 1960, § 34.3631; SDCL, § 23-44-9; SL 1978, ch 178, § 279.
23A-22-3. Innocence presumed--Reasonable doubt requires acquittal.
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.
Source: SDC 1939 & Supp 1960, § 34.3635; SDCL, § 23-44-5; SL 1978, ch 178, § 281.
23A-22-4. Facts put in issue by not guilty plea.
A plea of not guilty puts in issue every material fact constituting an offense charged in an indictment, information, or complaint.
Source: Supreme Court Rule 390, 1939; SDC 1939 & Supp 1960, § 34.3521; SDCL, § 23-35-23; SL 1978, ch 178, § 280.
23A-22-5. Burden of proof as to mitigation or excuse in homicide prosecution.
In prosecutions for murder, after the prosecution has proved that a defendant committed the homicide, the burden of proving circumstances of mitigation, or that justify or excuse it, passes to the defendant, unless the proof of the prosecution shows that the crime committed only amounts to manslaughter or that the defendant was justified or excused.
Source: Supreme Court Rule 402, 1939; SDC 1939 & Supp 1960, § 34.3642; SDCL, § 23-44-15; SL 1978, ch 178, § 289.
23A-22-6. Defendant's right to testify--No presumption from failure to testify.
In a trial of all indictments, informations, complaints, and other proceedings before any court or magistrate, against persons charged with the commission of any crime, the person charged shall, at his own request, but not otherwise, be a competent witness. His failure to make such request does not create any presumption against him.
Source: SDC 1939 & Supp 1960, § 34.3633; SDCL, § 23-44-1; SL 1978, ch 178, § 282.
23A-22-7. Discharge of defendant to testify against codefendant.
When two or more persons are included in the same indictment or information, a court may on the application of the prosecuting attorney, at any time before the defendants have gone into their defense, direct any defendant to be discharged from the indictment or information, in order that he may be a witness for the prosecution.
Source: SDC 1939 & Supp 1960, § 34.3626; SDCL, § 23-44-7; SL 1978, ch 178, § 290.
23A-22-8. Corroboration of accomplice's testimony required for conviction.
A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
Source: SDC 1939 & Supp 1960, § 34.3636; SDCL, § 23-44-10; SL 1978, ch 178, § 284.
23A-22-9. (Rule 26.1) Notice of issue concerning law of foreign country--Sources considered--Determination as question of law.
A party who intends to raise an issue concerning the law of a foreign country shall give reasonable written notice. A court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under rules of evidence. The court's determination shall be treated as a ruling on a question of law.
Source: SL 1978, ch 178, § 293.
23A-22-10. (Rule 27) Proof of official record or lack of record.
An official record or any entry therein or the lack of such a record may be proved in the same manner as in civil actions.
Source: SL 1978, ch 178, § 294.
23A-22-11. (Rule 28) Appointment and compensation of interpreter.
A court may appoint an interpreter or translator of its own selection and may set reasonable compensation for him.
Source: SL 1978, ch 178, § 296.
23A-22-12. Dying declarations defined--Admissibility in homicide prosecutions--Admissibility for defense.
Dying declarations are statements of material facts concerning the cause and circumstances constituting the res gestae of any felony made by the victim voluntarily while not mentally ill and under the fixed and solemn belief that his death is inevitable and near at hand.
In all prosecutions for manslaughter or murder, all dying declarations are always admissible in evidence, if the deceased would have been a competent witness if living.
All such declarations are also admissible in behalf of the defense.
Source: SDC 1939 & Supp 1960, § 34.3632; SDCL, § 23-44-4; SL 1975, ch 169, § 7; SL 1976, ch 324; SL 1978, ch 178, § 283.
23A-22-13. Overt acts required for conspiracy conviction.
In prosecutions for conspiracy in a case where an overt act is necessary to constitute the offense, a defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, and unless one or more of the acts alleged are proved, but any other overt act, not alleged in the indictment or information, may be received as evidence.
Source: SDC 1939 & Supp 1960, § 34.3637; SDCL, § 23-44-12; SL 1978, ch 178, § 285.
23A-22-14. Proof of incorporation of bank not required in forgery or counterfeiting prosecution--Expert testimony as to forgery or counterfeiting.
In prosecutions for forging a bill or note of an incorporated company or bank, or for passing or attempting to pass, or having in possession with intent to pass, any such forged bill or note, it is not necessary to prove the incorporation of the bank or company by its charter or act of incorporation, but it may be proved by general reputation, and persons of skill are competent witnesses to prove that such bill or note is forged or counterfeited.
Source: Supreme Court Rule 401, 1939; SDC 1939 & Supp 1960, § 34.3641; SDCL, § 23-44-14; SL 1978, ch 178, § 286.
23A-22-16. Proof of marriages in bigamy prosecutions.
In prosecutions for bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but they may be proved by such evidence as is admissible to prove a marriage in other cases, and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.
Source: Supreme Court Rule 400, 1939; SDC 1939 & Supp 1960, § 34.3640; SDCL, § 23-44-11; SL 1978, ch 178, § 288.
23A-22-17. View of place of offense by jury--Protection of jury from unlawful communication.
When, in the opinion of a court, it is proper that a jury should view the place where an offense is alleged to have been committed, or where any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the court for that purpose. The officers must be sworn to prevent any person from speaking to or communicating with the jury, and not to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay or at a specified time.
Source: SDC 1939 & Supp 1960, § 34.3648; SDCL, § 23-44-18; SL 1978, ch 178, § 292.
23A-23-1
(Rule 29(a)) Motion for directed verdict abolished--Judgment of acquittal entered with or
without motion on close of evidence for either side--Defendant's right to offer evidence
after denial of motion.
23A-23-2
(Rule 29(b)) Reservation of decision on motion made at close of trial--Time of ruling.
23A-23-3
(Rule 29(c)) Motion made after discharge of jury--Setting aside guilty verdict--Prior
motion not required.
23A-23-4
Renewal of motion not required for review on appeal.
23A-23-1. (Rule 29(a)) Motion for directed verdict abolished--Judgment of acquittal entered with or without motion on close of evidence for either side--Defendant's right to offer evidence after denial of motion.
Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. A court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more offenses charged in an indictment or information after the evidence on either side is closed, if the evidence is insufficient to sustain a conviction of the offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the prosecuting attorney is not granted, the defendant may offer evidence without having reserved the right.
Source: SDC 1939 & Supp 1960, § 34.3650; SDCL, § 23-45-5; SL 1978, ch 178, § 297.
23A-23-2. (Rule 29(b)) Reservation of decision on motion made at close of trial--Time of ruling.
If a motion for judgment of acquittal is made at the close of all the evidence, a court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
Source: SL 1978, ch 178, § 298.
23A-23-3. (Rule 29(c)) Motion made after discharge of jury--Setting aside guilty verdict--Prior motion not required.
If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within ten days after the jury is discharged or within such further time as the court may fix during the ten-day period. If a verdict of guilty is returned a court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned a court may enter judgment of acquittal. In order to make such a motion it is not necessary to have made a similar motion prior to the submission of the case to the jury.
Source: SL 1978, ch 178, § 299.
23A-23-4. Renewal of motion not required for review on appeal.
Once a motion for judgment of acquittal is made it need not be renewed to be reviewed on appeal.
Source: SL 1978, ch 178, § 300.
CHAPTER 23A-24
CONDUCT OF TRIAL
23A-24-1 23A-24-1. (Rule 29.1) Reserved
23A-24-2 Order of proceedings at trial.
23A-24-3 Departure from order of proceedings for good cause.
23A-24-4 Separation or segregation of jurors before submission of case--Oath of officers in charge of jury.
23A-24-5 Admonition to jurors on each adjournment of court.
23A-24-6 Minor's testimony as to sexual offense involving child--Open only to certain persons--Exception for grand jury proceedings.
23A-24-7 Removal of victim and parent or guardian from courtroom.
23A-24-8 Victim unable to attend trial or hearing--Selection of representative.
23A-24-9 Failure of victim to exercise rights not grounds for appeal, reversal or remand.
23A-24-10 Certified therapeutic dogs--Definitions.
23A-24-11 Introduction of certified therapeutic dog--Motion--Contents.
23A-24-12 Certified handlers--Limitations.
23A-24-2. Order of proceedings at trial.
After a jury has been impaneled and sworn, a trial must proceed in the following order:
(1) If the indictment or information is for a felony, the clerk or prosecuting attorney must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with;
(2) The prosecuting attorney or other counsel for the state must make an opening statement and offer the evidence in support of the indictment or information;
(3) The defendant or his counsel may then open his defense and offer his evidence in support thereof. However, the defendant or his counsel may make his opening statement immediately after the prosecuting attorney's opening statement;
(4) The parties may then, respectively, offer rebutting evidence only, unless the court, for good reason, in furtherance of justice or to correct an evident oversight, permits them to offer evidence upon their original case;
(5) The judge must then charge the jury; he may state the issues and must declare the law, but must not instruct the jury in respect to matters of fact; and except as otherwise specially provided in this title all instructions and requests for instructions shall be governed by the law relating thereto in civil actions, except that all requests for instructions must be made before argument to the jury is begun and all objections to the giving or refusing of any instructions must be taken and called to the attention of the court before the jury retires, unless the court shall otherwise direct; and
(6) When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the prosecuting attorney shall open and the defendant or his counsel shall follow; then the prosecuting attorney shall conclude the argument to the jury.
Source: Supreme Court Rule 396, 1939; SDC 1939 & Supp 1960, § 34.3627; SDCL, § 23-42-6; SL 1978, ch 178, § 302.
23A-24-3. Departure from order of proceedings for good cause.
When the state of the pleadings requires it or in any case for good reasons and in the sound discretion of the court, the order of trial and argument prescribed in § 23A-24-2 may be departed from.
Source: Supreme Court Rule 396, 1939; SDC 1939 & Supp 1960, § 34.3627; SDCL, § 23-42-7; SL 1978, ch 178, § 303.
23A-24-4. Separation or segregation of jurors before submission of case--Oath of officers in charge of jury.
At any time before the submission of a case to the jury, a court, in its discretion, may allow the jurors to separate or shall have them kept in charge of proper officers who must be sworn to keep the jurors together until the next meeting of the court, to allow no person (including the officers themselves) to communicate with the jurors on any subject connected with the trial, and to return the jurors to court at the time directed by the court.
Source: SDC 1939 & Supp 1960, § 34.3647; SDCL, § 23-43-44; SL 1978, ch 178, § 304.
23A-24-5. Admonition to jurors on each adjournment of court.
Jurors shall, at each adjournment of court, whether permitted to separate or kept in charge of officers, be admonished by the court as follows: You are reminded that you are not to discuss any aspect of this case among yourselves or with anyone else and that you should not form or express any opinion on the case until it is given to you for decision.
Source: Supreme Court Rule 403, 1939; SDC 1939 & Supp 1960, § 34.3649; SDCL § 23-43-45; SL 1978, ch 178, § 305; SL 2007, ch 149, § 1.
23A-24-6. Minor's testimony as to sexual offense involving child--Open only to certain persons--Exception for grand jury proceedings.
Any portion of criminal proceedings, with the exception of grand jury proceedings, at which a minor is required to testify concerning rape of a child, sexual contact with a child, child abuse involving sexual abuse, or any other sexual offense involving a child may be closed to all persons except the parties' attorneys, the victim or witness assistant, the victim's parents or guardian, and officers of the court and authorized representatives of the news media, unless the court, after proper hearing, determines that the minor's testimony should be closed to the news media or the victim's parents or guardian in the best interest of the minor.
Source: SL 1983, ch 211, § 1; SL 1986, ch 193, § 1.
23A-24-7. Removal of victim and parent or guardian from courtroom.
The victim of a crime and his parent or guardian may not be excluded from a courtroom due to a request which is made pursuant to § 19-19-615. However, a judge may remove a victim and his parent or guardian from a trial or hearing or any portion of the trial or hearing for the same causes and in the same manner as the rules of court or law provide for the exclusion or removal of the defendant.
Source: SL 1986, ch 193, § 3.
23A-24-8. Victim unable to attend trial or hearing--Selection of representative.
If a victim is unable to attend the trial or hearing or any portion of the trial or hearing due to death; disability; hardship; incapacity; physical, mental, or emotional condition or age, the victim, the victim's parent or guardian, or the victim's immediate family may select a representative to exercise the rights granted to the victim by §§ 19-19-615, 23A-5-11, and 23A-24-6 to 23A-24-9, inclusive.
Source: SL 1986, ch 193, § 5; SL 2021, ch 108, § 1.
23A-24-9. Failure of victim to exercise rights not grounds for appeal, reversal or remand.
If a victim fails to exercise any right granted by §§ 19-19-615, 23A-5-11, and 23A-24-6 to 23A-24-9, inclusive, 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 1986, ch 193, § 6.
23A-24-10 . Certified therapeutic dogs--Definitions.
In any criminal proceeding, upon motion of any party as provided in § 23A-24-11, the court may enter any order necessary to allow a child witness or a witness having a developmental disability to be accompanied by a certified therapeutic dog during the witness' testimony in the manner provided in § 23A-24-12.
Terms used in §§ 23A-24-10 to 23A-24-12, inclusive, mean:
(1) "Certified therapeutic dog," a dog that has received the requisite training or certification and is registered with Therapy Dogs Incorporated, Therapy Dogs International, Assistance Dogs International, or an equivalent organization to perform the duties associated with therapy dogs in places such as hospitals, nursing homes, and other facilities where the emotional benefits of therapy dogs are recognized;
(2) "Certified handler," a person who has received training and is registered with Therapy Dogs Incorporated, Therapy Dogs International, Assistance Dogs International, or an equivalent organization for offering the person's animal for assistance purposes and has received additional training on the protocols and policies of courts, the expected roles of the person's animal assistance team, and the expected interaction so as not to interfere with the collection of evidence or the effective administration of justice;
(3) "Child witness," a person who has been or will be called to testify in a criminal proceeding and is under the age of eighteen; and
(4) "Developmental disability," the meaning provided in § 27B-1-18 .
Source: SL 2020, ch 102, § 1.
23A-24-11 . Introduction of certified therapeutic dog--Motion--Contents.
Before the introduction of a certified therapeutic dog into the courtroom, the party desiring to utilize the presence of a certified therapeutic dog shall, outside the presence of the jury, file a motion containing the following information:
(1) The credentials of the certified therapeutic dog;
(2) The credentials of the certified handler;
(3) That the certified therapeutic dog is adequately insured;
(4) That a basic relationship has been established between the child witness, or the witness having a developmental disability, and the certified therapeutic dog in anticipation of testimony;
(5) That the certified therapeutic dog is capable of sitting quietly for extended periods of time; and
(6) That the presence of the certified therapeutic dog may reduce anxiety experienced by the child witness or the witness having a developmental disability while testifying in the criminal trial or hearing.
Source: SL 2020, ch 102, § 2.
23A-24-12 . Certified handlers--Limitations.
If the court grants a motion pursuant to § 23A-24-11 , the certified handler may accompany the certified therapeutic dog to the witness stand with the child witness or the witness having a developmental disability and remain with the certified therapeutic dog for the duration of the witness' testimony without interfering with any juror's view of the witness. The certified handler may either sit to the side of the witness stand or behind the witness stand.
Source: SL 2020, ch 102, § 3.
CHAPTER 23A-25
JURY INSTRUCTIONS AND DELIBERATIONS
23A-25-1 23A-25-1. (Rule 30) Reserved
23A-25-2 Duty to receive law laid down by court.
23A-25-3 Statements of law included in charge--Exclusive judges of fact.
23A-25-3.1 Instruction on presumption of innocence required.
23A-25-3.2 Jury instructions--Certified therapeutic dogs.
23A-25-4 Preparation and settlement of instructions--Reading to jury--Comment during argument--Filing and endorsement of requested instructions.
23A-25-5 Officers sworn to protect privacy of jury--Overnight sequestration or separation--Prevention of communication--Return to court on reaching verdict.
23A-25-5.1 Oath of officers to protect privacy of jury.
23A-25-6 Retirement for deliberation--Room provided--Food and lodging during deliberation.
23A-25-7 Evidence and instructions kept by jury during deliberation.
23A-25-8 Request by jury for further instructions--Notice to and presence of parties.
23A-25-9 Discharge of jury on disability of member--Exception.
23A-25-10 Jury not discharged until verdict rendered--Exceptions.
23A-25-11 New trial when jury discharged before verdict.
23A-25-12 Court open for other business during jury deliberations--Discharge of jury by final adjournment.
23A-25-13 Guilty but mentally ill verdict--Forms furnished--Instructions.
23A-25-2. Duty to receive law laid down by court.
Although jurors have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law that which is laid down as such by the court.
Source: SDC 1939 & Supp 1960, § 34.3629; SDCL, § 23-44-21; SL 1978, ch 178, § 308.
23A-25-3. Statements of law included in charge--Exclusive judges of fact.
In charging jurors, a court must state to them all matters of law which it deems necessary for their information in giving their verdict. It must also inform the jurors that they are the exclusive judges of all questions of fact.
Source: Supreme Court Rule 404, 1939; SDC 1939 & Supp 1960, § 34.3651; SDCL, § 23-45-1; SL 1978, ch 178, § 309.
23A-25-3.1. Instruction on presumption of innocence required.
In each criminal case, the judge shall instruct the jury that the defendant is presumed innocent.
Source: SL 1984, ch 179.
23A-25-3.2 . Jury instructions--Certified therapeutic dogs.
If a certified therapeutic dog has been utilized during a criminal trial, the judge shall present a jury instruction designed to prevent prejudice for or against any party.
For purposes of this section, the term, certified therapeutic dog, has the meaning provided in § 23A-24-10 .
Source: SL 2020, ch 102, § 5.
23A-25-4. Preparation and settlement of instructions--Reading to jury--Comment during argument--Filing and endorsement of requested instructions.
All requested instructions shall be prepared and presented by the parties and handled and settled by the court in accordance with the provisions of § 15-6-51. Instructions shall be settled out of the presence of the jury at the close of the evidence but prior to final argument. Before final argument the court shall read its instructions to the jury and shall furnish a copy to each of the parties. The instructions may be read to the jury and commented upon by counsel during the argument. They shall be taken by the jury when it retires. All instructions requested by the parties, or given by the court, shall be filed with the clerk and, with the endorsement thereon indicating the action of the court, shall be a part of the record of the case.
Source: SL 1978, ch 178, § 307.
23A-25-5. Officers sworn to protect privacy of jury--Overnight sequestration or separation--Prevention of communication--Return to court on reaching verdict.
Before the jurors retire for deliberation, one or more officers shall be sworn to keep the jurors together in some private and convenient place, with such suitable food and drink as the court shall direct. The court may, in its discretion, either sequester the jurors during the adjournment of court overnight, under supervision of such officers, or allow the jurors to separate overnight during the adjournment of the court without supervision after proper admonishment. While supervising the jurors, the officers may not permit any person (including themselves) to communicate with the jurors or to ask whether the jurors have agreed upon a verdict except by order of court. The officers shall return the jurors into court when the jury has agreed upon a verdict.
Source: SDC 1939, § 34.3652; SL 1955, ch 130; SDCL, § 23-43-46; SL 1978, ch 178, § 312; SL 2003, ch 135, § 1.
23A-25-5.1. Oath of officers to protect privacy of jury.
Before any officer may enter upon duties pursuant to § 23A-25-5, the following oath shall be administered to each officer: Do you solemnly swear or affirm that you will take this jury to a private and convenient place, that you will not allow any person, including yourself, to communicate with the jurors except by order of the court, until they have reached a verdict, and that when a verdict has been reached you will return them into the court, so help you God?
Source: SL 2007, ch 131, § 4.
23A-25-6. Retirement for deliberation--Room provided--Food and lodging during deliberation.
After hearing the charge, the jury shall retire for deliberation. A suitable room, equipped for such purpose, must be provided by each county for the use of a jury upon its retirement for deliberation. While a jury is kept together, either during the progress of a trial or after its retirement for deliberation, the jurors must be provided with suitable and sufficient food and lodging by the bailiff upon an order of court, at the expense of the county.
Source: SDC 1939 & Supp 1960, § 34.3653; SDCL, § 23-43-47; SL 1978, ch 178, §§ 311, 313.
23A-25-7. Evidence and instructions kept by jury during deliberation.
Upon retiring for deliberation, a jury may take all exhibits and all papers which have been received as evidence in the case. Copies may be substituted for original documents when, in the opinion of a court, such documents should not be taken from the person possessing them. A jury must also take the instructions of the court.
Source: SDC 1939 & Supp 1960, § 34.3654; SDCL, § 23-45-2; SL 1978, ch 178, § 314.
23A-25-8. Request by jury for further instructions--Notice to and presence of parties.
After jurors have retired for deliberation, if there is a disagreement among them as to any part of the testimony or if they desire to be informed upon a point of law arising in the case, they shall ask the officer having them in charge to convey their written request to the court. Any information allowed by the court must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, and must be taken down by the court reporter.
Source: SDC 1939 & Supp 1960, § 34.3655; SDCL, § 23-45-3; SL 1978, ch 178, § 315.
23A-25-9. Discharge of jury on disability of member--Exception.
If, after the retirement of a jury, one of them becomes so sick as to prevent the continuance of his duty, or any other accident or cause occurs to prevent its being kept together for deliberation, it may be discharged, except as provided in § 23A-18-2.
Source: SDC 1939 & Supp 1960, § 34.3656; SDCL, § 23-43-48; SL 1978, ch 178, § 316.
23A-25-10. Jury not discharged until verdict rendered--Exceptions.
Except as provided in § 23A-25-9, a jury cannot be discharged after a case is submitted to it until its members have agreed upon their verdict and rendered it in open court, except by the consent of both parties entered on the record, or unless at the expiration of such time as the court deems proper, it satisfactorily appears that there is no reasonable probability that the jurors can agree.
Source: SDC 1939 & Supp 1960, § 34.3657; SDCL, § 23-43-49; SL 1978, ch 178, § 317.
23A-25-11. New trial when jury discharged before verdict.
In all cases where a jury is discharged or prevented from giving a verdict, by reason of an accident or other cause except where the defendant is discharged during the progress of the trial or after the case is submitted to them, the case may be again tried at the same or another term, as the court may direct.
Source: SDC 1939 & Supp 1960, § 34.3658; SDCL, § 23-42-9; SL 1978, ch 178, § 318.
23A-25-12. Court open for other business during jury deliberations--Discharge of jury by final adjournment.
While a jury is absent a court may adjourn from time to time to conduct other business, but it is nevertheless deemed open for every purpose connected with a case submitted to a jury until a verdict is rendered or the jury is discharged. Final adjournment of a court discharges the jury.
Source: SDC 1939 & Supp 1960, § 34.3659; SDCL, § 23-45-4; SL 1978, ch 178, § 319.
23A-25-13. Guilty but mentally ill verdict--Forms furnished--Instructions.
If a defense of insanity or mental illness has been presented during a trial, the court shall provide the jury with a special verdict form of "guilty but mentally ill" for each offense. The court shall instruct the jury that a special verdict of "guilty but mentally ill" may be returned instead of a general verdict. The court shall also instruct the jury that the special verdict requires a finding beyond a reasonable doubt by the jury that the defendant committed the offense but that he was mentally ill at the time he committed the offense.
Source: SL 1983, ch 174, § 13; SL 1988, ch 191.
23A-26-1
(Rule 31(a)) Unanimous verdict required--Return in open court.
23A-26-2
(Rule 31(b)) Return of verdict as to one of two or more defendants--Retrial of defendants
as to whom verdict not reached.
23A-26-3
General verdict required--Special verdict permitted.
23A-26-4
Form of general verdict on not guilty plea.
23A-26-5
Form of verdict acquitting for insanity.
23A-26-6
Direction to reconsider improper verdict.
23A-26-7
Verdict as to degree of crime--Lowest degree found on reasonable doubt.
23A-26-8
(Rule 31(c)) Conviction of included offense or attempt.
23A-26-9
Appearance of defendant--When required for verdict.
23A-26-10
(Rule 31(d)) Polling of jury after verdict returned--Further deliberation or discharge if not
unanimous.
23A-26-11
Recording of verdict--Inquiry of jury.
23A-26-12
Remand to custody on verdict of guilty or guilty but mentally ill--Commitment hearing on
acquittal for insanity.
23A-26-12.1
Mental examination and report before hearing.
23A-26-12.2
Hearing.
23A-26-12.3
Burden of proof.
23A-26-12.4
Commitment--Duration.
23A-26-12.5
Release--Procedure--Compliance with prescribed regimen as condition.
23A-26-12.6
Failure to comply with regimen--Notice--Arrest--Court determination.
23A-26-13
(Rule 31(e)) Reserved.
23A-26-14
Guilty but mentally ill verdict--Required findings.
23A-26-1. (Rule 31(a)) Unanimous verdict required--Return in open court.
A jury verdict shall be unanimous. It shall be returned by the jury to the judge or magistrate in open court. When the jurors appear, they must be asked by the court or the clerk whether they have agreed upon their verdict. If the foreman answers in the affirmative, they must, on being required, declare the same.
Source: SDC 1939 & Supp 1960, § 34.3660; SDCL, § 23-45-8; SL 1978, ch 178, § 320.
23A-26-2. (Rule 31(b)) Return of verdict as to one of two or more defendants--Retrial of defendants as to whom verdict not reached.
If there are two or more defendants, a jury at any time during its deliberation may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed. If a jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.
Source: SDC 1939 & Supp 1960, § 34.3670; SDCL, § 23-45-24; SL 1978, ch 178, § 326.
23A-26-3. General verdict required--Special verdict permitted.
Except as provided in this section, jurors shall render a general verdict. Special verdicts are hereby abolished, except the verdicts of "guilty but mentally ill" and "not guilty by reason of insanity."
Source: Supreme Court Rule 405, 1939; SDC 1939 & Supp 1960, § 34.3661; SDCL, § 23-45-9; SL 1978, ch 178, § 321; SL 1983, ch 174, § 14.
23A-26-4. Form of general verdict on not guilty plea.
A general verdict on a plea of not guilty is either "guilty" or "not guilty" which imports a conviction or acquittal of the offense charged.
Source: Supreme Court Rule 406, 1939; SDC 1939 & Supp 1960, § 34.3662; SDCL, § 23-45-10; SL 1978, ch 178, § 322.
23A-26-5. Form of verdict acquitting for insanity.
If a defendant is acquitted because he was insane when he committed the offense charged, the verdict shall be "not guilty by reason of insanity."
Source: Supreme Court Rule 406, 1939; SDC 1939 & Supp 1960, § 34.3662; SDCL, § 23-45-12; SL 1978, ch 178, § 323; SL 1983, ch 174, § 15.
23A-26-6. Direction to reconsider improper verdict.
If a jury renders a verdict which is not a general verdict in accordance with § 23A-26-4 or 23A-26-5, a court may, with proper instructions as to the law, direct the jury to reconsider it.
Source: SDC 1939 & Supp 1960, § 34.3667; SDCL, § 23-45-18; SL 1978, ch 178, § 324.
23A-26-7. Verdict as to degree of crime--Lowest degree found on reasonable doubt.
Whenever a crime is distinguished by degrees, a jury, if it convicts an accused, shall find the degree of the crime of which he is guilty and include that finding in its verdict. When there is a reasonable ground of doubt as to which of two or more degrees an accused is guilty, he can be convicted of only the lowest degree.
Source: SDC 1939, § 13.0104; SDC 1939 & Supp 1960, §§ 34.3635, 34.3671; SDCL, §§ 23-44-6, 23-45-22; SL 1978, ch 178, § 325.
23A-26-8. (Rule 31(c)) Conviction of included offense or attempt.
A defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if such attempt is an offense.
Source: SDC 1939 & Supp 1960, § 34.3669; SDCL, § 23-45-23; SL 1978, ch 178, § 327.
23A-26-9. Appearance of defendant--When required for verdict.
If an indictment or information is for a felony, the defendant must, before the verdict is received, appear in person. If it is for a misdemeanor, the verdict may, in the discretion of the court, be rendered in his absence. In any case, if a defendant flees the jurisdiction of a court, the verdict may be returned in his absence.
Source: SDC 1939 & Supp 1960, § 34.3660; SDCL, § 23-45-7; SL 1978, ch 178, § 320.
23A-26-10. (Rule 31(d)) Polling of jury after verdict returned--Further deliberation or discharge if not unanimous.
After a verdict is returned but before it is recorded, the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
Source: SDC 1939 & Supp 1960, § 34.3673; SDCL, § 23-45-25; SL 1978, ch 178, § 328.
23A-26-11. Recording of verdict--Inquiry of jury.
When a verdict is given which a court may receive, the clerk must promptly record it in full in the minutes, and must read it to the jurors and inquire of them whether it is their verdict. If any juror disagrees, the fact must be entered in the minutes and the jury must again be sent out. If no disagreement is expressed, the verdict is complete and the jury must be discharged from the case.
Source: SDC 1939 & Supp 1960, § 34.3674; SDCL, § 23-45-26; SL 1978, ch 178, § 329.
23A-26-12. Remand to custody on verdict of guilty or guilty but mentally ill--Commitment hearing on acquittal for insanity.
If a verdict of guilty or "guilty but mentally ill" is returned against the defendant, he shall be remanded, if in custody, to the proper officer of the county to await the judgment of the court upon the verdict. When the jury has returned a verdict acquitting the defendant upon the ground of insanity, the court shall order that the defendant be committed to the human services center until such time as he is eligible for release pursuant to § 23A-26-12.5.
Source: SDC 1939 & Supp 1960, §§ 13.0605, 34.3676; SDCL, §§ 23-45-21, 23-48-2; SL 1978, ch 178, § 330; SL 1983, ch 174, § 17; SL 1985, ch 192, § 12.
23A-26-12.1. Mental examination and report before hearing.
Prior to the date of hearing, pursuant to § 23A-26-12.2, 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.
Source: SL 1985, ch 192, § 13.
23A-26-12.2. Hearing.
A hearing shall be conducted pursuant to the provisions of § 23A-46-3, and shall take place not later than forty days following the special verdict.
Source: SL 1985, ch 192, § 14.
23A-26-12.3. Burden of proof.
In a hearing pursuant to § 23A-26-12.2, a person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental illness or defect. With respect to any other offense, the person has the burden of such proof by a preponderance of the evidence.
Source: SL 1985, ch 192, § 15.
23A-26-12.4. Commitment--Duration.
If, after the hearing, the court fails to find by the standard specified in § 23A-26-12.3 that the person's release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect, the court shall order that the defendant be committed to the human services center for treatment until the person's mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would not create a substantial risk of bodily injury to another person or serious damage to property of another.
Source: SL 1985, ch 192, § 16.
23A-26-12.5. Release--Procedure--Compliance with prescribed regimen as condition.
When the administrator of the Human Services Center determines that the person has recovered from his mental disease or defect to such an extent that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, 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 the person's counsel and to the prosecuting attorney. The court shall order the discharge of the acquitted person, or, on the motion of the prosecuting attorney or on its own motion, shall hold a hearing, conducted pursuant to the provisions of § 23A-46-3, to determine whether he should be released. If, after the hearing, the court finds by the standards specified in § 23A-26-12.3 that the person has recovered from his mental disease or defect to such an extent that:
(1) His release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or
(2) His conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall:
(a) Order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the administrator of the Human Services Center and that has been found by the court to be appropriate; and
(b) Order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.
The court at any time may, after hearing, employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.
Source: SL 1985, ch 192, § 17.
23A-26-12.6. Failure to comply with regimen--Notice--Arrest--Court determination.
The director of a medical facility responsible for administering the regimen imposed on an acquitted person conditionally discharged under § 23A-26-12.5 shall notify the prosecuting attorney and the court having jurisdiction over the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after hearing, determine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.
Source: SL 1985, ch 192, § 18.
23A-26-14. Guilty but mentally ill verdict--Required findings.
If the defendant raises the defense of "not guilty and not guilty by reason of insanity," he may be found "guilty but mentally ill" if the trier of fact finds all of the following beyond a reasonable doubt:
(1) The defendant is guilty of an offense; and
(2) The defendant was mentally ill when he committed the offense.
Source: SL 1983, ch 174, § 16; SL 1986, ch 25.
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.
CHAPTER 23A-27A
CAPITAL PUNISHMENT
23A-27A-1 Mitigating and aggravating circumstances considered by judge or jury.
23A-27A-2 Presentence hearing required--Relevant evidence.
23A-27A-3 Jury to determine existence of mitigating or aggravating circumstances--Instructions to jury.
23A-27A-4 Aggravating circumstance and recommendation of death penalty required for Class A felony death sentencing--Life imprisonment--Bench trial or guilty plea.
23A-27A-5 Written designation of aggravating circumstances required.
23A-27A-6 Designation by judge in nonjury cases--At least one aggravating circumstance required for death penalty imposition.
23A-27A-7 Sentence of death--Copies of judgment provided to officials.
23A-27A-8 Accumulation of prior capital felony records by Supreme Court--Staff and methods.
23A-27A-9 Review by Supreme Court required when death penalty imposed--Procedure.
23A-27A-10 Sentence review consolidated with direct appeal--Decision.
23A-27A-11 Procedure on appeal from capital punishment case--Briefs--Oral argument.
23A-27A-12 Factors reviewed by Supreme Court regarding sentence.
23A-27A-13 Reference to similar cases to be included in decision--Death sentence affirmed or set aside--Similar-case records provided to resentencing judge.
23A-27A-14 Life imprisonment when death penalty held unconstitutional.
23A-27A-15 Warrant of death sentence and execution--Time of execution.
23A-27A-16 Delivery of defendant with warrant to state correctional facility.
23A-27A-17 Date and time of execution--Secretary of corrections to make public announcement.
23A-27A-18 23A-27A-18. Repealed by SL 2008, ch 117, § 5.
23A-27A-19 Investigation by Governor.
23A-27A-20 Reprieve or suspension of sentence by Governor during investigation.
23A-27A-21 Power to reprieve or suspend sentence limited to Governor--Exception.
23A-27A-22 Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.
23A-27A-22.1 Hearings and examinations regarding mental competence of defendant--Change in circumstances.
23A-27A-22.2 Psychiatric examination.
23A-27A-22.3 Psychiatric report.
23A-27A-22.4 Video tape record of psychiatric examination.
23A-27A-22.5 Counsel for defendant--Rights afforded at hearing.
23A-27A-23 23A-27A-23. Repealed by SL 2008, ch 117, § 17.
23A-27A-24 Defendant incompetent to be executed--Suspension of sentence--Confinement--Periodic review.
23A-27A-25 23A-27A-25. Repealed by SL 2008, ch 117, § 18.
23A-27A-26 Defendant mentally competent to be executed--Warrant of death sentence and execution--Time of execution.
23A-27A-26.1 Death penalty not to be imposed on intellectually disabled person.
23A-27A-26.2 Intellectual disability defined.
23A-27A-26.3 Procedures for determining intellectual disability of defendant.
23A-27A-26.4 Appeal by state.
23A-27A-26.5 Examination of defendant by expert designated by state--Videotaped recording--Defendant's statements inadmissible except as to issue of intellectual disability.
23A-27A-26.6 Applicability of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive.
23A-27A-26.7 Inseparability of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive.
23A-27A-27 Pregnancy of defendant--Examination--Report.
23A-27A-28 Suspension of sentence if defendant pregnant.
23A-27A-29 Defendant no longer pregnant--Execution warrant issued.
23A-27A-30 23A-27A-30. Repealed by SL 2008, ch 117, § 22.
23A-27A-31 Warrant appointing new time for execution issued by sentencing court if defendant not executed within original time period.
23A-27A-31.1 Repealed.
23A-27A-31.2 Confidentiality of identity of person or entity supplying or administering intravenous injection substance--Violation as misdemeanor.
23A-27A-32 Place and manner of execution--Qualifications to administer intravenous injection--Substances dispensed to secretary of corrections or designee without prescription.
23A-27A-32.1 Execution of persons convicted before July 1, 2007--Choice of manner of execution.
23A-27A-33 Place for persons and equipment provided at correctional facility.
23A-27A-34 Attendance at execution by attorney general, sentencing judge, state's attorney, sheriff, representatives of victim, news media, and additional citizens approved by secretary of corrections.
23A-27A-34.1 Attendance at execution by person trained to pronounce death, corrections staff, and law enforcement officers.
23A-27A-34.2 Witnesses permitted to defendant at execution.
23A-27A-35 23A-27A-35. Repealed by SL 2008, ch 117, § 28.
23A-27A-36 Other persons not permitted to attend.
23A-27A-37 Secrecy of execution time--Disclosure as misdemeanor.
23A-27A-37.1 Repealed.
23A-27A-37.2 Postmortem examination by county coroner.
23A-27A-37.3 Autopsy.
23A-27A-38 23A-27A-38. Repealed by SL 2007, ch 152, § 2.
23A-27A-39 Interment of body unless claimed by relative.
23A-27A-40 23A-27A-40. Repealed by SL 2008, ch 117, § 38.
23A-27A-40.1 Certificate of execution.
23A-27A-41 23A-27A-41. Repealed by SL 2008, ch 117, § 33.
23A-27A-42 Death penalty prohibited for defendant younger than eighteen when offense committed.
23A-27A-43 Immunity of persons participating and cooperating in execution.
23A-27A-44 Effect of amendment and repeal of sections.
23A-27A-1. Mitigating and aggravating circumstances considered by judge or jury.
Pursuant to §§ 23A-27A-2 to 23A-27A-6, inclusive, in all cases for which the death penalty may be authorized, the judge shall consider, or shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the following aggravating circumstances which may be supported by the evidence:
(1) The offense was committed by a person with a prior record of conviction for a Class A or Class B felony, or the offense of murder was committed by a person who has a felony conviction for a crime of violence as defined in subdivision 22-1-2(9);
(2) The defendant by the defendant's act knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
(3) The defendant committed the offense for the benefit of the defendant or another, for the purpose of receiving money or any other thing of monetary value;
(4) The defendant committed the offense on a judicial officer, former judicial officer, prosecutor, or former prosecutor while such prosecutor, former prosecutor, judicial officer, or former judicial officer was engaged in the performance of such person's official duties or where a major part of the motivation for the offense came from the official actions of such judicial officer, former judicial officer, prosecutor, or former prosecutor;
(5) The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person;
(6) The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age;
(7) The offense was committed against a law enforcement officer, employee of a corrections institution, or firefighter while engaged in the performance of such person's official duties;
(8) The offense was committed by a person in, or who has escaped from, the lawful custody of a law enforcement officer or place of lawful confinement;
(9) The offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of the defendant or another; or
(10) The offense was committed in the course of manufacturing, distributing, or dispensing substances listed in Schedules I and II in violation of § 22-42-2.
Source: SL 1979, ch 160, § 7; SL 1981, ch 186, § 3; SL 1989, ch 206; SL 1992, ch 173, § 2; SL 1994, ch 178, § 1; SL 1995, ch 132.
23A-27A-2. Presentence hearing required--Relevant evidence.
In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted to hear additional evidence in mitigation and aggravation of punishment. At such hearing the jury shall receive all relevant evidence, including:
(1) Evidence supporting any of the aggravating circumstances listed under § 23A-27A-1;
(2) Testimony regarding the impact of the crime on the victim's family;
(3) Any prior criminal or juvenile record of the defendant and such information about the defendant's characteristics, the defendant's financial condition, and the circumstances of the defendant's behavior as may be helpful in imposing sentence;
(4) All evidence concerning any mitigating circumstances.
Source: SL 1979, ch 160, § 5; SL 1994, ch 178, § 2.
23A-27A-3. Jury to determine existence of mitigating or aggravating circumstances--Instructions to jury.
Upon the conclusion of the evidence, the judge shall give the jury appropriate instructions. After arguments of counsel, the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in § 23A-27A-1, exist. The instructions as determined by the trial judge to be warranted by the evidence shall be given in his charge and in writing to the jury for its deliberation.
Source: SL 1979, ch 160, § 5; SL 1990, ch 175.
23A-27A-4. Aggravating circumstance and recommendation of death penalty required for Class A felony death sentencing--Life imprisonment--Bench trial or guilty plea.
If, upon a trial by jury, a person is convicted of a Class A felony, a sentence of death shall not be imposed unless the jury verdict at the presentence hearing includes a finding of at least one aggravating circumstance and a recommendation that such sentence be imposed. If an aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. If a sentence of death is not recommended by the jury, the court shall sentence the defendant to life imprisonment. The provisions of this section shall not affect a sentence when the case is tried without a jury or when a court accepts a plea of guilty.
Source: SL 1979, ch 160, § 4.
23A-27A-5. Written designation of aggravating circumstances required.
The jury, if its verdict is a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. Upon the findings of the jury, the judge shall fix a sentence of death.
Source: SL 1979, ch 160, § 5.
23A-27A-6. Designation by judge in nonjury cases--At least one aggravating circumstance required for death penalty imposition.
In nonjury cases the judge shall, after conducting the presentence hearing as provided in § 23A-27A-2, designate, in writing, the aggravating circumstance or circumstances, if any, which he found beyond a reasonable doubt. Unless at least one of the statutory aggravating circumstances enumerated in § 23A-27A-1 is so found, the death penalty shall not be imposed.
Source: SL 1979, ch 160, § 6.
23A-27A-7. Sentence of death--Copies of judgment provided to officials.
Upon a verdict or judgment of death made by a jury or a judge, the judge presiding at the trial shall sentence the convicted person to death and make the sentence in writing. The judgment of death shall be filed with the papers in the case against the convicted person and certified copies provided to the Governor, the secretary of corrections, the sheriff of the county where the crime was committed, and the warden.
Source: SL 1979, ch 160, § 8; SL 2008, ch 117, § 1.
23A-27A-8. Accumulation of prior capital felony records by Supreme Court--Staff and methods.
The Supreme Court shall accumulate the records of all capital felony cases that the court deems appropriate.
The court may employ an appropriate staff and such methods to compile the data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
Source: SL 1979, ch 160, § 13; SL 1982, ch 185.
23A-27A-9. Review by Supreme Court required when death penalty imposed--Procedure.
If the death penalty is imposed, and if the judgment becomes final in the trial court, the sentence shall be reviewed on the record by the South Dakota Supreme Court. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
Source: SL 1939, ch 137, §§ 1 to 3; SDC Supp 1960, § 34.37A16; SDCL, §§ 23-49-31, 23-49-32; SL 1979, ch 160, § 9.
23A-27A-10. Sentence review consolidated with direct appeal--Decision.
The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.
Source: SL 1979, ch 160, § 14.
23A-27A-11. Procedure on appeal from capital punishment case--Briefs--Oral argument.
Except as provided in this chapter, the procedure on appeal from a decision in which capital punishment has been imposed shall be the same as is prescribed by law or Supreme Court rule in other criminal cases. Both the defendant and the state shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
Source: SL 1939, ch 137, § 4; SDC Supp 1960, § 34.37A16; SDCL, § 23-49-33; SL 1979, ch 160, §§ 11, 15.
23A-27A-12. Factors reviewed by Supreme Court regarding sentence.
With regard to the sentence, the Supreme Court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in § 23A-27A-1; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Source: SL 1979, ch 160, § 10.
23A-27A-13. Reference to similar cases to be included in decision--Death sentence affirmed or set aside--Similar-case records provided to resentencing judge.
The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration.
Source: SL 1979, ch 160, § 12.
23A-27A-14. Life imprisonment when death penalty held unconstitutional.
In the event the death penalty for a Class A felony is held to be unconstitutional by the South Dakota Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a Class A felony shall have such person brought before the court, and the court shall sentence such person to life imprisonment.
Source: SL 1979, ch 160, § 16.
23A-27A-15. Warrant of death sentence and execution--Time of execution.
Whenever judgment of death is rendered, the judge shall also sign and provide to the Governor, the secretary of corrections, and the sheriff of the county where the crime was committed a warrant of death sentence and execution, along with a brief statement of the facts and circumstances of the case, duly attested by the clerk under the seal of the court. The warrant of death sentence and execution shall describe the conviction and sentence and appoint the week within which the sentence shall be executed. The warrant of death sentence and execution shall be directed to the secretary of corrections, commanding the secretary of corrections or a designee of the secretary to execute the sentence on some day within the week appointed.
Source: SL 1939, ch 135, § 1; SDC Supp 1960, § 34.37A01; SDCL § 23-49-1; SL 1979, ch 160, § 17; SL 2008, ch 117, § 2; SL 2023, ch 82, § 35.
23A-27A-16. Delivery of defendant with warrant to state correctional facility.
Within ten days after the issuing of a warrant of death sentence and execution under § 23A-27A-15, the sheriff shall deliver the defendant together with certified copies of the warrant of death sentence and execution and the judgment of conviction to the state correctional facility.
Source: SL 1939, ch 135, § 1; SDC Supp 1960, § 34.37A01; SDCL § 23-49-2; SL 1979, ch 160, § 18; SL 2008, ch 117, § 3; SL 2023, ch 82, § 36.
23A-27A-17. Date and time of execution--Secretary of corrections to make public announcement.
The week so appointed may not be less than six months or more than eight months after the date of judgment of death. The time of execution within the week is in the discretion of the secretary of corrections to whom the warrant is directed. The secretary shall cause the execution to be performed on some day of such week. Not less than forty-eight hours prior to the execution, the secretary shall make a public announcement of the scheduled day and hour of the execution.
Source: SL 1939, ch 135, § 2; SDC Supp 1960, § 34.37A02; SDCL § 23-49-3; SL 1979, ch 160, § 19; SL 1999, ch 123, § 1; SL 2008, ch 117, § 4; SL 2023, ch 82, § 37.
23A-27A-19. Investigation by Governor.
The Governor may make such investigation of the case as the Governor may deem proper and may require the assistance of the attorney general.
Source: SL 1939, ch 135, § 4; SDC Supp 1960, § 34.27A04; SDCL § 23-49-5; SL 1979, ch 160, § 21; SL 2008, ch 117, § 6.
23A-27A-20. Reprieve or suspension of sentence by Governor during investigation.
The Governor may reprieve or suspend the execution of the sentence for such reasonable time as the Governor may see fit for the purpose of completing an investigation or other like proper purpose but the period of reprieve or suspension shall not in any event, exceed ninety days.
Source: SL 1939, ch 135, § 4; SDC Supp 1960, § 34.37A04; SDCL § 23-49-7; SL 1979, ch 160, § 22; SL 2008, ch 117, § 7.
23A-27A-21. Power to reprieve or suspend sentence limited to Governor--Exception.
No judge, officer, commission, or board, other than the Governor, may reprieve or suspend the execution of a judgment of death. However, the secretary of corrections is authorized so to do in a case and in the manner prescribed in this chapter or as provided in §§ 23A-27A-24 and 23A-27A-28. This section does not apply to a stay of proceedings upon appeal or to the issuance of a writ of habeas corpus, certiorari, or other original remedial writ of the Supreme Court.
Source: SL 1939, ch 135, § 5; SDC Supp 1960, § 34.37A05; SDCL § 23-49-8; SL 1979, ch 160, § 23; SL 2008, ch 117, § 8; SL 2023, ch 82, § 38.
23A-27A-22. Mental incompetence of defendant--Notice to Governor, secretary of corrections, and sentencing court.
If a defendant confined under sentence of death does not appear to be mentally competent to be executed, the warden having custody of the defendant shall notify the Governor, the secretary of corrections, and the sentencing court.
Source: SL 1939, ch 135, § 6; SDC Supp 1960, § 34.37A06; SDCL § 23-49-9; SL 1979, ch 160, § 24; SL 2002, ch 135, § 2; SL 2008, ch 117, § 9.
23A-27A-22.1. Hearings and examinations regarding mental competence of defendant--Change in circumstances.
If the warden notifies the sentencing court that a defendant under a sentence of death does not appear to be mentally competent to be executed, or if the prosecuting attorney or the defense attorney moves for a determination of whether the defendant is mentally competent to be executed, and the sentencing court determines that there is a substantial threshold showing of incompetence to be executed, the sentencing court shall conduct hearings and order mental examinations pursuant to this section and §§ 23A-27A-22.2 to 23A-27A-22.5, inclusive. Prior to the date of the hearing, the court may order that a psychiatric examination of the defendant be conducted pursuant to § 23A-27A-22.2, and that a psychiatric report be filed with the court, pursuant to § 23A-27A-22.3. The state has the burden of proving the mental competence of the defendant by a preponderance of the evidence. A defendant is mentally competent to be executed if the defendant is aware of the impending execution and the reason for it. If the defendant has previously been determined to be competent to be executed under this chapter and there is a subsequent motion to the sentencing court that the defendant no longer appears to be mentally competent to be executed, there shall be a prima facie showing of a substantial change in circumstances raising a significant question of the defendant's competence to be executed before the sentencing court conducts any further hearing.
Source: SL 2008, ch 117, § 10.
23A-27A-22.2. Psychiatric examination.
Any psychiatric examination ordered pursuant to § 23A-27A-22.1 shall be conducted by a licensed or certified psychiatrist, or, if the court finds it appropriate, by more than one such psychiatrist. Each psychiatrist shall be designated by the court. For the purposes of a psychiatric examination ordered pursuant to § 23A-27A-22.1, the defendant shall remain confined under the physical custody of the Department of Corrections.
Source: SL 2008, ch 117, § 11.
23A-27A-22.3. Psychiatric report.
Any psychiatric report ordered pursuant to § 23A-27A-22.1 shall be prepared by the psychiatrist designated to conduct the psychiatric examination, shall be filed with the court with copies provided to the counsel for the defendant and to the prosecuting attorney, and shall include:
(1) The defendant's history and present symptoms;
(2) A description of the psychiatric, psychological, and medical tests that were employed and their results; and
(3) The psychiatrist's determination whether the defendant is mentally competent to be executed as defined in § 23A-27A-22.1.
Source: SL 2008, ch 117, § 12.
23A-27A-22.4. Video tape record of psychiatric examination.
Upon written request of defense counsel, the court may order a video tape record made of the defendant's psychiatric examination conducted pursuant to § 23A-27A-22.1. Either the prosecuting attorney or the defendant's counsel may request a copy of the video tape record. The video tape record shall be submitted to the court along with the psychiatric report, pursuant to § 23A-27A-22.3.
Source: SL 2008, ch 117, § 13.
23A-27A-22.5. Counsel for defendant--Rights afforded at hearing.
At any hearing ordered pursuant to § 23A-27A-22.1, the defendant shall be represented by counsel and, if financially unable to obtain adequate representation, counsel shall be appointed for the defendant. The defendant shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on the defendant's behalf, and to confront and cross-examine witnesses who appear at the hearing.
Source: SL 2008, ch 117, § 14.
23A-27A-24. Defendant incompetent to be executed--Suspension of sentence--Confinement--Periodic review.
If the sentencing court finds the defendant is not mentally competent to be executed the sentencing court shall suspend the execution of sentence until the defendant is mentally competent to be executed. The defendant shall remain confined under the physical custody of the Department of Corrections. The sentencing court shall review the defendant's mental condition at least once every six months during the period that the execution of sentence is suspended.
Source: SL 1939, ch 135, § 6; SDC Supp 1960, § 34.37A06; SDCL § 23-49-11; SL 1979, ch 160, § 26; SL 2008, ch 117, § 15.
23A-27A-26. Defendant mentally competent to be executed--Warrant of death sentence and execution--Time of execution.
If the sentencing court determines the defendant is mentally competent to be executed, the sentencing court shall certify the fact to the Governor, the secretary of corrections, and the warden having custody of the defendant. The sentencing court, upon determination the defendant is mentally competent to be executed, shall issue a warrant of death sentence and execution appointing a week beginning within a period of not less than thirty nor more than ninety days from the date of the warrant, for the execution of the defendant pursuant to the defendant's sentence unless the sentence has been commuted or the defendant pardoned. In no case may the appointed week of execution be sooner than the week appointed by the sentencing court pursuant to § 23A-27A-15.
Source: SL 1939, ch 135, § 8; SDC Supp 1960, § 34.37A08; SDCL § 23-49-14; SL 1979, ch 160, § 28; SL 2008, ch 117, § 16.
23A-27A-26.1. Death penalty not to be imposed on intellectually disabled person.
Notwithstanding any other provision of law, the death penalty may not be imposed upon any person who was intellectually disabled at the time of the commission of the offense and whose intellectual disability was manifested and documented before the age of eighteen years.
Source: SL 2000, ch 112, § 1; SL 2018, ch 148, § 1.
23A-27A-26.2. Intellectual disability defined.
As used in §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive, intellectual disability means significant subaverage general intellectual functioning existing concurrently with substantial related deficits in applicable adaptive skill areas. An intelligence quotient exceeding seventy on a reliable standardized measure of intelligence is presumptive evidence that the defendant does not have significant subaverage general intellectual functioning.
Source: SL 2000, ch 112, § 2; SL 2018, ch 148, § 2.
23A-27A-26.3. Procedures for determining intellectual disability of defendant.
Not later than ninety days before the commencement of trial, the defendant may upon a motion alleging reasonable cause to believe the defendant was intellectually disabled at the time of the commission of the offense, apply for an order directing that an intellectual disability hearing be conducted before trial. If, upon review of the defendant's motion and any response to the defendant's motion, the court finds reasonable cause to believe the defendant was intellectually disabled, the court shall promptly conduct a hearing without a jury to determine whether the defendant was intellectually disabled. If the court finds after the hearing that the defendant was not intellectually disabled at the time of the commission of the offense, the court shall, before commencement of trial, enter an order stating the court's finding. Nothing in this paragraph precludes the defendant from presenting mitigating evidence of an intellectual disability at the sentencing phase of the trial. If the court finds after the hearing that the defendant established an intellectual disability by a preponderance of the evidence, the court shall before commencement of trial, enter an order stating the court's finding. Unless the order is reversed on appeal, a separate sentencing proceeding under this section may not be conducted if the defendant is thereafter convicted of murder in the first degree. If a separate sentencing proceeding is not conducted, the court, upon conviction of a defendant for the crime of murder in the first degree, shall sentence the defendant to life imprisonment.
Source: SL 2000, ch 112, § 3; SL 2018, ch 148, § 3.
23A-27A-26.4. Appeal by state.
If the court enters an order pursuant to § 23A-27A-26.3 finding that the defendant was intellectually disabled at the time of the commission of the offense, the state may appeal as of right from the order. Upon entering such an order, the court shall afford the state a reasonable period of time, which may not be less than ten days, to determine whether to take an appeal from the order finding that the defendant was intellectually disabled. The taking of an appeal by the state stays the effectiveness of the court's order and any order fixing a date for trial.
Source: SL 2000, ch 112, § 4; SL 2018, ch 148, § 4.
23A-27A-26.5. Examination of defendant by expert designated by state--Videotaped recording--Defendant's statements inadmissible except as to issue of intellectual disability.
If a defendant serves notice pursuant to § 23A-27A-26.3, the state may make application, upon notice to the defendant, for an order directing that the defendant submit to an examination by a psychiatrist, licensed psychologist, or licensed psychiatric social worker designated by the state's attorney, for the purpose of rebutting evidence offered by the defendant. Counsel for the state and the defendant have the right to be present at the examination. A videotaped recording of the examination shall be made available to the defendant and the state's attorney promptly after its conclusion. The state's attorney shall promptly serve on the defendant a written copy of the findings and evaluation of the examiner. If a defendant is subjected to an examination pursuant to an order issued in accordance with this section, any statement made by the defendant for the purpose of the examination is inadmissible in evidence against the defendant in any criminal action or proceeding on every issue other than that of whether the defendant was intellectually disabled at the time of the commission of the offense, but such statement is admissible upon such an issue whether or not it would otherwise be deemed a privileged communication.
Source: SL 2000, ch 112, § 5; SL 2018, ch 148, § 5.
23A-27A-26.6. Applicability of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive.
The provisions of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive, apply only to offenses alleged to have been committed by the defendant after July 1, 2000.
Source: SL 2000, ch 112, § 6.
23A-27A-26.7. Inseparability of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive.
The provisions of §§ 23A-27A-26.1 to 23A-27A-26.7, inclusive, are essentially and inseparably connected and interdependent.
Source: SL 2000, ch 112, § 7.
23A-27A-27. Pregnancy of defendant--Examination--Report.
If there is reasonable ground to believe that a female defendant sentenced to death is pregnant, the warden having her in custody shall arrange for an examination of the defendant to determine her condition. Upon the completion of the examination, the warden shall make a report in writing over the warden's signature, stating the facts, and submit the report to the secretary of corrections, the sentencing court, and the Governor.
Source: SL 1939, ch 135, § 9; SDC Supp 1960, § 34.37A09; SDCL § 23-49-15; SL 1979, ch 160, § 29; SL 2008, ch 117, § 19.
23A-27A-28. Suspension of sentence if defendant pregnant.
If the examination under § 23A-27A-27 finds that the defendant is pregnant the execution of the sentence shall be suspended by the sentencing court. The defendant may not be executed until a new warrant of death sentence and execution is received from the sentencing court so directing.
Source: SL 1939, ch 135, § 9; SDC Supp 1960, § 34.37A09; SDCL § 23-49-16; SL 1979, ch 160, § 30; SL 2008, ch 117, § 20.
23A-27A-29. Defendant no longer pregnant--Execution warrant issued.
If the execution of a sentence is suspended pursuant to § 23A-27A-28, as soon as the sentencing court is satisfied the defendant is no longer pregnant, the sentencing court shall forthwith issue a warrant of death sentence and execution appointing a week for her execution, pursuant to her sentence. The week for the execution shall be within a period of not less than thirty nor more than ninety days from the date of the warrant of death sentence and execution. In no case may the appointed week of execution be sooner than the week appointed by the sentencing court pursuant to § 23A-27A-15.
Source: SL 1939, ch 135, § 9; SDC Supp 1960, § 34.37A09; SDCL § 23-49-17; SL 1979, ch 160, § 31; SL 2008, ch 117, § 21.
23A-27A-31. Warrant appointing new time for execution issued by sentencing court if defendant not executed within original time period.
If the time period for the execution of any defendant in a capital case has passed by reason of a stay of proceedings incident to appellate review or by reason of the issuance of a writ of habeas corpus, certiorari, or other original remedial writ of the Supreme Court, or for any other reason, the sentencing court shall issue a warrant of death sentence and execution in accordance with § 23A-27A-15 appointing a new week for the execution of the original sentence without requiring the defendant to be brought before the sentencing court. Upon its issuance, the clerk of the court in which the sentence was pronounced shall immediately send a certified copy of the warrant of death sentence and execution to all attorneys of record, to the warden having custody of the defendant, to the secretary of corrections, and to the Governor. The warden shall execute the warrant of death sentence and execution accordingly. This procedure applies to any case in which the time period for carrying out the original warrant of death sentence and execution has elapsed without regard to whether the original warrant was issued prior or subsequent to July 1, 1998.
Source: SL 1939, ch 135, § 10; SDC Supp 1960, § 34.37A10; SDCL § 23-49-19; SL 1979, ch 160, § 33; SL 1998, ch 149, § 1; SL 2008, ch 117, § 23.
23A-27A-31.2. Confidentiality of identity of person or entity supplying or administering intravenous injection substance--Violation as misdemeanor.
The name, address, qualifications, and other identifying information relating to the identity of any person or entity supplying or administering the intravenous injection substance or substances under chapter 23A-27A are confidential. Disclosure of the foregoing information may not be authorized or ordered. Disclosure of confidential information pursuant to this section concerning the execution of an inmate under chapter 23A-27A is a Class 1 misdemeanor.
Source: SL 2008, ch 117, § 25; SL 2013, ch 113, § 1.
23A-27A-32. Place and manner of execution--Qualifications to administer intravenous injection--Substances dispensed to secretary of corrections or designee without prescription.
The punishment of death must be inflicted within the walls of some building at a state correctional facility. The punishment of death must be inflicted by the intravenous injection of a substance or substances in a lethal quantity. The secretary of corrections or a designee of the secretary shall determine the substances and the quantity of substances used for the punishment of death. Only persons trained to administer the injection, selected by the secretary or a designee of the secretary, may perform an execution carried out by intravenous injection. The persons administering the intravenous injection need not be physicians, registered nurses, licensed practical nurses, or other medical professionals licensed or registered under the laws of this or any other state. Any infliction of the punishment of death by intravenous injection of a substance or substances in the manner required by this section may not be construed to be the practice of medicine. Any pharmacist or pharmaceutical supplier is authorized to dispense to the secretary or a designee of the secretary the substance or substances used to inflict the punishment of death without prescription, for carrying out the provisions of this section, notwithstanding any other provision of law.
Source: SL 1939, ch 135, § 11; SDC Supp 1960, § 34.37A11; SDCL § 23-49-20; SL 1979, ch 160, § 34; SL 1984, ch 181; SL 2007, ch 151, § 1; SL 2008, ch 117, § 26; SL 2023, ch 82, § 40.
23A-27A-32.1. Execution of persons convicted before July 1, 2007--Choice of manner of execution.
Any person convicted of a capital offense or sentenced to death prior to July 1, 2007 may choose to be executed in the manner provided in § 23A-27A-32 or in the manner provided by South Dakota law at the time of the person's conviction or sentence. The person shall choose by indicating in writing to the secretary of corrections not less than seven days prior to the scheduled week of execution the manner of execution chosen. If the person fails or refuses to choose in the time provided under this section, then the person shall be executed as provided in § 23A-27A-32.
Source: SL 2007, ch 151, § 2; SL 2023, ch 82, § 41.
23A-27A-33. Place for persons and equipment provided at correctional facility.
The Department of Corrections shall arrange for and provide a proper and suitable place at a state correctional facility for the custody of persons awaiting sentence of death and for the execution of the death sentence together with any and all proper equipment and appliances for the infliction of such punishment.
Source: SL 1939, ch 135, § 12; SDC Supp 1960, § 34.37A12; SDCL, § 23-49-21; SL 1979, ch 160, § 35; SL 1989, ch 20, § 68; SL 2023, ch 82, § 42.
23A-27A-34. Attendance at execution by attorney general, sentencing judge, state's attorney, sheriff, representatives of victim, news media, and additional citizens approved by secretary of corrections.
The secretary of corrections shall request, by at least two days' previous notice, the presence of the attorney general, the trial judge before whom the conviction was had or the judge's successor in office, the state's attorney and sheriff of the county where the crime was committed, representatives of the victim, at least one member of the news media, and a number of reputable adult citizens to be determined by the secretary. All witnesses and persons present at an execution are subject to approval by the secretary.
Source: SL 1939, ch 135, § 13; SL 1939, ch 136; SDC Supp 1960, § 34.37A13; SDCL § 23-49-22; SL 1979, ch 160, § 36; SL 2007, ch 152, § 1; SL 2008, ch 117, § 27; SL 2023, ch 82, § 43.
23A-27A-34.1. Attendance at execution by person trained to pronounce death, corrections staff, and law enforcement officers.
The secretary of corrections or a designee of the secretary shall arrange for the attendance of a person trained to examine the defendant and pronounce death and for the attendance of such correctional facility staff, Department of Corrections staff, and law enforcement officers as deemed necessary to perform the execution and maintain security.
Source: SL 2008, ch 117, § 29; SL 2023, ch 82, § 44.
23A-27A-34.2. Witnesses permitted to defendant at execution.
The defendant is permitted to have up to five witnesses present at the execution. Witnesses for the defendant may include counsel, members of the clergy, relatives, or friends.
Source: SL 2008, ch 117, § 30.
23A-27A-36. Other persons not permitted to attend.
The warden may not permit any person to be present at the execution other than those designated in §§ 23A-27A-32, 23A-27A-34, 23A-27A-34.1, and 23A-27A-34.2 and may not permit the presence of any person under the age of eighteen years.
Source: SL 1939, ch 135, § 13; SL 1939, ch 136; SDC Supp 1960, § 34.37A13; SDCL § 23-49-24; SL 1979, ch 160, § 38; SL 2008, ch 117, § 31.
23A-27A-37. Secrecy of execution time--Disclosure as misdemeanor.
Prior to the announcement required in § 23A-27A-17, the scheduled day and time fixed by the warden for the execution shall be kept secret and in no manner divulged except privately to the persons invited or requested to be present as provided by §§ 23A-27A-32, 23A-27A-34, 23A-27A-34.1, and 23A-27A-34.2. It is a Class 2 misdemeanor for any person to divulge such invitation to anyone or in any manner disclose the scheduled day and time of the execution prior to the announcement required in § 23A-27A-17.
Source: SL 1939, ch 135, § 13; SL 1939, ch 136; SDC Supp 1960, § 34.37A13; SDCL § 23-49-25; SL 1979, ch 160, § 39; SL 2008, ch 117, § 32.
23A-27A-37.2. Postmortem examination by county coroner.
After the execution, the county coroner shall conduct a postmortem examination of the body of the defendant. The county coroner shall report in writing the result of the examination, stating the nature thereof and the finding made. The report shall be annexed to the certificate of execution mentioned in § 23A-27A-40.1 and filed therewith.
Source: SL 2008, ch 117, § 35.
23A-27A-37.3. Autopsy.
Following the death of the defendant by execution, the body may be subject to an autopsy pursuant to § 24-1-27 and chapter 23-14. Any final autopsy report shall be annexed to and filed with the certificate of execution mentioned in § 23A-27A-40.1.
Source: SL 2008, ch 117, § 36.
23A-27A-39. Interment of body unless claimed by relative.
After the postmortem examination and any autopsy, the body of the defendant, unless claimed by some relative, shall be interred in a cemetery within the county where the state correctional facility is situated.
Source: SL 1939, ch 135, § 13; SL 1939, ch 136; SDC Supp 1960, § 34.37A13; SDCL § 23-49-27; SL 1979, ch 160, § 41; SL 2007, ch 152, § 3; SL 2008, ch 117, § 37; SL 2023, ch 82, § 46.
23A-27A-40.1. Certificate of execution.
The warden or corrections official attending and in charge of the execution shall prepare and sign a certificate of execution setting forth the date, time, place, and manner of execution, and that the defendant was executed in conformity to the judgment of the court and the provisions of this chapter. The certificate of execution document shall be signed by each of the witnesses of the execution attending as allowed in § 23A-27A-34 and § 23A-27A-34.2. The warden or corrections official shall cause the certificate of execution to be filed in the office of the clerk of the sentencing court within ten days after the execution. The original or a certified copy of the death certificate, postmortem examination, and any autopsy report shall be filed with the clerk of the sentencing court within ten days of receipt by the warden or corrections official.
Source: SL 2008, ch 117, § 39.
23A-27A-42. Death penalty prohibited for defendant younger than eighteen when offense committed.
The penalty of death may not be imposed upon any defendant for any offense committed when the defendant was less than eighteen years of age.
Source: SL 2004, ch 166, § 1.
23A-27A-43. Immunity of persons participating and cooperating in execution.
Any person or party participating in good faith in the execution of an inmate under this chapter is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, and has the same immunity for participation in any judicial proceeding resulting from the execution. Immunity also extends in the same manner to any persons who in good faith cooperate in the execution of an inmate under this chapter.
Source: SL 2008, ch 117, § 40.
23A-27A-44. Effect of amendment and repeal of sections.
As to any defendant who has been sentenced to death and who is awaiting execution prior to July 1, 2008, the amendment and repeal of existing sections and enactment of new sections in this chapter do not impair or affect any act done, offense committed, or right accruing, accrued, or acquired, or liability, penalty, forfeiture, or punishment incurred prior to July 1, 2008. However, the provisions of existing statute may be asserted, enforced, prosecuted, or inflicted, as fully and to the same extent as if the amendment and repeal of existing sections and enactment of new sections in this chapter had not been subsequently enacted.
Source: SL 2008, ch 117, § 42.
CHAPTER 23A-28
RESTITUTION TO VICTIMS OF CRIME
23A-28-1 Policy of state--Enforcement of order.
23A-28-2 Definition of terms.
23A-28-3 Plan of restitution--Present inability to make restitution--No pecuniary damages suffered--Hearing--Condition of parole.
23A-28-4 Submission of restitution plan to court--Approval or modification.
23A-28-5 Factors considered in formulating restitution plan.
23A-28-6 Notice to victims of restitution plan--Civil action against defendant.
23A-28-7 Compliance with restitution plan as condition of probation or suspension--Payments to clerk.
23A-28-8 Failure to comply as violation of conditions of probation--Modification of plan by court--Contempt.
23A-28-9 Civil remedies of victims unimpaired--Restitution payments set off.
23A-28-10 23A-28-10. Repealed by SL 1986, ch 196, § 5
23A-28-11 Community service restitution--Plan preparation, approval and modification--Recipients exempt from providing reemployment assistance and workers' compensation insurance and certain civil liability.
23A-28-12 Minor victim's medical, psychological or psychiatric treatment or foster care--Sentence requiring payment.
23A-28-13 Unlawful taking of money from store or mercantile establishment.
23A-28-14 Release of certain information to victims of delinquent act of juvenile.
23A-28-15 Support for minor child victim--Vehicular homicide of parent.
23A-28-1. Policy of state--Enforcement of order.
It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator's criminal activities to the extent that the violator is reasonably able to do so. An order of restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.
Source: SL 1978, ch 178, § 355; SL 1985, ch 192, § 50; SL 1997, ch 143, § 1.
23A-28-2. Definition of terms.
Terms used by this chapter mean:
(1) "Community service restitution," public service work provided under court order that benefits the general public which includes: charitable agencies, governmental agencies, educational institutions, the handicapped, the elderly, the ecology, the church of the offender's choice, and any other agencies that the sentencing judge deems reasonably rehabilitative to the offender. No work service may result in gain to any private individual or to a private corporation;
(2) "Criminal activities," includes any crime for which there is a plea of guilty or verdict of guilty upon which a judgment of conviction may be rendered and any other crime committed after June 30, 1979, which is admitted by the defendant, whether or not prosecuted. However, the term does not include petty offenses;
(3) "Pecuniary damages," all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium. Without limitation, the term includes damages for wrongful death;
(4) "Restitution," full or partial payment of pecuniary damages to a victim;
(5) "Victim," any person, as defined in subdivision 22-1-2(31), who has suffered pecuniary damages as a result of the defendant's criminal activities, including any person or government agency who has by contract or by statute undertaken to indemnify another or to pay or provide a specified or determinable amount or benefit upon determinable contingencies. Any victim who has suffered pecuniary damages has priority of claim as opposed to any person or government agency who has a claim to indemnity or subrogation as a result of the same defendant's criminal activity.
Source: SL 1978, ch 177, § 1; SDCL Supp, § 23-48A-1; SL 1978, ch 178, § 354; SL 1979, ch 159, § 21; SL 1981, ch 191, § 1; SL 1994, ch 157, § 5; SL 1995, ch 135; SL 2021, ch 109, § 1.
23A-28-3. Plan of restitution--Present inability to make restitution--No pecuniary damages suffered--Hearing--Condition of parole.
If the sentencing court orders the defendant to the county jail, suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in cooperation with the court services officer assigned to the defendant, promptly prepare a plan of restitution, including the name and address of each victim, a specific amount of restitution to each victim, and a schedule of restitution payments. If the defendant is presently unable to make any restitution, but there is a reasonable possibility that the defendant may be able to do so at some time during the defendant's probation period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that no person suffered pecuniary damages as a result of the defendant's criminal activities, the defendant shall so state. If the defendant contests the amount of restitution recommended by the court services officer, the defendant is entitled to a hearing at which the court shall determine the amount. If the sentencing court orders the defendant to a state correctional facility and does not suspend the sentence, the court shall set forth in the judgment the names and specific amount of restitution owed each victim. The Department of Corrections shall establish the collection schedule for court-ordered restitution while the defendant is in the state correctional facility and on parole. The Board of Pardons and Paroles shall require, as a condition of parole, that the defendant pay restitution ordered by the court.
Source: SL 1978, ch 177, § 2; SDCL Supp, §§ 23-48A-2, 23-48A-3; SL 1978, ch 178, § 356; SL 1985, ch 192, § 5; SL 1986, ch 196, § 1; SL 1987, ch 179, § 1; SL 1997, ch 143, § 2; SL 1999, ch 124, § 1; SL 2023, ch 82, § 47.
23A-28-4. Submission of restitution plan to court--Approval or modification.
The defendant's plan of restitution and the comments of defendant's court services officer shall be submitted promptly to the court. The court shall promptly enter an order approving the plan or modifying it and providing for restitution payments to the extent that the defendant is or may become reasonably able to make restitution, taking into account the factors enumerated in § 23A-28-5. The court thereafter may modify the plan at any time upon the defendant's request or upon the court's own motion.
Source: SL 1978, ch 177, § 5; SDCL Supp, § 23-48A-4; SL 1978, ch 178, § 357; SL 1982, ch 28, § 20.
23A-28-5. Factors considered in formulating restitution plan.
The court services officer when assisting the defendant in preparing the plan of restitution and the court before approving or modifying the plan of restitution shall consider the physical and mental health and condition of the defendant, the defendant's age, the defendant's education, the defendant's employment circumstances, the defendant's potential for employment and vocational training, the defendant's family circumstances, the defendant's financial condition, the number of victims, the pecuniary damages of each victim, what plan of restitution will most effectively aid the rehabilitation of the defendant, and each victim, and such other factors as may be appropriate.
Source: SL 1978, ch 177, § 2; SDCL Supp, § 23-48A-3; SL 1978, ch 178, § 357; SL 1986, ch 196, § 2; SL 1987, ch 179, § 2; SL 1999, ch 124, § 2.
23A-28-6. Notice to victims of restitution plan--Civil action against defendant.
The court services officer shall provide each known victim a copy of the court's order approving or modifying the plan of restitution for any defendant not serving his sentence in a state correctional facility. The executive director of the Board of Pardons and Paroles shall provide each known victim a copy of the schedule of restitution for each inmate placed on parole. If the victim is not satisfied with the approved or modified plan of restitution, the victim's exclusive remedy is a civil action against the defendant, which, if successful, may include attorney's fees.
Source: SL 1978, ch 178, § 359; SL 1979, ch 159, § 2; SL 1986, ch 196, § 3; SL 1987, ch 179, § 3; SL 1999, ch 124, § 3; SL 2023, ch 82, § 48.
23A-28-7. Compliance with restitution plan as condition of probation or suspension--Payments to clerk.
Compliance with the plan of restitution as approved or modified by the court shall be a condition of the defendant's probation or suspension. Restitution payments shall be made to the office of the clerk unless otherwise ordered by the court.
Source: SL 1978, ch 177, § 2; SDCL Supp, § 23-48A-2; SL 1978, ch 178, § 357.
23A-28-8. Failure to comply as violation of conditions of probation--Modification of plan by court--Contempt.
Failure of the defendant to comply with § 23A-28-3 or to comply with the plan of restitution as approved or modified by the court constitutes a violation of the conditions of probation. Without limitation, the court may modify the plan of restitution or extend the period of time for restitution, regardless of whether the defendant is no longer on probation. If the defendant fails to make payment as ordered by the court, the defendant may be held in contempt of the court's order.
Source: SL 1978, ch 177, § 4; SDCL Supp, § 23-48A-6; SL 1978, ch 178, § 360; SL 2001, ch 121, § 1.
23A-28-9. Civil remedies of victims unimpaired--Restitution payments set off.
Proceedings under this chapter do not limit or impair the rights of victims to sue and recover damages from the defendant in a civil action. However, any restitution payment by the defendant to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event.
Source: SL 1978, ch 178, § 361; SL 1986, ch 196, § 4.
23A-28-11. Community service restitution--Plan preparation, approval and modification--Recipients exempt from providing reemployment assistance and workers' compensation insurance and certain civil liability.
If the sentencing court orders suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in cooperation with the court services officer assigned to the defendant, promptly prepare a plan of community service restitution, including the number of work hours to be performed, where the community service work is to be performed, and the time necessary for completion of the community service work. The plan of community service restitution shall be submitted promptly to the court. The court may enter an order approving the plan or modifying it. Any defendant sentenced to community service restitution is not an agent or employee of the recipients of these services. Any recipient of community service restitution, described in subdivision § 23A-28-2(1), does not have to provide the defendant with reemployment assistance insurance pursuant to Title 61 nor with workers' compensation insurance pursuant to Title 62. Recipients and their officers, agents, and employees are immune from any cause of action for civil damages brought by the defendant or any third party if the cause of action arises from any act of commission or omission by the recipient or any of its officers, agents, or employees or any act of commission or omission by the defendant and the acts arise out of or are in connection with a community service restitution plan, except when the cause of action is the result of gross negligence or willful and wanton misconduct of the recipient or its officers, agents, or employees and except to the extent that the recipient has purchased liability insurance. Nothing in this section relieves individual defendants from responsibility for their individual acts.
Source: SL 1981, ch 191, § 2; SL 1986, ch 197; SL 2019, ch 216, § 28.
23A-28-12. Minor victim's medical, psychological or psychiatric treatment or foster care--Sentence requiring payment.
Anyone convicted under subdivision 22-22-1(1) or (5), § 22-22-7, subdivision 22-49-2(2), § 22-22-24.3, or § 26-10-1 shall be required as part of the sentence imposed by the court to pay all or part of the cost of any necessary medical, psychological, or psychiatric treatment, or foster care of the minor resulting from the act or acts for which the defendant is convicted.
Source: SL 1984, ch 182; SL 1996, ch 155; SL 1997, ch 143, § 3; SL 2020, ch 89, § 7.
23A-28-13. Unlawful taking of money from store or mercantile establishment.
Any adult or emancipated minor as defined in § 25-5-24 or the parents or guardian of any unemancipated minor, or any employee of any store or mercantile establishment who takes possession of any money belonging to the store or other mercantile establishment without the consent of the owner and with the intention of converting the money to the person's own use is liable to the owner for the amount taken. In addition, the merchant is entitled to the amount of money taken, or fifty dollars, whichever is greater, and attorney fees and costs.
Source: SL 1994, ch 179, § 2.
23A-28-14. Release of certain information to victims of delinquent act of juvenile.
Upon written request of the victim of any act of juvenile delinquency, the prosecuting attorney shall provide the name and address of any child adjudicated to have committed the delinquent act and the name and address of the child's parents, guardian, or custodian.
The term, victim, means a person who is defined as a victim in subdivision 22-1-2(53) or in § 23A-28C-4, or, if the victim is a child, the victim's parents, guardian, or custodian.
Upon further written application and demonstration of need, the court may, in its discretion, order specified additional information to be disclosed to the victim.
Source: SL 1995, ch 136.
23A-28-15. Support for minor child victim--Vehicular homicide of parent.
If a defendant is convicted of vehicular homicide pursuant to § 22-16-41 and the deceased victim of the offense was a parent of a minor child, the sentencing court may order the defendant to pay restitution to each of the victim's children until each child reaches age eighteen, or age nineteen if the child is a full-time student in a secondary school.
The court shall consider all relevant factors in determining a support amount that is reasonable and necessary for the maintenance of each child, including:
(1) The financial needs and resources of the child;
(2) The financial needs and resources of the surviving parent, or if no other parent is alive or capable of caring for the child, the guardian of the child, including the state if the state is the guardian;
(3) The standard of living to which the child is accustomed;
(4) The physical and emotional condition of the child;
(5) The child's educational needs;
(6) The child's physical and legal custody arrangements; and
(7) The reasonable work-related childcare expenses of the surviving parent or guardian.
Pursuant to § 23A-28-7, a defendant ordered to pay support under this section shall make payments to the clerk of courts as trustee for remittance to the child's surviving parent or guardian. The child's surviving parent or guardian must expend the moneys for the benefit of the child. The clerk shall remit payment to the surviving parent or guardian within thirty business days of receipt by the clerk. The clerk shall deposit all payments no later than the next business day after receipt.
If a defendant ordered to pay support under this section is incarcerated and unable to pay the required support while incarcerated, the defendant has up to one year after release from incarceration to begin payment, including entering a payment plan to address any arrearage. If the defendant's support payments are set to terminate but the defendant's obligation is not paid in full, the support payments must continue until the entire arrearage is paid.
If a civil action is brought on behalf of a child against the defendant prior to a sentencing court ordering support payments as restitution under this section, and the child obtains a judgment in the civil action, the court may not order support under this section. If the sentencing court orders support under this section and the child later obtains a judgment in a civil action brought on behalf of the child, the court must offset the support order by the amount of the judgment awarded in the civil action pursuant to § 23A-28-9.
Source: SL 2024, ch 93, § 1.
23A-28A-1
Contracts with accused or convicted persons for publications regarding crime--Attorney
general to receive copy of contract and moneys owed.
23A-28A-2
Attorney general's proceedings under escrow provisions--Notice to accused or convicted
person--Application by accused or convicted person for hearing--Orders by court.
23A-28A-3
Escrow account for benefit of victim--Civil action by victim.
23A-28A-4
Notices of escrow moneys held by attorney general.
23A-28A-5
Failure of victim to bring civil action--Action by governmental entity for costs of
prosecution and imprisonment.
23A-28A-6
Reimbursement of governmental entities for costs of prosecution and imprisonment--Crediting of proceeds.
23A-28A-7
Acquittal of accused person--Payment of escrowed moneys.
23A-28A-8
No actions brought against escrowed moneys--Payment to convicted person.
23A-28A-9
Person not guilty as result of mental illness deemed convicted person.
23A-28A-10
Person unfit for trial as result of mental illness--Action by attorney general to determine
disposition of escrow account.
23A-28A-11
Commencement of five-year period for bringing action.
23A-28A-12
Charges and costs of attorney general deducted from escrow account.
23A-28A-13
Legal representation of accused or convicted person--Use of escrowed moneys.
23A-28A-14
Acts by accused or convicted person to defeat purpose of chapter void.
23A-28A-1. Contracts with accused or convicted persons for publications regarding crime--Attorney general to receive copy of contract and moneys owed.
Every person, firm, corporation, limited liability company, partnership, association, or other legal entity contracting with any person or the representative or assignee of any person, accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of any movie, book, magazine article, tape recording, phonograph record, radio, or television presentation, live entertainment of any kind, or from the expression by the accused or convicted person's thoughts, feelings, opinion, or motions regarding such crime, shall submit a copy of such contract to the attorney general and pay over to the attorney general any moneys or other personal property which would otherwise, by terms of such contract, be owing to the person so accused or convicted, the person's representatives or assignees.
Source: SL 1982, ch 184, § 1; SL 1994, ch 351, § 43.
23A-28A-2. Attorney general's proceedings under escrow provisions--Notice to accused or convicted person--Application by accused or convicted person for hearing--Orders by court.
When any contract described in § 23A-28A-1 is submitted to the attorney general or the attorney general receives information of the existence of such a contract, notice of intent to proceed under the provisions of this chapter shall be given by the attorney general, if he contends such contract is within the purview of this chapter, to any accused or convicted person who is a party in interest to the contract and to all other persons known to have any interest in the contract. Within thirty days after service of notice, any accused or convicted person claiming the right to possession of such moneys or other personal property under the contract may make application to any circuit court for permission to show cause why said moneys or other personal property should not be paid over to the attorney general and placed in escrow under the terms of this chapter. Any show cause proceedings shall be set for hearing on a day not more than thirty days therefrom; at the hearing any accused person, convicted person, or party in interest who has made application may show by competent evidence that the money or personal property is not subject to being escrowed under the terms of this chapter. If the court finds that the moneys and personal property are not subject to the escrow provisions under this chapter, the court shall order that the escrow provisions of this chapter do not apply; and the court shall order the escrowing of the moneys if it determines that such moneys and personal property are subject to the escrow provisions of this chapter. The procedure governing any proceedings, except as herein provided, shall be conducted pursuant to Title 15.
Source: SL 1982, ch 184, § 1A.
23A-28A-3. Escrow account for benefit of victim--Civil action by victim.
The attorney general shall deposit such moneys in an escrow account and shall escrow such personal property in an appropriate manner for the benefit of and payable to any victim or legal representative of any victim of crimes committed by such convicted person, or by such accused person, but only if such accused person is eventually convicted of the crime and provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against such person or his representatives.
Source: SL 1982, ch 184, § 2.
23A-28A-4. Notices of escrow moneys held by attorney general.
The attorney general, at least once every year for five years from the date he received such moneys or other properties, shall cause to have published a legal notice in newspapers of general circulation in the county wherein the crime was committed advising victims that escrow moneys or other property are now available to satisfy money judgments pursuant to this chapter. The attorney general may, in his discretion, provide for such additional notice as he deems necessary.
Source: SL 1982, ch 184, § 3.
23A-28A-5. Failure of victim to bring civil action--Action by governmental entity for costs of prosecution and imprisonment.
If a victim or legal representative of any victim of crimes committed by such convicted person fails to bring a civil action after four years from the date of legal publication, any governmental entity incurring the cost of prosecuting and convicting the accused, or incurring the cost of the convicted person's imprisonment has one year in which to bring a civil action in a court of competent jurisdiction and recover money judgment for damages against such person or his representatives, to be paid or satisfied from the escrow account.
Source: SL 1982, ch 184, § 4.
23A-28A-6. Reimbursement of governmental entities for costs of prosecution and imprisonment--Crediting of proceeds.
Moneys or personal property obtained by governmental entities pursuant to this chapter shall be reimbursement for actual costs of prosecution and imprisonment and shall be reimbursed to the agency account from which funds were originally expended.
Source: SL 1982, ch 184, § 13.
23A-28A-7. Acquittal of accused person--Payment of escrowed moneys.
Upon dismissal of charges or acquittal of any accused person the attorney general shall immediately pay over or satisfy to such accused person the moneys or other property in the escrow account established on behalf of such accused person.
Source: SL 1982, ch 184, § 5.
23A-28A-8. No actions brought against escrowed moneys--Payment to convicted person.
Upon a showing by any convicted person that five years have lapsed from the establishment of such escrow account and further that no actions are pending against such convicted person pursuant to this chapter, the attorney general shall immediately pay over or satisfy any moneys or other property in the escrow account to such person or his legal representatives.
Source: SL 1982, ch 184, § 6.
23A-28A-9. Person not guilty as result of mental illness deemed convicted person.
For purposes of this chapter, a person determined to be not guilty as a result of the defense of mental illness or defect pursuant to chapter 23A-10 of the criminal procedure laws shall be deemed to be a convicted person.
Source: SL 1982, ch 184, § 7.
23A-28A-10. Person unfit for trial as result of mental illness--Action by attorney general to determine disposition of escrow account.
If it is found pursuant to chapter 23A-10A, that a person accused of a crime is unfit to proceed as a result of mental illness or defect because such person lacks the capacity to understand the proceedings against him or to assist in his own defense, the attorney general shall bring an action under the civil procedure laws and rules of this state to determine the disposition of the escrow account.
Source: SL 1982, ch 184, § 8.
23A-28A-11. Commencement of five-year period for bringing action.
Notwithstanding any inconsistent provision of the civil procedure laws and rules with respect to the timely bringing of an action, the five-year period provided for in this chapter does not begin to run until an escrow account has been established.
Source: SL 1982, ch 184, § 9.
23A-28A-12. Charges and costs of attorney general deducted from escrow account.
Notwithstanding the foregoing provisions of this chapter, the attorney general may deduct from the escrow account, a sum equal to the service charges for the account and the actual costs of publication incurred by the attorney general prior to any other distribution of moneys or other property.
Source: SL 1982, ch 184, § 10.
23A-28A-13. Legal representation of accused or convicted person--Use of escrowed moneys.
Notwithstanding the foregoing provisions of this chapter, the attorney general shall transfer proceeds from an escrow account to any person accused or convicted of a crime upon the order of a court of competent jurisdiction after a showing by such person that the proceeds shall be used for the exclusive purpose of retaining legal representation at any stage of the proceedings against such person, including the appeals process, after first making adequate provisions to protect the victims of the crime pursuant to § 23A-28A-4.
Source: SL 1982, ch 184, § 11.
23A-28A-14. Acts by accused or convicted person to defeat purpose of chapter void.
Any action taken by any person accused or convicted of a crime, whether by way of execution of a power of attorney, creation of corporate entities or otherwise, to defeat the purpose of this chapter is void as against the public policy of this state.
Source: SL 1982, ch 184, § 12.
CHAPTER 23A-28B
CRIME VICTIMS' COMPENSATION PROGRAM
23A-28B-1 Definitions.
23A-28B-2 Rights of resident victim of out-of-state crime.
23A-28B-3 Crime Victims' Compensation Commission--Apportionment of members.
23A-28B-4 Duties of commission.
23A-28B-5 Membership of commission--Terms of office--Vacancies.
23A-28B-6 Administration of commission.
23A-28B-7 Commission meetings--Quorum.
23A-28B-8 Compensation and expenses for commission members.
23A-28B-9 Preponderance of evidence required for receipt of compensation.
23A-28B-10 No right to compensation--Availability of funds.
23A-28B-11 Application for compensation.
23A-28B-12 Furnishing application forms.
23A-28B-13 Documentation required with application--Notice of rejection.
23A-28B-14 Amended application--Additional material.
23A-28B-15 Application for compensation on behalf of minor or incompetent.
23A-28B-16 State and local agencies to provide information to Department of Social Services.
23A-28B-17 Subpoenas authorized for investigation of eligibility.
23A-28B-18 Circumstances permitting compensation.
23A-28B-19 Compensation for economic losses due to personal injury or death.
23A-28B-20 Calculating compensation--Standard.
23A-28B-21 Limit of compensation.
23A-28B-22 Compensation reduced by amount of collateral payment.
23A-28B-23 Conviction of person for criminal conduct not required for award of compensation.
23A-28B-24 Payment of compensation--Lump sum--Exception for protracted disability--Award not subject to process.
23A-28B-25 Circumstances not permitting award of compensation.
23A-28B-26 Relative or household member of offender eligible for compensation.
23A-28B-27 Emergency award of compensation--Amount--Excess amount repaid.
23A-28B-28 Department recommendation or order upon review and investigation of application--Notice.
23A-28B-29 23A-28B-29. Repealed by SL 1998, ch 150, § 3
23A-28B-30 Fees and mileage allowance for witness in compensation hearing.
23A-28B-31 Order entered on all claims submitted under chapter--Content.
23A-28B-32 Request for review of department order--Hearing.
23A-28B-32.1 Department permitted to amend commission order.
23A-28B-33 Promulgation of rules for administration of chapter.
23A-28B-34 Department subrogated to claimant's cause of action--Action against party liable for claimant's injury.
23A-28B-35 Fraudulent claim prohibited--Violation as misdemeanor or felony.
23A-28B-36 Confidentiality of records and reports.
23A-28B-37 Application hearing open to public--Exceptions.
23A-28B-38 Privileged communications.
23A-28B-39 Assistant attorney general to advise department and commission--Litigation assistance.
23A-28B-40 Crime victims' compensation fund--Establishment--Purposes.
23A-28B-40.1 Emergency expenses--Requests for reimbursement.
23A-28B-41 Payments from fund--Warrants--Vouchers.
23A-28B-42 Compensation surcharge for certain crimes--Waiver.
23A-28B-43 Collection of compensation surcharge--Disbursement.
23A-28B-44 No awards before July 1, 1992.
23A-28B-1. Definitions.
Terms used in this chapter mean:
(1) "Claimant," any person entitled to apply for compensation pursuant to this chapter;
(2) "Commission," the South Dakota Crime Victims' Compensation Commission as established by § 23A-28B-3;
(3) "Crime," conduct that occurs or is attempted in this state, including that arising from domestic violence, human trafficking, and acts of terrorism, as defined in 18 USC § 2331 as of January 1, 1997, which conduct results in personal injury or death and is punishable as a felony or misdemeanor, or would be so punishable except that the person engaging in the conduct lacked the capacity to commit the crime under the laws of this state. The term does not include conduct arising out of the ownership, maintenance, or use of a motor vehicle, boat, or aircraft unless the conduct was intended to cause or did recklessly cause personal injury or death or unless the conduct constitutes a violation of § 32-23-1, 22-16-41, or 22-18-36;
(4) "Department," Department of Public Safety;
(5) "Dependent," any spouse, parent, grandparent, stepparent, child, stepchild, adopted child, grandchild, brother, sister, half brother, half sister, or parent of the spouse of a deceased victim who was wholly or partially dependent upon the victim's income at the time of the victim's death, including any child of the victim born after the victim's death;
(6) "Economic loss," medical and hospital expenses, loss of earnings, loss of future earnings, funeral and burial expenses, homicide scene cleanup expenses, limited personal property losses, mileage, security devices, and loss of economic benefits or support to dependents, including home maintenance and child care expenses;
(7) "Fund," the crime victims' compensation fund established by § 23A-28B-40;
(8) "Law enforcement officer," any person as defined in § 22-1-2;
(9) "Medical expense," the cost of all medical and dental services, mental health counseling, dental and prosthetic devices, eyeglasses or other corrective lenses, including services rendered in accordance with any method of healing recognized by the laws of this state or the United States;
(10) "Person," any natural person;
(11) "Personal injury," actual bodily harm or emotional distress;
(12) "Victim," any person who suffers personal injury or death as a direct result of:
(a) A crime, including a federal crime occurring in this state;
(b) A good faith effort by the person to prevent the commission of a crime; or
(c) A good faith effort by the person to apprehend a person suspected of engaging in a crime;
(13) "Homicide scene cleanup expenses," the cost of cleaning the scene of a homicide, if the scene is a residence or an automobile, including removing, or attempting to remove, from the crime scene, blood, dirt, stains, or other debris caused by the crime or the processing of the crime scene. Compensation may be paid for services provided by persons who are not members of the immediate family of the victim, including the victim's spouse, parents, siblings and children, or persons who were not living with the victim at the time of the crime;
(14) "Personal property losses," the replacement value of property, including clothing and bedding, used for evidentiary purposes;
(15) "Security devices," the cost to repair or install locks, door eyeholes, security lights, or other similar security and safety measures necessary to ensure the safety of the victim.
Source: SL 1991, ch 201, § 1; SL 1993, ch 183, § 2; SL 1994, ch 180, § 1; SL 1997, ch 144, § 1; SL 1997, ch 145, § 1; SL 2001, ch 122, §§ 1, 2; SL 2018, ch 145, § 1; SL 2020, ch 89, § 6.
23A-28B-2. Rights of resident victim of out-of-state crime.
If a resident of South Dakota is a victim of a crime as defined in § 23A-28B-1, but the crime occurred outside the boundaries of this state, the resident has the same rights under the provisions of this chapter as if the crime had occurred within this state upon a showing that the state, territory, country, or political subdivision of a country in which the crime occurred does not have a crime victims' compensation law which covers the injury or death suffered by the resident.
Source: SL 1991, ch 201, § 2.
23A-28B-3. Crime Victims' Compensation Commission--Apportionment of members.
There is created the South Dakota Crime Victims' Compensation Commission, which shall consist of five residents of the state, three of whom shall be appointed by the Governor as follows:
(1) One member shall be a law enforcement officer with a minimum of five years' experience in a law enforcement agency which has among its primary duties the investigation of violent crimes;
(2) One member shall be a physician or a person who, in the opinion of the Governor, has experience or knowledge in the processing and evaluation of medical claims; and
(3) One member shall be a person with experience in providing victim assistance services, either through employment with a governmental agency which provides such services or as an officer, employee, or volunteer of a nonprofit, charitable crime victims' organization established pursuant to the laws of this state.
One member of the commission shall be appointed by the Chief Justice of the state Supreme Court. One member of the commission shall be appointed by the attorney general.
Source: SL 1991, ch 201, § 3; SL 2011, ch 74, § 6.
23A-28B-4. Duties of commission.
The commission shall:
(1) Hear and determine claims for compensation as provided in § 23A-28B-32;
(2) Promulgate rules, pursuant to chapter 1-26, governing conduct of hearings before the commission;
(3) Assist the department in publicizing the availability of and procedures for obtaining compensation pursuant to the provisions of this chapter; and
(4) Assist the department in developing, implementing, and evaluating effective crime victim compensation policies and procedures.
Source: SL 1991, ch 201, § 4; SL 1998, ch 150, § 1.
23A-28B-5. Membership of commission--Terms of office--Vacancies.
The term of office of any member of the commission is three years or until the member's successor is appointed and qualified. However, initial appointments shall be as follows: one member shall be appointed by the Governor for one year, one member shall be appointed by the Governor for two years, one member shall be appointed by the Governor for three years, one member shall be appointed by the Chief Justice of the Supreme Court for two years, and one member shall be appointed by the attorney general for three years.
Any vacancy arising from other than natural expiration of a term shall be filled for the remainder of the unexpired term only. Such appointee shall meet the qualifications prescribed by law for the vacated position. Any appointment to the commission becomes effective on the thirty-first day of October, unless an appointment is for an unexpired term. The appointee's term shall expire on October thirtieth in the third year of appointment. Any member may be removed by the Governor for cause. If any member is removed by the Governor for cause, the officer who appointed the member shall appoint the replacement. A chair of the commission shall be chosen annually from the membership of the commission by a majority of the members.
Source: SL 1991, ch 201, § 5; SL 2004, ch 167, § 1; SL 2012, ch 16, § 10.
23A-28B-6. Administration of commission.
The commission shall be administered under the direction and supervision of the department and the secretary thereof, but shall retain the quasi-judicial, quasi-legislative, advisory, other nonadministrative, and special budgetary functions (as defined in § 1-32-1) otherwise vested in it and shall exercise those functions independently of the secretary of the department.
Source: SL 1991, ch 201, § 6.
23A-28B-7. Commission meetings--Quorum.
The commission shall meet as necessary to carry out its functions pursuant to the provisions of this chapter. A meeting may be called by the chairman or upon the request of any three members of the commission. Any meeting shall be held at a place and time fixed by the chairman. A majority of the duly appointed members of the commission constitutes a quorum to transact its business.
Source: SL 1991, ch 201, § 7.
23A-28B-8. Compensation and expenses for commission members.
Each member of the commission shall be paid mileage at the same rate as allowed for state employees and shall receive per diem compensation and allowable expense reimbursement in an amount set pursuant to § 4-7-10.4 for time spent attending commission meetings. However, no per diem may be paid to any commission member who is a state employee. The per diem shall be paid on vouchers verified and approved by the secretary of the department.
Source: SL 1991, ch 201, § 8.
23A-28B-9. Preponderance of evidence required for receipt of compensation.
The department or commission, as applicable, shall award victims' compensation as authorized by the provisions of this chapter if it finds by a preponderance of the evidence that the requirements for compensation have been met.
Source: SL 1991, ch 201, § 9.
23A-28B-10. No right to compensation--Availability of funds.
The provisions of this chapter do not create a right to receive victims' compensation. Such compensation is only payable to the extent that funds for such purpose are available within the crime victims' compensation fund.
Source: SL 1991, ch 201, § 10.
23A-28B-11. Application for compensation.
An application for compensation shall be on a form prescribed by the department which sets forth:
(1) The victim's name and address, the claimant's name and address, and the relationship of the claimant to the victim;
(2) If the victim is deceased, the name and address of each dependent of the victim and the extent to which each is dependent;
(3) The date and the nature of the crime underlying the claim;
(4) The law enforcement agency or officer to whom the crime was reported and the date of the report;
(5) The nature and extent of the injuries sustained by the victim, the name and address of any person who gave medical treatment to the victim, and the name and address of any hospital where the victim received medical treatment;
(6) The total amount of economic loss that the victim, a dependent, or the claimant sustained as a result of the crime;
(7) The amount of benefits or advantages that the victim, a dependent, or other claimant has received or may be entitled to receive from any collateral source for economic loss resulting from the crime, including the name of each collateral source;
(8) Whether the claimant is a spouse, parent, child, brother or sister of the offender, or an accomplice of the offender who committed the crime;
(9) A release authorizing the department to obtain any report, document, or other information relating to the claim; and
(10) Any additional information which the department deems necessary.
Source: SL 1991, ch 201, § 11; SL 1997, ch 145, § 2; SL 2002, ch 120, § 1.
23A-28B-12. Furnishing application forms.
The department shall furnish law enforcement agencies with victims' compensation application forms. A law enforcement agency investigating a crime shall provide forms to any person who may be eligible to file a claim pursuant to this chapter.
Source: SL 1991, ch 201, § 12.
23A-28B-13. Documentation required with application--Notice of rejection.
The department may require that documentation substantiating the facts stated in an application for compensation be submitted with the application. If the department determines that an application does not contain the required information or that the facts stated in the application have not been substantiated, it shall notify the applicant in writing of the specific additional documentation required and that the applicant has thirty days from the date of the notice in which to furnish such information to the department. The department shall reject the application of a claimant who fails to file the requested information within the time specified unless the applicant requests, and the department grants, an extension of time in which to furnish such information.
Source: SL 1991, ch 201, § 13.
23A-28B-14. Amended application--Additional material.
A claimant may file an amended application or additional substantiating materials to correct inadvertent errors or omissions at any time before the department or the commission disposes of the original application. Any additional material filed pursuant to this section shall be considered to have been filed at the same time as the original application.
Source: SL 1991, ch 201, § 14.
23A-28B-15. Application for compensation on behalf of minor or incompetent.
An application for compensation may be made on a minor's behalf by the minor's parent, guardian, or conservator. An application by a protected person may be made on the protected person's behalf by the person's guardian or conservator.
Source: SL 1991, ch 201, § 15; SL 1993, ch 213, § 109; SL 2004, ch 167, § 2.
23A-28B-16. State and local agencies to provide information to Department of Social Services.
Upon request by the department, any state or local agency, including a law enforcement agency, shall complete and return to the department a certification form to provide any information requested by the department to help decide whether a person is eligible to receive an award of compensation under this chapter. If requested by the department, an agency shall also make available all reports, files and other appropriate information to assist the department in making an eligibility decision.
Source: SL 1991, ch 201, § 16.
23A-28B-17. Subpoenas authorized for investigation of eligibility.
The department or commission may issue subpoenas for persons or documents as provided by § 15-6-45 for any investigation or hearing conducted pursuant to this chapter. Failure to comply with a subpoena issued pursuant to this chapter is punishable as contempt in court as provided by chapter 21-34.
Source: SL 1991, ch 201, § 17.
23A-28B-18. Circumstances permitting compensation.
The department may order payment of compensation:
(1) For the benefit of the injured person;
(2) In the event of personal injury to or death of the victim, to any person responsible for maintenance of the victim who has suffered pecuniary loss or incurred expenses as a result of such injury or death; and
(3) In the event of death of the victim, for the benefit of one or more dependents of the victim. If two or more such dependents are entitled to an award of compensation, the award shall be apportioned by the department among the dependents in a manner which the department determines to be fair and equitable.
Source: SL 1991, ch 201, § 18.
23A-28B-19. Compensation for economic losses due to personal injury or death.
The department or commission, as applicable, may order payment of victims' compensation in accordance with the provisions of this chapter for reasonable economic losses incurred as a direct result of personal injury to or death of a victim, including any economic loss as defined in § 23A-28B-1.
Source: SL 1991, ch 201, § 19.
23A-28B-20. Calculating compensation--Standard.
For the purpose of calculating compensation to be awarded pursuant to this chapter, the department shall establish uniform standards for compensation under this chapter, taking into consideration the rates and amounts of compensation payable for injuries and for death under the laws of this state and the United States and availability of funds under this chapter. Standards for compensation shall be established by rules promulgated by the department pursuant to chapter 1-26. Loss of earnings, loss of future earnings, and loss of support shall be determined on the basis of the victim's average monthly earnings for the six months immediately preceding the date of injury, or the monthly minimum wage as of the date of the crime underlying the claim, whichever is less. The monthly minimum wage shall be based upon the federal hourly minimum wage in effect as of the date of the crime multiplied by 173.2 hours per month.
Source: SL 1991, ch 201, § 20; SL 1997, ch 145, § 3.
23A-28B-21. Limit of compensation.
Compensation granted to any claimant suffering economic loss as the result of injury to or death of any one victim may not exceed fifteen thousand dollars.
Source: SL 1991, ch 201, § 21; SL 1999, ch 125, § 1.
23A-28B-22. Compensation reduced by amount of collateral payment.
Any award of victims' compensation made pursuant to this chapter shall be reduced by the amount of any payment received, or to be received, by the victim from any collateral source as a result of the conduct giving rise to the application for compensation. For purposes of this section, the term, collateral source, means a source of income or other benefits or advantages for economic loss which is otherwise compensable under the provisions of this chapter and which the victim or claimant has received, or which is readily available from:
(1) The offender or any third party who is liable for the offender's conduct;
(2) The government of the United States or any agency thereof, a state or any of its political subdivisions, or an instrumentality of two or more states, unless the law providing for such benefits mandates that they be excess or secondary to benefits available under this chapter;
(3) Social security, medicare, and medicaid;
(4) Temporary nonoccupational disability insurance;
(5) Workers compensation;
(6) Any wage continuation program of an employer;
(7) Any proceeds of a contract of insurance payable to the victim for economic loss sustained as a result of the crime; or
(8) Any contract providing prepaid hospital or other health care services or benefits for disability.
Source: SL 1991, ch 201, § 22.
23A-28B-23. Conviction of person for criminal conduct not required for award of compensation.
An award of compensation may be made without regard to whether any person is prosecuted or convicted for the criminal conduct that is the basis of the award. Proof of conviction of a person whose conduct gives rise to a claim is conclusive evidence that the crime was committed, unless an application for rehearing, an appeal of the conviction or a petition for certiorari is pending, or a rehearing or new trial has been ordered. The department may suspend proceedings under this chapter for any period it deems appropriate on the grounds that a prosecution for the conduct giving rise to a claim has been commenced or is imminent.
Source: SL 1991, ch 201, § 23.
23A-28B-24. Payment of compensation--Lump sum--Exception for protracted disability--Award not subject to process.
An award of victims' compensation under this chapter shall be paid in a lump sum. However, in a case involving death or protracted disability, an award may be paid in periodic payments. The department may pay any portion of an award directly to the provider of any service which is the basis for that portion of the award. An award is not subject to execution, attachment, garnishment, or other process. However, an award for compensation toward a related expense is not exempt from a claim by a creditor to the extent that the creditor provided products, services, or accommodations, the costs of which are recognized and included in the award.
Source: SL 1991, ch 201, § 24.
23A-28B-25. Circumstances not permitting award of compensation.
No claim for compensation may be awarded:
(1) Unless an application for compensation is filed with the department within one year after the date of the personal injury or death and the personal injury or death was the result of a crime which had been reported to a law enforcement officer or agency within five days of its occurrence or, if the crime could not reasonably have been reported within that period, within five days of the date when a report could reasonably have been made. The department may waive the one year application requirement for good cause shown;
(2) If the victim:
(a) Engaged in conduct which substantially contributed to the infliction of the victim's injury or death or engaged in conduct which the victim should reasonably have foreseen could lead to the injury or death. However, this subsection does not apply to any victim defined in subsections 23A-28B-1(12)(b) and (c) or to any victim of: a sex offense under chapter 22-22; human trafficking under chapter 22-49; domestic abuse under § 25-10-1; child abuse, neglect, or exploitation under § 26-8A-2; or abuse, neglect, or exploitation of an elder or an adult with a disability under chapter 22-46;
(b) Committed or otherwise participated in a crime which caused or contributed to the victim's injury or death;
(c) Fails or refuses to cooperate fully with any appropriate law enforcement officer or agency or with the department in the administration of this chapter. If a claimant other than a victim fails or refuses to cooperate pursuant to this subsection, no compensation may be awarded to that claimant; or
(3) To any claimant, if the award would unjustly benefit an offender or an accomplice.
Source: SL 1991, ch 201, § 25; SL 2018, ch 145, §§ 2, 8.
23A-28B-26. Relative or household member of offender eligible for compensation.
No victim or dependent may be denied compensation solely because he is a relative of the offender or was living with the offender as a family or household member at the time of the personal injury or death.
Source: SL 1991, ch 201, § 26.
23A-28B-27. Emergency award of compensation--Amount--Excess amount repaid.
If the department concludes that an award of compensation is likely and that undue hardship will result to a claimant if an immediate award is not made, the department may grant an emergency award of compensation. The amount of such emergency award shall be based upon the claimant's immediate and verifiable needs as a result of loss of income or support, upon emergency medical treatment expenses or upon funeral and burial expenses. The amount of an emergency award may not exceed one thousand dollars. Any emergency award granted pursuant to this section shall be deducted from any final compensation award made to the claimant. Any excess of the amount of any emergency award over the amount of the final award, or the full amount of any emergency award if no final award is made, shall be repaid by the claimant to the department for reimbursement to the fund.
Source: SL 1991, ch 201, § 27.
23A-28B-28. Department recommendation or order upon review and investigation of application--Notice.
The department shall receive, review, and investigate, any application for victims' compensation which has been properly filed. Following such review and investigation the department shall issue an order pursuant to § 23A-28B-31. The department shall file any such order with the commission and shall serve notice of such by mailing a copy to the claimant.
Source: SL 1991, ch 201, § 28; SL 1998, ch 150, § 2.
23A-28B-30. Fees and mileage allowance for witness in compensation hearing.
Fees and mileage for attendance as a witness in a compensation hearing before the commission shall be identical to those allowed in circuit court.
Source: SL 1991, ch 201, § 30.
23A-28B-31. Order entered on all claims submitted under chapter--Content.
For all claims submitted under the provisions of this chapter, the department shall enter an order which shall include:
(1) Findings of fact;
(2) The amount of compensation, if any, payable under the provisions of this chapter;
(3) The name of any person to whom such compensation is payable;
(4) A notice that the claimant may request commission review of the order in accordance with § 23A-28B-32; and
(5) Any other information which the department deems necessary.
Source: SL 1991, ch 201, § 31; SL 1998, ch 150, § 4; SL 2004, ch 167, § 3.
23A-28B-32. Request for review of department order--Hearing.
If a claimant disagrees with an order entered by the department, the claimant, within fifteen days from the date of service of the order, may request a review of the claim by the commission. A request for review shall be in writing in a form prescribed by the commission. Upon receipt of a request for review, the commission shall treat the department order as a recommendation by the department and shall hold a hearing to decide the claim. The hearing shall be held upon at least thirty days notice to the claimant and any other interested persons. The commission shall consider the order of the department and any objections to the order by the claimant. In addition, the commission may subpoena persons or documents, administer oaths or affirmations, and receive any additional relevant evidence which the commission deems necessary to decide the compensability of the claim. Based upon evidence presented at the hearing, the commission may adopt, modify, or reject the order of the department. A record of all proceedings at the hearing shall be kept. Any hearing held pursuant to this section may not be deemed a contested case hearing and the provisions of §§ 1-26-16 to 1-26-37, inclusive, governing contested cases and appeals therefrom do not apply. However, the commission shall adopt procedural rules pursuant to chapter 1-26 governing hearings held pursuant to this section. If no request for review is received within fifteen days, the department order shall become final with no further action by the commission and compensation shall be paid in accordance therewith.
Source: SL 1991, ch 201, § 32; SL 1998, ch 150, § 5.
23A-28B-32.1. Department permitted to amend commission order.
Upon request of the claimant and subject to the limitations set forth in this chapter, including any rules promulgated pursuant to § 23A-28B-20, the department may amend an order entered by the commission pursuant to § 23A-28B-32. However, such amendments may not exceed five percent of the total amount authorized by the commission. The department may not award compensation for the claim if the commission denied compensation.
Source: SL 1998, ch 150, § 6.
23A-28B-33. Promulgation of rules for administration of chapter.
The department may promulgate rules, pursuant to chapter 1-26, relating to administration of this chapter, which rules may include:
(1) Procedures for investigating a claim to determine whether compensation eligibility requirements have been satisfied;
(2) Procedures for verifying claimed losses or expenses;
(3) Standards for compensation, as provided in § 23A-28B-20;
(4) Standards to insure that payment of an award will not unjustly benefit an offender or an accomplice; and
(5) Procedures to be utilized to decide requests for emergency awards.
Source: SL 1991, ch 201, § 33.
23A-28B-34. Department subrogated to claimant's cause of action--Action against party liable for claimant's injury.
If an award of compensation has been paid pursuant to this chapter, the department is subrogated to the cause of action of a claimant against the person responsible for the injury or death and the department may bring an action against such person in the amount of the damages sustained by the claimant. The department is also subrogated to the cause of action of the claimant against one or more third parties liable for the acts of the person responsible for such injury or death. If the department brings an action pursuant to this section and the judgment is greater than the amount of compensation paid to the claimant plus the costs incurred by the department in pursuing such action, the balance of the judgment shall be paid to the claimant.
In addition to the authority of the department to bring an action under this section, the claimant may bring an action to recover damages. In any such action, the department holds subrogation rights and the claimant shall join the department as a party to such action.
If any judgment or verdict pursuant to an action under this section indicates separate awards for economic loss and noneconomic loss, payments on such judgment or verdict shall be allocated between the losses in proportion to the amounts indicated. In any such action, the judge, upon timely motion, shall direct the jury to return a special verdict, which verdict shall indicate separately the awards for noneconomic loss, punitive damages, and economic loss.
Source: SL 1991, ch 201, § 34.
23A-28B-35. Fraudulent claim prohibited--Violation as misdemeanor or felony.
No person may submit a fraudulent application or claim for a victims' compensation award, may intentionally make or cause to be made any false statement or representation of a material fact in a claim, or may intentionally conceal or fail to disclose information affecting the amount of or the initial or continued right to any such claim or award when reasonably requested to provide such information by the department or the commission.
Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor if the application or claim is in an amount of one thousand dollars or less. Any person who violates the provisions of this section is guilty of a Class 4 felony if the application or claim is in an amount exceeding one thousand dollars.
Any person who violates the provisions of this section forfeits any benefit received under this chapter and shall reimburse the state for any such payments received or paid to or on behalf of that person.
The state has a civil cause of action for relief against any person who violates this section in the amount of damages which the state has sustained as a result of such violation and, in addition, for punitive damages in an amount not more than double the amount of damages which the state has sustained, together with interest, plus the cost of such suit.
Source: SL 1991, ch 201, § 35; SL 2006, ch 130, § 6.
23A-28B-36. Confidentiality of records and reports.
Any record or report obtained by the department or commission, the confidentiality of which is protected by any law or administrative rule, shall remain confidential.
Source: SL 1991, ch 201, § 36.
23A-28B-37. Application hearing open to public--Exceptions.
Any hearing held on an application is open to the public. The record of such hearing is a public record, unless the commission determines that a closed hearing is necessary because:
(1) The alleged offender has not been brought to trial and a public hearing would adversely affect the alleged offender's apprehension or trial;
(2) The victim or alleged offender is a minor;
(3) A public hearing would cause trauma for the victim; or
(4) A public hearing would frustrate rather than further the interests of justice.
Source: SL 1991, ch 201, § 37; SL 2004, ch 167, § 4.
23A-28B-38. Privileged communications.
No privilege exists, except that privilege arising from the attorney-client relationship, with regard to communications or records relevant to an issue regarding the physical, mental, or emotional condition of a claimant or victim in a proceeding under this chapter if such condition is an element.
Source: SL 1991, ch 201, § 38.
23A-28B-39. Assistant attorney general to advise department and commission--Litigation assistance.
The attorney general shall appoint an assistant attorney general to act as legal advisor to the department and to the commission toward administration of this chapter. Upon request by the department or commission, such assistant attorney general shall represent the department or commission in litigation in which the department or commission is a party or has an interest.
Source: SL 1991, ch 201, § 39.
23A-28B-40. Crime victims' compensation fund--Establishment--Purposes.
There is established within the state treasury the crime victims' compensation fund, into which shall be deposited surcharges collected pursuant to § 23A-28B-42, deductions from prison industries revenues or inmate wages pursuant to subdivision 24-7-3(1), contributions, grants, payments ordered by the court, interest received on moneys in the fund, and all other fees and moneys collected for the purposes of this chapter. This fund shall be used for the purposes of paying compensation awards and administering the crime victims' compensation program as provided for in this chapter. The fund may also be used as provided in § 23A-28B-40.1.
Source: SL 1991, ch 201, § 40; SL 1993, ch 183, § 1; SL 2020, ch 99, § 1.
23A-28B-40.1 . Emergency expenses--Requests for reimbursement.
The department may use the crime victims' compensation fund to reimburse a law enforcement agency or law enforcement officer for any actual expenses incurred for the payment of emergency expenses, including food and shelter, for any person if:
(1) A law enforcement officer reasonably believes the person was the victim of a crime; and
(2) No other services were reasonably available for the victim at the time.
Any law enforcement agency or law enforcement officer seeking reimbursement under this section shall submit to the department a request and the receipts for the expenses incurred for any victim as provided in this section.
Source: SL 2020, ch 99, § 2.
23A-28B-41. Payments from fund--Warrants--Vouchers.
Expenditures authorized by this chapter from the crime victims' compensation fund shall be paid on warrants drawn by the state auditor on vouchers approved by the secretary of the department.
Source: SL 1991, ch 201, § 41.
23A-28B-42. Compensation surcharge for certain crimes--Waiver.
In any criminal action for a violation of state law or county or municipal ordinance, in addition to any other liquidated cost, penalty, assessment, surcharge, or fine provided by law, there shall be levied a crime victims' compensation surcharge on each Class 2 misdemeanor, Class 1 misdemeanor, or felony conviction of five dollars.
However, the surcharge imposed by this section does not apply to violations relating to parking of vehicles. In a case of clear financial hardship when a fine is suspended in whole or in part, the surcharge provided for in this section may be waived.
Source: SL 1991, ch 201, § 42; SL 2018, ch 145, § 6.
23A-28B-43. Collection of compensation surcharge--Disbursement.
The clerk of courts of each county shall collect any surcharge levied under § 23A-28B-42 and shall transmit the collected surcharges within thirty days to the state treasurer who shall place the money received in the crime victims' compensation fund. For administration of surcharge collection, the Unified Judicial System shall receive one and one half percent of the surcharge funds collected, to be deposited in the court automation fund. The department shall receive thirteen and one half percent of surcharge funds collected for costs associated with administering claims and for providing administrative services to the commission. Any expenditures authorized from the fund shall be paid on warrants drawn by the state auditor on vouchers approved by the secretary of the department.
Source: SL 1991, ch 201, § 43; SL 2018, ch 145, § 7.
23A-28B-44. No awards before July 1, 1992.
No award of compensation may be made for a crime that occurs before July 1, 1992.
Source: SL 1991, ch 201, § 44; SL 2018, ch 145, § 5.
CHAPTER 23A-28C
CRIME VICTIMS' ACT
23A-28C-1 Rights of crime victim.
23A-28C-1.1 Notice defined.
23A-28C-1.2 Electronic notification and SAVIN system defined.
23A-28C-2 Notice of rights--Victim registration with SAVIN system--Confidentiality.
23A-28C-3 Enforcement of constitutional or statutory rights.
23A-28C-4 Victim defined.
23A-28C-5 Notice of incarcerated offender's change of status.
23A-28C-6 Notice to be provided by Department of Corrections or state's attorney.
23A-28C-7 Victim or witness assistant--Appointment and compensation.
23A-28C-8 Victim or witness assistant--Duties.
23A-28C-9 Notice to immediate family.
23A-28C-10 Statewide automated victim information and notification system.
23A-28C-11 Notice of clemency hearing--Contents.
23A-28C-12 Notice of discretionary parole hearing--Contents.
23A-28C-13 Victim request for notification.
23A-28C-14 Request for notification by parent or guardian.
23A-28C-15 Sharing of information by interagency multidisciplinary teams.
23A-28C-16 Office of Liaison for Missing and Murdered Indigenous Persons established--Duties--Budget.
23A-28C-1. Rights of crime victim.
Consistent with § 23A-28C-4, victims of the crime, including victims of driving under the influence vehicle accidents and victims of any vehicle accident resulting in death, have the following rights:
(1) To be notified of scheduled bail hearings and release from custody, to be notified by the prosecutor's office when the case is received and to whom the case is assigned, and to be notified in advance of the date of preliminary hearing and trial;
(2) To be informed of what the charges mean and the elements necessary for conviction;
(3) To testify at scheduled bail or bond hearings regarding any evidence indicating whether the offender represents a danger to the victim or the community if released;
(4) To be protected from intimidation by the defendant, including enforcement of orders of protection;
(5) To offer written input into whether plea bargaining or sentencing bargaining agreements should be entered into;
(6) To be present during all scheduled phases of the trial or hearings, except where otherwise ordered by the judge hearing the case or by contrary policy of the presiding circuit judge;
(7) To be prepared as a witness, including information about basic rules of evidence, cross-examination, objections, and hearsay;
(8) To provide to the court a written or oral victim impact statement prior to sentencing regarding the financial and emotional impact of the crime on the victim and his or her family as well as recommendations for restitution and sentencing and § 23A-28-8 notwithstanding, the right to appear at any hearing during which a change in the plan of restitution is to be considered;
(9) To receive restitution, whether the convicted criminal is probated or incarcerated, unless the court or parole board provides to the victim on the record specific reasons for choosing not to require it;
(10) To provide written input at parole and clemency hearings or with respect to clemency by the Governor, should those options be considered;
(11) In a case in which the death penalty may be authorized, to provide to the court or to the jury, as appropriate, testimony about the victim and the impact of the crime on the victim's family;
(12) To be notified of the defendant's release from custody, which notice includes:
(a) Notice of the defendant's escape from custody and return to custody following escape;
(b) Notice of any other release from custody, including placement in an intensive supervision program or other alternative disposition, and any associated conditions of release;
(c) Notice of parole; and
(d) Notice of pending release of an inmate due to expiration of sentence;
(13) To be notified of the victim's right to request testing for infection by blood-borne pathogens pursuant to § 23A-35B-2;
(14) To be provided a copy of any report of law enforcement that is related to the crime, at the discretion of the state's attorney, or upon motion and order of the court. However, no victim may be given the criminal history of any defendant or any witness; and
(15) To be notified of a petition by the sex offender for removal from the sex offender registry and to provide written input with respect to the removal request.
Source: SL 1991, ch 202, § 1; SL 1992, ch 173, § 1; SL 1995, ch 137, § 1; SL 1996, ch 156; SL 1997, ch 143, § 4; SL 2003, ch 136, § 1; SL 2005, ch 120, § 426; SL 2012, ch 138, § 2; SL 2020, ch 100, § 1.
23A-28C-1.1. Notice defined.
For the purposes of this chapter, the term, notice, means either written notification or electronic notification.
Source: SL 2014, ch 116, § 1.
23A-28C-1.2. Electronic notification and SAVIN system defined.
For the purposes of this chapter, the term, electronic notification, means any telephonic, electronic mail, text messaging, and facsimile transmittal notification or any notification as produced by the statewide automated victim information notification system as established pursuant to § 23A-28C-10. For purposes of this chapter, the term, SAVIN system, means the statewide automated victim information and notification system.
Source: SL 2014, ch 116, § 2; SL 2017, ch 107, § 1.
23A-28C-2. Notice of rights--Victim registration with SAVIN system--Confidentiality.
At the commencement of a criminal proceeding subject to the terms of this chapter, the prosecutor, by first class mail or electronic mail notification, shall advise the victim of the rights set forth in this chapter. In order to take advantage of the rights, the victim shall advise the prosecutor of a desire to participate. A victim may choose to participate only in certain enumerated phases of the proceedings. A victim wishing to participate shall register with the SAVIN system, as defined by this chapter, where notifications, including electronic notification, required under this chapter are to be made, and of any changes in the place of notification. A prosecutor receiving notification of a victim's wish to participate shall approve the victim's status and shall keep record of that notification through the time of the defendant's final discharge from the criminal justice system in the SAVIN system. If the defendant is sentenced to the state prison system, the Department of Corrections shall keep a record of the request for notification in the SAVIN system until the defendant's final discharge from prison and parole. A victim's request for notification and the place of notification is confidential and may not be disclosed to the defendant.
Source: SL 1991, ch 202, § 2; SL 1995, ch 137, § 2; SL 1999, ch 126, § 4; SL 2014, ch 116, § 7; SL 2017, ch 107, § 2.
23A-28C-3. Enforcement of constitutional or statutory rights.
A victim may seek a cause of action for injunctive relief to enforce the victim's rights under S.D. Const., Art. VI, § 29 or this chapter. No other cause of action exists against any person for a failure to comply with the terms of this chapter. If a victim asserts in writing to the court with jurisdiction over the case that a violation of this chapter has occurred, the court shall act promptly to ensure the victim's rights and interests are protected in a manner no less vigorous than the protections afforded to the defendant. The court, in its discretion, may determine if additional hearings or orders are necessary to ensure compliance with the chapter. The court shall clearly enter on the record the reasons for any decision regarding the disposition of a victim's rights. A violation of any right set forth in § 23A-28C-1 does not constitute grounds for an appeal from conviction by a defendant or for any other relief from such conviction.
Source: SL 1991, ch 202, § 3; SL 2018, ch 146, § 2.
23A-28C-4. Victim defined.
For the purposes of this chapter, the term, victim, means any person being the direct subject of an alleged act that would constitute a crime of violence as defined by subdivision 22-1-2(9), burglary in the second degree, simple assault as defined in §§ 22-18-1 and 22-18-1.5, interference with emergency communication as defined in § 49-31-29.2, violation of a protection order or no contact order as defined in § 25-10-13, disorderly conduct between persons in a relationship described in § 25-10-3.1, stalking as defined in chapter 22-19A, a violation of chapter 22-22, a violation of chapter 22-49, or a driving or boating under the influence vehicle accident, under the laws of South Dakota or the laws of the United States. If the victim does not survive, is a minor, or is unable to comment, the term, victim, means the members of the immediate family of the primary victim. The victim may also designate a representative to act on the victim's behalf.
Source: SL 1991, ch 202, § 4; SL 1994, ch 181; SL 1999, ch 127, § 1; SL 2014, ch 125, § 10; SL 2018, ch 146, § 1.
23A-28C-5. Notice of incarcerated offender's change of status.
Any institution under the control of the Department of Corrections or the Department of Human Services or the Department of Social Services, or any jail or other facility where a person is incarcerated due to the commission of a crime, shall provide notice, as soon as possible, if any of the following occur:
(1) Upon the person's escape from custody and return to custody following escape;
(2) Of any release from custody, including placement in an intensive supervision program or other alternative disposition, such notice to include associated conditions of release;
(3) Upon the granting of parole or revocation of parole;
(4) Prior to the defendant's release from custody due to expiration of sentence;
(5) Of any removal from an intensive supervision program or other alternative disposition;
(6) Of any furlough; and
(7) Of the offender's death.
Source: SL 1995, ch 137, § 3; SL 1999, ch 126, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 134, eff. Apr. 12, 2011; SL 2014, ch 116, § 8.
23A-28C-6. Notice to be provided by Department of Corrections or state's attorney.
Notice as required in § 23A-28C-5 shall be provided directly to the victim by the Department of Corrections through the SAVIN system if the defendant is incarcerated in an institution under the control of the Department of Corrections. If the defendant is incarcerated in an institution under the control of the Department of Social Services, or in any jail or in other facility due to the commission of a crime, notice as required in § 23A-28C-5 shall be provided to the victim by the state's attorney in the county where the person was convicted of that crime.
Source: SL 1999, ch 126, § 6; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011; SL 2017, ch 107, § 3.
23A-28C-7. Victim or witness assistant--Appointment and compensation.
The board of county commissioners may appoint, with the concurrence of the state's attorney or county sheriff, a victim or witness assistant to assist victims of crime if authorized by the board of county commissioners by resolution entered upon its minutes. The board of county commissioners shall set the compensation for the victim or witness assistant.
Source: SL 1986, ch 192, § 1; SDCL § 22-1-10; SL 2005, ch 120, § 366.
23A-28C-8. Victim or witness assistant--Duties.
The victim or witness assistant shall:
(1) Advise the victim about the legal proceedings in which the victim will be involved;
(2) Advise the victim concerning any required appearance at any proceeding and if the proceeding is continued or postponed;
(3) Assist the state's attorney, court services officer, and the victim to determine the amount of monetary damages suffered by the victim and advise the victim about restitution;
(4) Advise, if the requirements of § 23A-12-9 are met, the victim and one of the victim's immediate family that the preliminary hearing or deposition testimony of the victim may be video recorded; and
(5) Advise the victim or one of the victim's immediate family if the defendant is released from custody and the defendant's bail conditions.
The victim or witness assistant may accompany the victim in any criminal proceeding.
Source: SL 1986, ch 192, § 3; SDCL § 22-1-11; SL 2005, ch 120, §§ 364, 366; SL 2022, ch 72, § 3.
23A-28C-9. Notice to immediate family.
No person, other than in the performance of official duties, may disclose the identity and biographical information concerning a victim of a crime of violence or of a violation of § 22-22-7 until reasonable efforts have been made to provide notice to one of the immediate family.
Source: SL 1986, ch 178; SDCL § 22-1-12; SL 2005, ch 120, §§ 365, 366; SL 2014, ch 116, § 9.
23A-28C-10. Statewide automated victim information and notification system.
The Office of the Attorney General shall oversee the establishment of a statewide automated victim information and notification (SAVIN) system within the criminal justice system and shall serve as the coordinating agency for the development, implementation and maintenance of any such system. All agencies within the state shall cooperate with the Office of the Attorney General in order to establish the SAVIN system, undergo any required training, and report into the system as required. The Office of the Attorney General shall establish guidelines by rules promulgated pursuant to chapter 1-26 and in accordance with the provisions of § 23A-28C-2, to ensure any victim is properly notified of the SAVIN system and advised as to how the victim may gain access.
Source: SL 2013, ch 101, § 76, eff. July 1, 2014.
23A-28C-11. Notice of clemency hearing--Contents.
Upon the scheduling of a clemency hearing pursuant to chapter 24-14, the Department of Corrections shall provide notice to the victim. Notice of a clemency hearing shall be made at least two weeks prior to the hearing. The notice shall provide the offender's clemency hearing date, time, and location and shall advise the victim that the victim may be present at the hearing and may state an opinion regarding clemency. The victim shall be notified if clemency is recommended.
Source: SL 2014, ch 116, § 3.
23A-28C-12. Notice of discretionary parole hearing--Contents.
The Department of Corrections, through the SAVIN system, shall provide notice to the victim before the date of a discretionary parole hearing. The notice shall provide the inmate's parole eligibility date and the parole hearing date. The notice shall advise the victim that the victim may be present at the hearing and may state an opinion regarding the possible parole of the inmate.
Source: SL 2014, ch 116, § 4; SL 2017, ch 107, § 4.
23A-28C-13. Victim request for notification.
The victim may request to be notified by the Department of Corrections through the SAVIN system if:
(1) The offender is considered for early final discharge or partial early final discharge from parole;
(2) The offender is placed on or removed from work release, a global positioning system, or a community transition program; or
(3) The offender on parole absconds supervision.
Source: SL 2014, ch 116, § 5; SL 2017, ch 107, § 5.
23A-28C-14. Request for notification by parent or guardian.
If the victim is a minor, the victim's parent or guardian may request notification pursuant to this chapter.
Source: SL 2014, ch 116, § 6.
23A-28C-15. Sharing of information by interagency multidisciplinary teams.
Nothing in §§ 23A-28C-3 and 23A-28C-4 may prevent interagency multidisciplinary teams from sharing information for the purposes of investigating a crime or providing services to victims, as defined in § 23A-28C-4, in the course of the team member's speciality or occupation. Any information regarding a victim that a team member shares with other team members shall remain confidential, pursuant to this title and if the victim is a child, pursuant to § 26-8A-13. A team shall consist of law enforcement personnel, a representative of the prosecuting attorney's office, licensed or certified medical professionals, and any victim advocate. Any interagency multidisciplinary team formed to investigate crimes involving child victims shall also include child advocacy center staff where such staff is available in the region, Department of Social Services child protection staff, and licensed or certified mental health professionals. The team may include additional members at the discretion of the team if the additional member would benefit the victim. Each multidisciplinary team shall have written procedures and guidelines. Multidisciplinary team members shall annually sign a memorandum of understanding acknowledging the procedure and guidelines. The memorandum of understanding shall also include an information sharing and confidentiality agreement, approved by the attorney general, assuring compliance with title 23A. The multidisciplinary team shall file a list of team members and the memorandums of understanding with the Office of the Attorney General and the Department of Social Services as required by § 26-8A-17.
Source: SL 2018, ch 146, § 3.
23A-28C-16. Office of Liaison for Missing and Murdered Indigenous Persons established--Duties--Budget.
The Office of the Attorney General shall establish the Office of Liaison for Missing and Murdered Indigenous Persons (MMIP) to assist with and provide training for locating missing or murdered indigenous persons. The Office of the Attorney General shall staff the MMIP with a full-time missing person specialist, pursue federal funding for the MMIP, provide guidance to the MMIP, and coordinate the functions of the MMIP with the United States Attorney's Office, the United States Department of Justice, state law enforcement agencies, and tribal law enforcement agencies. All agencies within the state shall cooperate with the Office of the Attorney General in order to establish the MMIP, undergo any required training, and report to the MMIP as required. This office shall be budgeted through the normal budget process.
Source: SL 2021, ch 110, § 1.
23A-29-1
Time for motion for new trial--Rulings thereon--Extension of time.
23A-29-2
Effect of grant of new trial--Evidence received.
23A-29-1. Time for motion for new trial--Rulings thereon--Extension of time.
A motion for new trial may be made under the same conditions specified and in the same manner as provided by § 15-6-59(b), except that said motion shall be served and filed not later than ten days after filing of the judgment.
Source: SDC 1939 & Supp 1960, §§ 34.4003, 34.4004; SDCL, §§ 23-50-3, 23-50-4; SL 1978, ch 178, § 377; SL 1987, ch 411 (Supreme Court Rule 86-37); SL 1988, ch 433 (Supreme Court Rule 87-14).
23A-29-2. Effect of grant of new trial--Evidence received.
The granting of a new trial places the parties in the same position as if no trial had been had. All evidence must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument.
Source: SDC 1939 & Supp 1960, § 34.4001; SDCL, § 23-50-12; SL 1978, ch 178, § 380.
23A-30-1
(Rule 34) Grounds for arrest of judgment--Time for motion.
23A-30-2
Effect of arrest of judgment.
23A-30-3
Recommitment or admission to bail after arrest of judgment--Discharge if evidence
insufficient.
23A-30-1. (Rule 34) Grounds for arrest of judgment--Time for motion.
A court shall arrest judgment if an indictment or information does not charge an offense or if the court does not have jurisdiction of the offense charged. Any party may move to arrest judgment, but such motion must be made within ten days after the verdict or finding of guilty or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the ten-day period.
Source: Supreme Court Rule 409, 1939; SDC 1939 & Supp 1960, § 34.3677; SDCL, § 23-47-1; SL 1978, ch 178, § 381.
23A-30-2. Effect of arrest of judgment.
The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the indictment or information was filed.
Source: Supreme Court Rule 409, 1939; SDC 1939 & Supp 1960, § 34.3677; SDCL, § 23-47-2; SL 1978, ch 178, § 382.
23A-30-3. Recommitment or admission to bail after arrest of judgment--Discharge if evidence insufficient.
If from the evidence introduced at a trial there is probable cause to believe a defendant is guilty, and a new indictment or information can be framed upon which he may be convicted, a court may order him to be recommitted to the officer of the proper county or admitted to bail anew to answer the new indictment or information. If there is probable cause to believe him guilty of another offense, he must be committed or held thereon. If no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged or, if admitted to bail, have his bail exonerated.
Source: SDC 1939 & Supp 1960, § 34.3678; SDCL, § 23-47-4; SL 1978, ch 178, § 383.
23A-31-1
(Rule 35) Correction or reduction of sentence--Time permitted--Post-conviction
remedies unimpaired.
23A-31-2
(Rule 36) Correction of clerical mistakes.
23A-31-3
Reduction of sentence for substantial assistance in investigating or prosecuting
another.
23A-31-1. (Rule 35) Correction or reduction of sentence--Time permitted--Post-conviction remedies unimpaired.
A court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence. A court may reduce a sentence:
(1) Within two years after the sentence is imposed;
(2) Within one hundred twenty days after receipt by the court of a remittitur issued upon affirmance of the judgment or dismissal of the appeal; or
(3) Within one hundred twenty days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction;
whichever is later. A court may also reduce a sentence upon revocation of probation or suspension of sentence as provided by law. The remedies provided by this section are not a substitute for nor do they affect any remedies incident to post-conviction proceedings.
Source: SL 1978, ch 178, § 384; SL 2005, ch 127, § 2.
23A-31-2. (Rule 36) Correction of clerical mistakes.
Clerical mistakes in judgments, orders, or other parts of a record and errors in a record arising from oversight or omission may be corrected by a court at any time and after such notice, if any, as the court orders.
Source: SL 1978, ch 178, § 385.
23A-31-3. Reduction of sentence for substantial assistance in investigating or prosecuting another.
Upon the motion of the prosecuting attorney, the court may reduce a sentence if the defendant has provided substantial assistance in investigating or prosecuting another person.
Whenever granting a sentence reduction pursuant to this section, the court is not prohibited from reducing the sentence to a level below the minimum sentence provided in statute.
Source: SL 2009, ch 125, § 1.
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.
23A-33-1
Stay of execution by trial court on notice of intent to appeal.
23A-33-2
(Rule 38(a)(2)) Stay of imprisonment on appeal--Transfer of prisoner to
facilitate preparation of appeal.
23A-33-3
Stay of further proceedings on appeal from order before judgment.
23A-33-4
(Rule 38(a)(3)) Stay of fine pending appeal--Security required of defendant.
23A-33-5
(Rule 38(a)(4)) Stay of order for probation.
23A-33-6
Bail pending appeal.
23A-33-7 to 23A-33-9.
(Rules 38(b), 38(c), 39)) Reserved.
23A-33-1. Stay of execution by trial court on notice of intent to appeal.
After a judgment of conviction has been rendered but before execution of the sentence thereon, a trial court may in its discretion, if the defendant states that he desires to appeal, stay execution of the sentence for a period not to exceed thirty days.
Source: SL 1907, ch 120, § 3; SL 1915, ch 146, § 3; SL 1917, ch 200, § 1; RC 1919, § 5036; SDC 1939 & Supp 1960, § 34.4106; SDCL, § 23-51-11; SL 1978, ch 178, § 406.
23A-33-2. (Rule 38(a)(2)) Stay of imprisonment on appeal--Transfer of prisoner to facilitate preparation of appeal.
A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is admitted to bail. If the defendant is not admitted to bail, the trial court upon request of the defendant, may order that the defendant be retained at, or transferred to, a place of confinement near the place of trial or some other convenient place, for a period reasonably necessary to permit the defendant to assist in the preparation of his appeal to the Supreme Court.
Source: SL 1978, ch 178, § 407.
23A-33-3. Stay of further proceedings on appeal from order before judgment.
An appeal from an order made before final judgment shall stay further proceedings only by order of the trial court or by order of the Supreme Court. A trial court, however, shall have no power to stay further proceedings on an appeal provided for by § 23A-32-5 or 23A-32-12.
Source: SDC 1939 & Supp 1960, § 34.4106; SDCL, § 23-51-12; SL 1978, ch 178, § 408.
23A-33-4. (Rule 38(a)(3)) Stay of fine pending appeal--Security required of defendant.
A sentence to pay a fine or a fine and costs, if an appeal is taken, may be stayed by a trial court or by the Supreme Court upon such terms as the court deems proper. A court may require a defendant pending appeal to deposit the whole or any part of his fine and costs with the clerk of the trial court, to give bond for the payment thereof, or to submit to an examination of assets, and it may make any appropriate order to restrain the defendant from dissipating his assets.
Source: SL 1978, ch 178, § 409.
23A-33-5. (Rule 38(a)(4)) Stay of order for probation.
An order placing a defendant on probation may be stayed if an appeal is taken. If not stayed, the court shall specify when the term of probation shall commence. If an order is stayed the court shall fix the terms of the stay.
Source: SL 1978, ch 178, § 410.
23A-33-6. Bail pending appeal.
Admission to bail shall be as provided in chapter 23A-43.
Source: SL 1978, ch 178, § 411.
CHAPTER 23A-35
(RULE 41) SEARCH AND SEIZURE
23A-35-1 Definition of search warrant.
23A-35-2 (Rule 41(a)) Magistrate issuing warrant--Officer requesting.
23A-35-3 (Rule 41(b)) Property for which warrant may be issued.
23A-35-4 (Rule 41(c)(1)) Affidavits furnishing probable cause for warrant--Examination of witnesses by magistrate--Record of proceedings--Contents of warrant.
23A-35-4.1 Filing of affidavit--Sealing of affidavit.
23A-35-4.2 Electronic transmission of affidavit in support of search warrant--Issue of search warrant--Proof of magistrate's signature.
23A-35-4.3 Search warrant for installation, use, and maintenance of tracking device.
23A-35-5 (Rule 41(c)(2)) Oral testimony as basis for warrant--Transcription, certification and filing with court.
23A-35-6 (Rule 41(c)(2)(A)) Grounds for warrant on oral testimony--Verbatim contents of warrant--Signature of duplicate by requesting officer--Preparation of original by magistrate.
23A-35-7 (Rule 41(c)(2)(B)) Return of warrant issued on oral testimony--Signature by person establishing grounds for issuance.
23A-35-8 Breaking in to execute warrant after refusal of admittance--Liberation of person executing warrant.
23A-35-9 Grounds for no-knock warrant--Powers of officer executing.
23A-35-10 (Rule 41(d)) Receipt and copy of warrant given to person from whom property taken--Inventory filed with return of warrant--Copies of inventory.
23A-35-11 (Rule 41(e)) Motion in circuit court for return of property illegally seized--Restoration of property--Treatment as motion to suppress evidence.
23A-35-12 (Rule 41(f)) Motion to suppress evidence in trial court.
23A-35-13 (Rule 41(g)) Papers filed with clerk of court by magistrate to whom warrant returned.
23A-35-14 (Rule 41(h)) Special provisions for search unimpaired--Property defined.
23A-35-1. Definition of search warrant.
A search warrant is a written order, issued in the name of the state, signed by a committing magistrate, directed to a law enforcement officer, commanding him to search for designated personal property and to bring it to the magistrate.
Source: SDC 1939 & Supp 1960, § 34.1101; SDCL, § 23-15-1; SL 1978, ch 178, § 438.
23A-35-2. (Rule 41(a)) Magistrate issuing warrant--Officer requesting.
A search warrant authorized by this chapter may be issued by a committing magistrate in the county where the property sought is located, on the request of a law enforcement officer or prosecuting attorney.
Source: SL 1978, ch 178, § 439.
23A-35-3. (Rule 41(b)) Property for which warrant may be issued.
A warrant may be issued under this chapter to search for and seize any:
(1) Property that constitutes evidence of the commission of a criminal offense;
(2) Contraband, the fruits of crime, or things otherwise criminally possessed; or
(3) Property designed or intended for use in, or which is or has been used as the means of, committing a criminal offense.
Source: SDC 1939 & Supp 1960, § 34.1103 (1) to (3); SDCL, §§ 23-15-3 to 23-15-5; SL 1978, ch 178, § 440.
23A-35-4. (Rule 41(c)(1)) Affidavits furnishing probable cause for warrant--Examination of witnesses by magistrate--Record of proceedings--Contents of warrant.
A warrant shall be issued only on evidence set forth in an affidavit or affidavits presented to a committing magistrate, which establishes the grounds for issuing the warrant. If the committing magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the committing magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce. Such proceeding shall be taken down by a court reporter, stenographer, or recording equipment and made part of the affidavit. The warrant shall be directed to a law enforcement officer. It shall command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the committing magistrate, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at night. It shall designate a committing magistrate to whom it shall be returned.
Source: SDC 1939 & Supp 1960, §§ 34.1102, 34.1105, 34.1106, 34.1108; SDCL, §§ 23-15-2, 23-15-9, 23-15-12, 23-15-16; SL 1970, ch 229, § 11 (c) (1); SDCL Supp, § 39-17-124; SL 1972, ch 146, § 1; SDCL, § 34-20B-65; SL 1978, ch 178, § 441.
23A-35-4.1. Filing of affidavit--Sealing of affidavit.
If not filed earlier, any affidavit in support of a search warrant shall be filed with the court when the warrant and inventory are returned. Upon filing the warrant and supporting documents, the law enforcement officer may apply by separate affidavit to the court to seal the supporting affidavit from public inspection or disclosure. The court, for reasonable cause shown, may order the contents of the affidavit sealed from public inspection or disclosure but may not prohibit disclosure that a supporting affidavit was filed, the contents of the warrant, the return of the warrant, nor the inventory. The court may order that the supporting affidavit be sealed until the investigation is terminated or an indictment or information is filed. In cases of alleged rape, incest, or sexual contact, if the victim is a minor, the court may limit access to an affidavit pursuant to § 23A-6-22.1. However, a court order sealing a supporting affidavit may not affect the right of any defendant to discover the contents of the affidavit under chapter 23A-13.
Source: SL 1987, ch 180; SL 2011, ch 124, § 2.
23A-35-4.2. Electronic transmission of affidavit in support of search warrant--Issue of search warrant--Proof of magistrate's signature.
A committing magistrate may, by means of electronic transmission, receive an affidavit in support of the issuance of a search warrant and may issue a search warrant by the same method. All applicable procedural and statutory requirements for the issuance of a warrant shall be met. For all procedural and statutory purposes, the electronic document shall have the same force and effect as the original. Any electronic document transmitted pursuant to this section shall be filed with the court within five business days.
The officer executing the warrant shall receive proof that the committing magistrate has signed the warrant before the warrant is executed. Proof that the committing magistrate has signed the warrant may consist of receipt of the electronic copy of the warrant.
Source: SL 1991, ch 452 (Supreme Court Rule 91-18); SL 2014, ch 259 (Supreme Court Rule 13-17), eff. Nov. 8, 2013.
23A-35-4.3. Search warrant for installation, use, and maintenance of tracking device.
As used in this section, the term, tracking device, means an electronic or mechanical device that permits the tracking of the movement of a person or object, including GPS, cellular device, electronic video surveillance, or any other covert tracking or surveillance device.
A search warrant for a tracking device may be issued by any magistrate authorized in § 23A-35-2, for the installation, use, and maintenance of a tracking device. There must be probable cause to search and seize property as set forth in this chapter and that such installation and use of this device will lead to the discovery of evidence under § 23A-35-3. The tracking-device warrant must identify the person or property to be tracked, designate the magistrate to whom it must be returned, and specify a reasonable length of time that the device may be used. The time may not exceed sixty days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed sixty days each. The warrant must command the officer to complete any installation authorized by the warrant within a specified time no longer than ten days.
Any tracking-device warrant issued under this section may authorize the use of the tracking device within the jurisdiction of the magistrate, and outside that jurisdiction, if the tracking device is installed within the magistrate's jurisdiction. The warrant may be executed in any part of the state where the person or object is found if, after the issuance of a warrant pursuant to this section, the person or object moves or is taken out of the jurisdiction of the magistrate issuing the warrant. The executing officer must perform any installation authorized by the warrant during the daytime, unless the magistrate, for good cause, expressly authorizes installation at another time.
The tracking-device warrant must command the executing officer to return the warrant to the magistrate designated in the warrant. The officer executing a tracking-device warrant must enter on the inventory the approximate time and date the device was installed and the period during which it was used.
Within ten days after the use of the tracking-device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; by leaving a copy at the person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location; or by mailing a copy to the person's last known address. Upon request of the state, the judge may delay notice to prevent the occurrences set forth in subdivisions (1) to (5), inclusive.
With respect to the issuance of any warrant under this section, a judge may, upon a showing of good cause, seal the contents of a warrant and supporting documents until the termination of an investigation, an indictment or information is filed, or as otherwise ordered by the court for purpose of preventing:
(1) Endangerment of life or physical safety of an individual;
(2) Flight from prosecution;
(3) Destruction of or tampering with evidence;
(4) Intimidation of a potential witness; or
(5) If failure to seal would otherwise seriously jeopardize an investigation or unduly delay a trial.
Source: SL 2013, ch 265 (Supreme Court Rule 13-04), eff. Feb. 14, 2013; SL 2018, ch 299 (Supreme Court Rule 18-08), eff. July 1, 2018; SL 2022, ch 75, § 1.
23A-35-5. (Rule 41(c)(2)) Oral testimony as basis for warrant--Transcription, certification and filing with court.
When circumstances make it reasonable to do so in the absence of a written affidavit, a search warrant may be issued upon sworn oral testimony of a person who is not in the physical presence of a committing magistrate if the committing magistrate is satisfied that probable cause exists for the issuance of the warrant. The sworn oral testimony may be communicated to the magistrate by telephone or other appropriate means and shall be recorded and transcribed. After transcription the statement must be certified by the magistrate and filed with the court. This statement shall be deemed to be an affidavit for purposes of § 23A-35-4.
Source: SL 1978, ch 178, § 442.
23A-35-6. (Rule 41(c)(2)(A)) Grounds for warrant on oral testimony--Verbatim contents of warrant--Signature of duplicate by requesting officer--Preparation of original by magistrate.
The grounds for issuance and the contents of a warrant issued pursuant to § 23A-35-5 shall be the same as are required by § 23A-35-4. Prior to approval of a warrant issued pursuant to § 23A-35-5, the committing magistrate shall require the law enforcement officer or the prosecuting attorney who is requesting the warrant to read to him verbatim the contents of the warrant. The magistrate may direct that specific modifications be made in the warrant. Upon approval, the magistrate shall direct the law enforcement officer or the prosecuting attorney who is requesting the warrant to sign the magistrate's name on the warrant. This warrant shall be called a duplicate original warrant and is a warrant for purposes of this chapter. In such cases, the magistrate shall have an original warrant made. The magistrate shall enter the exact time of issuance of the duplicate original warrant on the face of the original warrant.
Source: SL 1978, ch 178, § 443.
23A-35-7. (Rule 41(c)(2)(B)) Return of warrant issued on oral testimony--Signature by person establishing grounds for issuance.
The return of a duplicate original warrant and its original warrant shall be in conformity with §§ 23A-35-8 to 23A-35-10, inclusive. Upon the return, the magistrate shall require the person who gave the sworn oral testimony establishing the grounds for issuance of the warrant, to sign a copy of it.
Source: SL 1978, ch 178, § 444.
23A-35-8. Breaking in to execute warrant after refusal of admittance--Liberation of person executing warrant.
The officer executing a search warrant may break open any building, structure, or container or anything therein to execute the warrant if, after giving notice of his authority and purpose, he is refused admittance. An officer executing a search warrant may break open any building, structure, or container or anything therein for the purpose of liberating a person who, having entered to aid him in the execution of a warrant, is detained therein, or when necessary for his own liberation.
Source: SDC 1939 & Supp 1960, § 34.1107; SDCL, §§ 23-15-14, 23-15-15; SL 1978, ch 178, § 445.
23A-35-9. Grounds for no-knock warrant--Powers of officer executing.
If a committing magistrate who has been asked to issue a search warrant is satisfied that there is probable cause to believe that if notice were given prior to its execution, the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, he may include in the warrant a direction that the officer executing it is not required to give the notice required by § 23A-35-8. In such case, the officer who executes the warrant may, without notice of his authority and purpose, enter any structure, portion of a structure or vehicle, or anything therein, by whatever means, including breaking therein.
Source: SL 1970, ch 229, § 11 (c) (2); SDCL Supp, § 39-17-125; SDCL, § 34-20B-66; SL 1978, ch 178, § 446.
23A-35-10. (Rule 41(d)) Receipt and copy of warrant given to person from whom property taken--Inventory filed with return of warrant--Copies of inventory.
An officer taking property under a warrant shall give to the person from whom or from whose premises the property was taken, a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be signed under oath by the officer. The committing magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
Source: SDC 1939 & Supp 1960, § 34.1109; SDCL, § 23-15-18; SL 1978, ch 178, § 447.
23A-35-11. (Rule 41(e)) Motion in circuit court for return of property illegally seized--Restoration of property--Treatment as motion to suppress evidence.
A person aggrieved by an unlawful search and seizure may move the circuit court for the county in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the county of the trial after an indictment or information is filed, it shall be treated also as a motion to suppress under chapter 23A-8.
Source: SL 1978, ch 178, § 448.
23A-35-12. (Rule 41(f)) Motion to suppress evidence in trial court.
A motion to suppress evidence may be made in the court of the county of trial as provided in chapter 23A-8.
Source: SL 1978, ch 178, § 449.
23A-35-13. (Rule 41(g)) Papers filed with clerk of court by magistrate to whom warrant returned.
A committing magistrate to whom a warrant is returned shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of the circuit court for the county in which the property was seized.
Source: SDC 1939 & Supp 1960, § 34.1111; SDCL, § 23-15-20; SL 1978, ch 178, § 450.
23A-35-14. (Rule 41(h)) Special provisions for search unimpaired--Property defined.
This chapter does not modify any inconsistent provision of this code regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" as used in this chapter includes documents, books, papers, and any other tangible objects.
Source: SL 1978, ch 178, § 451.
CHAPTER 23A-35A
INTERCEPTION OF WIRE, ELECTRONIC, OR ORAL COMMUNICATIONS
23A-35A-1 Definition of terms.
23A-35A-2 Authorization or approval for interception of communications.
23A-35A-3 Authority of attorney general or state's attorney to apply for order for interception of communications.
23A-35A-4 Application to intercept communications--Form and contents.
23A-35A-5 Circuit judge to authorize interception.
23A-35A-6 Ex parte order authorizing wiretapping or eavesdropping--Probable cause required for entry.
23A-35A-7 Contents of order.
23A-35A-8 Cooperation and technical assistance required of carriers, landlords, and others--Compensation.
23A-35A-9 Progress reports to issuing judge.
23A-35A-10 Duration of order--Extensions.
23A-35A-11 Authority for eavesdropping--Retention of orders and papers by applicant--Copy of order retained by judge.
23A-35A-12 Sealing of applications and orders--Custody--Disclosure for good cause.
23A-35A-13 Recording of intercepted communications if possible--Sealing of recordings.
23A-35A-14 Disclosures to interested parties--Inspection of intercepted communications, application, or order--Postponement of notice.
23A-35A-15 Disclosure of contents of intercepted communications among investigative or law enforcement officers.
23A-35A-16 Appropriate use of contents of intercepted communication by investigative or law enforcement officer.
23A-35A-17 Disclosure of contents of intercepted communication in court or grand jury proceeding.
23A-35A-18 Interception of communications relating to offenses other than specified in order--Use of contents.
23A-35A-19 Privileged communications.
23A-35A-20 Overhearing or recording communications, conversations, or jury deliberations by means of eavesdropping device as felony.
23A-35A-21 Exemptions from chapter.
23A-35A-22 Use of pen register or trap and trace device without court order prohibited--Violation as misdemeanor.
23A-35A-23 Application of prohibition to provider of wire or electronic communication service.
23A-35A-24 Application for order authorizing use of pen register or trap and trace device.
23A-35A-25 Contents of application.
23A-35A-26 Issuance of ex parte order authorizing use of pen register or trap and trace device.
23A-35A-27 Contents of ex parte order authorizing use of pen register or trap and trace device.
23A-35A-28 Time limitation on use of pen register or trap and trace device--Extension.
23A-35A-29 Order sealed--Disclosure of existence of pen register or trap and trace device prohibited.
23A-35A-30 Persons required to assist installation of pen register.
23A-35A-31 Installation of trap and trace device--Assistance--Results given to law enforcement officer.
23A-35A-32 Reasonable compensation for assistance.
23A-35A-33 Persons providing assistance immune.
23A-35A-34 Good faith reliance on court order as complete defense.
23A-35A-1. Definition of terms.
Terms used in this chapter mean:
(1) "Aggrieved person," a person who was a party to any intercepted wire, electronic, or oral communication or a person against whom the interception was directed;
(2) "Attorney general," the attorney general of the State of South Dakota;
(3) "Chapter 119 of the United States Code," Chapter 119 of Part I of Title 18, United States Code, being Public Law 90-351, the Omnibus Crime Control and Safe Streets Act of 1968;
(4) "Communications common carrier," the meaning given to the term, common carrier, by section 153 of Title 47 of the United States Code;
(5) "Contents," with respect to any wire, electronic, or oral communication, any information concerning the identity of the parties to the communication or the existence, substance, purport, or meaning of that communication;
(6) "Eavesdropping device," any electronic, mechanical, or other apparatus which is intentionally used to intercept a wire, electronic, or oral communication other than:
(a) Any telephone, telegraph instrument, or electronic communication device, equipment, or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of business and being used by the subscriber or user in the ordinary course of business; or (ii) being used by a communications common carrier in the ordinary course of business, or by an investigative or law enforcement officer in the ordinary course of duty; or
(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal;
(7) "Intercept," the aural acquisition of the contents of any wire, electronic, or oral communication through the use of any eavesdropping device;
(8) "Investigative or law enforcement officer," any officer of the State of South Dakota or any political subdivision of this state who is empowered by the laws of this state to conduct investigations of or to make arrests for offenses designated and enumerated in this chapter, any law enforcement officer of the United States and any attorney authorized by the laws of this state to prosecute or participate in the prosecution of offenses designated and enumerated in this chapter;
(9) "Judge," or "judge of competent jurisdiction," the judge of any circuit court of the State of South Dakota;
(10) "Oral communication," any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation;
(11) "Pen register," a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the communication system that the device is attached. The term does not include any device used by a provider or customer of a wire communication service for billing, or recording as an incident to billing, for communications services provided by the provider or customer of a wire communication service for cost accounting or other similar purposes in the ordinary course of business;
(12) "Person," any employee, or agent of the United States or any state or political subdivision thereof, and any individual, partnership, limited liability company, association, joint stock company, trust, or corporation;
(13) "State's attorney," the state's attorney of any county of the State of South Dakota;
(14) "Trap and trace device," a device that captures incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted;
(15) "Wire communication," any communication made through the use of facilities for the transmission of communications by the aid of wire, cable, radio, or other connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating the facilities for the transmission of interstate or foreign communications;
(16) "Electronic communication," any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted by a wire, radio, electromagnetic, electronic, or optical system.
Source: SL 1969, ch 158, § 1; SDCL Supp, § 23-13A-1; SL 1983, ch 187, § 1; SL 1988, ch 194, § 1; SL 1994, ch 351, § 44; SL 2006, ch 136, § 2; SL 2017, ch 108, § 1.
23A-35A-2. Authorization or approval for interception of communications.
Any order authorizing or approving the interception of wire, electronic, or oral communications may be granted, subject to the provisions of this chapter, if the interception may provide or has provided evidence of the commission of, or of any conspiracy to commit, the following offenses as otherwise defined by the laws of this state: crimes of violence listed in subdivision 22-1-2(9); sex crimes listed in § 22-24B-1; escape as defined in chapter 22-11A; fugitives from justice with an active felony warrant; gambling; bribery; theft; unlawful use of a computer; and unauthorized manufacturing, distribution or counterfeiting of controlled substances or marijuana.
Source: SL 1969, ch 158, § 6; SDCL Supp, § 23-13A-3; SL 1980, ch 181, § 2; SL 1981, ch 177, § 3; SL 1984, ch 183; SL 2017, ch 108, § 2; SL 2020, ch 101, § 1.
23A-35A-3. Authority of attorney general or state's attorney to apply for order for interception of communications.
The attorney general or any state's attorney may apply to any circuit judge for an order to authorize or approve the interception of wire, electronic, or oral communications by an investigative or law enforcement officer having the responsibility of investigating the offense for which the application is made and any offense pursuant to § 23A-35A-2. The attorney general or the state's attorney applying may designate a deputy or assistant to make any subsequent applications or presentations necessary to implement the order or comply with any of the provisions of this chapter.
Source: SL 1969, ch 158, § 4; SDCL Supp, § 23-13A-4; SL 1980, ch 181, § 3; SL 1983, ch 187, § 2; SL 2017, ch 108, § 3.
23A-35A-4. Application to intercept communications--Form and contents.
The attorney general or state's attorney shall make an application pursuant to § 23A-35A-3 in writing and upon the oath or affirmation of the applicant. The application shall include:
(1) The name and title of the applicant;
(2) A full and complete statement of the facts and circumstances relied upon by the applicant, including the supporting oath or affirmation of the investigating officer of any police department of the state or any political subdivision thereof, or the investigating sheriff or deputy of any county, to justify the belief that an order should be issued, including:
(a) Details as to the particular crime that has been, is being, or is about to be committed;
(b) The identity of the person, if known, believed to be committing the offense and whose communications are to be intercepted;
(c) A particular description of the type of communications sought to be intercepted;
(d) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; and
(e) In the case of a telegraphic, electronic, or telephonic communication, identifying the particular telephone number or telegraph line involved;
(3) A full and complete statement as to if other investigative procedures have been tried and failed, why other investigative procedures reasonably appear to be unlikely to succeed if tried, or to be too dangerous;
(4) A statement of the period of time the interception is required to be maintained. If the nature of the investigation is such that authorization to intercept should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur after the first communication obtained;
(5) A full and complete statement of the facts concerning all previous applications known to the person authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, electronic, or oral communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application; and
(6) If the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
Source: SL 1980, ch 181, § 10; SL 2017, ch 108, § 4.
23A-35A-5. Circuit judge to authorize interception.
Only a judge of a circuit court of the State of South Dakota may grant orders authorizing the interception of wire, electronic, or oral communications.
Source: SL 1969, ch 158, § 3; SDCL Supp, § 23-13A-5; SL 1980, ch 181, § 4; SL 2017, ch 108, § 5.
23A-35A-6. Ex parte order authorizing wiretapping or eavesdropping--Probable cause required for entry.
Upon proper application, a judge may enter an ex parte order, as requested or with any appropriate modifications, authorizing wiretapping or eavesdropping if the judge determines based on the facts submitted by the applicant that:
(1) There is probable cause to believe that a person is committing, has committed, or is about to commit a particular crime pursuant to § 23A-35A-2;
(2) There is probable cause to believe that particular communications concerning that offense will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or to be too dangerous; and
(4) There is probable cause to believe that the facilities from which or the place where the wire, electronic, or oral communications are to be used, in connection with the commission of the offense, or are leased to, listed in the name of or commonly used by the person.
Source: SL 1980, ch 181, § 11; SL 2017, ch 108, § 6.
23A-35A-7. Contents of order.
Each order authorizing the interception of any wire, electronic, or oral communication shall specify:
(1) The identity of the person, if known, whose communications are to be intercepted;
(2) The nature and location of the communications facilities as to which, or the place where authority to intercept is granted;
(3) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(4) The identity of the agency authorized to intercept the communications, and of the person authorizing the application;
(5) The period of time the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained; and
(6) That the authorization for wiretapping or eavesdropping be executed as soon as practicable; that the wiretapping or eavesdropping be conducted in such a way as to minimize interception of communications not otherwise subject to interception under this section; and that the wiretapping or eavesdropping shall terminate upon attainment of the authorized objective, or on the date specified, whichever comes first.
Source: SL 1980, ch 181, § 12; SL 2017, ch 108, § 7.
23A-35A-8. Cooperation and technical assistance required of carriers, landlords, and others--Compensation.
Any order authorizing wiretapping or eavesdropping shall, upon the request of the applicant, direct that the common carrier, landlords, custodians, or other persons furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier is according the person whose communications are to be intercepted.
Any common carrier, or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates.
Source: SL 1980, ch 181, § 18.
23A-35A-9. Progress reports to issuing judge.
The order may require written reports to be made to the issuing judge at specified intervals showing the progress made toward achieving the authorized objective and the need for continued interception.
Source: SL 1980, ch 181, § 19.
23A-35A-10. Duration of order--Extensions.
No order entered under this section may authorize the interception of any wire, electronic, or oral communication for any period longer than is necessary to achieve the objective of the authorization, in any event no longer than thirty days. Any extension of any order may be granted, but only upon application for an extension made in accordance with § 23A-35A-4 and the judge makes the required findings pursuant to § 23A-35A-6. The period of extension may not be longer than the authorizing judge deems necessary to achieve the purposes for which the extension was granted and in no event for longer than thirty days.
Source: SL 1980, ch 181, § 13; SL 2017, ch 108, § 8.
23A-35A-11. Authority for eavesdropping--Retention of orders and papers by applicant--Copy of order retained by judge.
Any ex parte order for wiretapping and eavesdropping, together with the papers upon which the application was based, shall be delivered to and retained by the applicant during the duration of the wiretap as authority for the eavesdropping authorized therein. A true copy of such order shall at all times be retained by the judge or justice issuing the same.
Source: SL 1980, ch 181, § 14.
23A-35A-12. Sealing of applications and orders--Custody--Disclosure for good cause.
After the termination of the authorized eavesdropping, applications made and orders granted under this statute shall within ten days be returned to and sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction or as otherwise provided.
Source: SL 1980, ch 181, § 15.
23A-35A-13. Recording of intercepted communications if possible--Sealing of recordings.
The contents of any wire, electronic, or oral communication intercepted by any means authorized by this statute shall, if possible, be recorded. The recording of the contents of any wire, electronic, or oral communication under this section shall be done in a way to protect the recording from editing or alteration. Immediately upon the expiration of the period of the order or extension, the recordings shall be made available to the judge issuing the order or extension and sealed under the judge's direction.
Source: SL 1980, ch 181, § 16; SL 2017, ch 108, § 9.
23A-35A-14. Disclosures to interested parties--Inspection of intercepted communications, application, or order--Postponement of notice.
Within ninety days after an application under § 23A-35A-3 is denied, or the period of an order or extension expires, the issuing or denying judge shall cause the persons named in the order or application and any other parties to intercepted communications as the judge may determine the interests of justice require, to be served with an inventory including notice of:
(1) The fact of the entry of the order or the application;
(2) The date of the entry and the period of authorized interception, or the denial of the application; and
(3) The fact that during the period wire, electronic, or oral communications were or were not intercepted.
On motion, the judge may make available to the person or the person's counsel for inspection the portions of the intercepted communications, applications, and order as the judge determines to be in the interest of justice. On an ex parte showing of good cause to the judge, the serving of the notice required by this section may be postponed.
Source: SL 1980, ch 181, § 17; SL 2017, ch 108, § 10.
23A-35A-15. Disclosure of contents of intercepted communications among investigative or law enforcement officers.
Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic, or oral communication, or evidence derived from the contents, may disclose the contents to another investigative or law enforcement officer to the extent that a disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
Source: SL 1969, ch 158, § 5 (1); SDCL Supp, § 23-13A-6; SL 1980, ch 181, § 5; SL 2017, ch 108, § 11.
23A-35A-16. Appropriate use of contents of intercepted communication by investigative or law enforcement officer.
Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic, or oral communication or evidence derived from the contents may use the contents to the extent appropriate to the proper performance of the officer's official duties.
Source: SL 1969, ch 158, § 5 (2); SDCL Supp, § 23-13A-7; SL 1980, ch 181, § 6; SL 2017, ch 108, § 12.
23A-35A-17. Disclosure of contents of intercepted communication in court or grand jury proceeding.
Any person, who has received, by any means authorized by this chapter or chapter 119 of the United States Code, or a like statute of another state, any information concerning the contents of a wire, electronic, or oral communication, or evidence derived from the contents, intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or any derivative evidence while giving testimony under oath or affirmation in any proceeding in any court in this state, before any grand jury in this state, in any court of the United States or of any other state, or in any federal or state grand jury proceeding.
Source: SL 1969, ch 158, § 5 (3); SDCL Supp, § 23-13A-8; SL 2017, ch 108, § 13.
23A-35A-18. Interception of communications relating to offenses other than specified in order--Use of contents.
If an investigative or law enforcement officer, while engaged in intercepting wire, electronic, or oral communications in the manner authorized by this chapter, intercepts wire, electronic, or oral communications relating to offenses not specified in the order of authorization or approval, the contents of the communication, and evidence derived from the communication, may be disclosed or used as provided in §§ 23A-35A-15 and 23A-35A-16. The contents and any evidence derived from the contents may be used under § 23A-35A-17 if authorized or approved by a circuit court judge where the judge finds on subsequent application, made as soon as practicable, that the contents were otherwise intercepted in accordance with the provisions of this chapter.
Source: SL 1969, ch 158, § 5 (5); SDCL Supp, § 23-13A-9; SL 1980, ch 181, § 7; SL 2017, ch 108, § 14.
23A-35A-19. Privileged communications.
No otherwise privileged wire, electronic, or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter may lose its privileged character.
Source: SL 1969, ch 158, § 5 (4); SDCL Supp, § 23-13A-10; SL 1980, ch 181, § 8; SL 2017, ch 108, § 15.
23A-35A-20. Overhearing or recording communications, conversations, or jury deliberations by means of eavesdropping device as felony.
Except as provided in § 23A-35A-21, a person is guilty of a Class 5 felony who is not:
(1) A sender or receiver of a communication who intentionally and by means of an eavesdropping device overhears or records a communication, or aids, authorizes, employs, procures, or permits another to overhear or record, without the consent of either a sender or receiver of the communication;
(2) A person present during a conversation or discussion who intentionally and by means of an eavesdropping device overhears or records the conversation or discussion, or aids, authorizes, employs, procures, or permits another to overhear or record, without the consent of a party to the conversation or discussion; or
(3) A member of a jury who intentionally records or listens to by means of an eavesdropping device the deliberations of the jury or aids, authorizes, employs, procures, or permits another to record or listen.
Source: SL 1980, ch 181, § 20; SL 2006, ch 136, § 1; SL 2017, ch 108, § 16.
23A-35A-21. Exemptions from chapter.
The following is exempt from the provisions of this chapter:
(1) Wiretapping and eavesdropping pursuant to an ex parte order granted pursuant to § 23A-35A-6;
(2) The normal use of services, equipment, and facilities provided by a common carrier pursuant to tariffs on file with the Public Utilities Commission of the State of South Dakota or the federal communications commission;
(3) The normal functions of any operator of a switchboard;
(4) Any officer, agent, or employee of a communications common carrier engaged in the business of providing service, equipment, and facilities for communication who performs acts otherwise prohibited by this chapter in providing such communication services, equipment, and facilities or in constructing, maintaining, repairing, operating, or using same, including the obtaining of billing and accounting information, the protecting of the communication services, equipment, and facilities from illegal use in violation of tariffs on file with the corporation commission of this state or the federal communications commission and the protecting of the common carrier from the commission of fraud against it;
(5) The providing of requested information or other response to a subpoena or other order issued by a court of competent jurisdiction or on demand of other lawful authority; and
(6) Any officer, agent, or employee of a communications common carrier, or any common carrier, who provides information, facilities, or technical assistance to an investigative or law enforcement officer authorized to intercept or eavesdrop pursuant to an ex parte order granted pursuant to § 23A-35A-6.
Source: SL 1980, ch 181, § 21; SL 1984, ch 12, § 18; SL 2017, ch 108, § 17.
23A-35A-22. Use of pen register or trap and trace device without court order prohibited--Violation as misdemeanor.
Except as provided in § 23A-35A-1 or 23A-35A-22 to 23A-35A-34, inclusive, no person may install or use a pen register or a trap or trace device without first obtaining a court order under § 23A-35A-27. A violation of this section is a Class 1 misdemeanor.
Source: SL 1988, ch 194, § 2.
23A-35A-23. Application of prohibition to provider of wire or electronic communication service.
The prohibition in § 23A-35A-22 does not apply with respect to the use of a pen register or a trap and trace device by a provider of wire or electronic communication service:
(1) Relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service;
(2) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful, or abusive use of service; or
(3) If the consent of the user of that service has been obtained.
Source: SL 1988, ch 194, § 3; SL 2017, ch 108, § 18.
23A-35A-24. Application for order authorizing use of pen register or trap and trace device.
An investigative or law enforcement officer may apply for an order or an extension of an order under § 23A-35A-27, authorizing or approving the installation and use of a pen register or a trap and trace device under §§ 23A-35A-1 and 23A-35A-22 to 23A-35A-34, inclusive, in writing under oath or equivalent affirmation, to a judge of competent jurisdiction.
Source: SL 1988, ch 194, § 4.
23A-35A-25. Contents of application.
An application under § 23A-35A-24 shall include the identity of the law enforcement or investigative officer making the application and the identity of the law enforcement agency conducting the investigation and a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
Source: SL 1988, ch 194, § 5.
23A-35A-26. Issuance of ex parte order authorizing use of pen register or trap and trace device.
Upon an application made under §§ 23A-35A-24 and 23A-35A-25, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the law enforcement or investigative officer has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.
Source: SL 1988, ch 194, § 6.
23A-35A-27. Contents of ex parte order authorizing use of pen register or trap and trace device.
An order issued under § 23A-35A-26:
(1) Shall specify the identity, if known, of the person whose name is listed on the telephone line or electronic communication device that the pen register or trap and trace device is to be attached; the identity, if known, of the person who is the subject of the criminal investigation; the number and, if known, the physical location of the telephone line or electronic communication device that the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order; and a statement of the offense the information likely to be obtained by the pen register or trap and trace device relates to; and
(2) Shall direct, upon the request of the applicant, the furnishing of information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device under §§ 23A-35A-30 to 23A-35A-33, inclusive.
Source: SL 1988, ch 194, § 7; SL 2017, ch 108, § 19.
23A-35A-28. Time limitation on use of pen register or trap and trace device--Extension.
An order issued under § 23A-35A-1 or 23A-35A-22 to 23A-35A-34, inclusive, shall authorize the installation and use of a pen register or a trap and trace device for a period not to exceed sixty days. Extensions of an order may be granted, but only upon an application for an order under §§ 23A-35A-24 and 23A-35A-25 and upon the judicial finding required by § 23A-35A-26. The period of extension shall be for a period not to exceed sixty days.
Source: SL 1988, ch 194, § 8.
23A-35A-29. Order sealed--Disclosure of existence of pen register or trap and trace device prohibited.
An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
(1) The order be sealed until otherwise ordered by the court; and
(2) The person owning or leasing the line to which the pen register or a trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the judge.
Source: SL 1988, ch 194, § 9.
23A-35A-30. Persons required to assist installation of pen register.
Upon the request of a prosecuting attorney or an officer of a law enforcement agency authorized to install and use a pen register under § 23A-35A-1 or 23A-35A-22 to 23A-35A-34, inclusive, a provider of wire or electronic communication service, landlord, custodian, or other person shall furnish the investigative or law enforcement officer immediately all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if the assistance is directed by a court order as provided in § 23A-35A-27.
Source: SL 1988, ch 194, § 10.
23A-35A-31. Installation of trap and trace device--Assistance--Results given to law enforcement officer.
Upon the request of a prosecuting attorney or an officer of a law enforcement agency authorized to receive the results of a trap and trace device under § 23A-35A-1 or §§ 23A-35A-22 to 23A-35A-34, inclusive, a provider of a wire or electronic communication service, landlord, custodian, or other person shall install the device immediately on the appropriate line or electronic device and shall furnish the investigative or law enforcement officer all additional information, facilities, and technical assistance including installation and operation of the device unobtrusively and with minimal interference with the services the person ordered by the court provides the party with respect to the installation and use is to take place, if the installation and assistance is directed by a court order as provided in § 23A-35A-27. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the officer of a law enforcement agency, designated in the court order, at reasonable intervals during regular business hours for the duration of the order.
Source: SL 1988, ch 194, § 11; SL 2017, ch 108, § 20.
23A-35A-32. Reasonable compensation for assistance.
A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for the reasonable expenses incurred in providing the facilities and assistance.
Source: SL 1988, ch 194, § 12.
23A-35A-33. Persons providing assistance immune.
No cause of action may lie in any court against any provider of a wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order under § 23A-35A-1 or 23A-35A-22 to 23A-35A-34, inclusive.
Source: SL 1988, ch 194, § 13.
23A-35A-34. Good faith reliance on court order as complete defense.
A good faith reliance on a court order, a legislative authorization, or a statutory authorization is a complete defense against any civil or criminal action brought under § 23A-35A-1 or 23A-35A-22 to 23A-35A-34, inclusive, or any other law.
Source: SL 1988, ch 194, § 14.
23A-35B-1
Definitions.
23A-35B-2
Victim's request for testing of self.
23A-35B-3
Victim's request for testing of defendant or juvenile--Hearing--Search warrant for
blood sample--Time for testing.
23A-35B-3.1
Victim request for HIV test of defendant or juvenile--Hearing--Order--Time for
testing.
23A-35B-4
Testing procedure--Notification of victim as to results--Payment for testing.
23A-35B-5
Confidentiality--Test results unavailable to establish guilt or innocence.
23A-35B-6
Testing or counseling for officer upon possible exchange of bodily fluids with
suspect.
23A-35B-7
Emergency medical services person's request for information or testing of source
individual.
23A-35B-8
Mandatory HIV testing of persons convicted of prostitution or solicitation of
prostitution.
23A-35B-9
Time for HIV testing.
23A-35B-10
Convicted person to pay cost of testing.
23A-35B-11
Confidentiality of test results.
23A-35B-12
Petition for release of test results--Hearing.
23A-35B-13
Test results not to be used in criminal prosecution--Confidentiality.
23A-35B-1. Definitions.
Terms used in this chapter mean:
(1) "Assault," an offense described in § 22-18-1, in which the facts show a possibility of exchange of bodily fluids;
(2) "Blood-borne pathogens," any of a family of pathogenic micro-organisms that are present in and may be transmitted by human blood, including hepatitis B and HIV;
(3) "Crime of violence," any of the offenses described in subdivision 22-1-2(9);
(4) "Defendant," a person as described in subdivision 23A-45-9(4);
(5) "Emergency medical services person," a person who renders emergency care or assistance including:
(a) A person employed or receiving compensation to provide out-of-hospital emergency medical services such as a firefighter, paramedic, emergency medical technician, licensed nurse, rescue squad person, or other person who serves as an employee or volunteer of an ambulance service or other first responder, who provides out-of-hospital emergency medical services during the performance of the person's duties;
(b) A person employed as a law enforcement officer;
(c) A person employed as a coroner or a funeral director;
(d) A person employed as a forensic crime laboratory worker while working outside the laboratory and involved in a criminal investigation; or
(e) A person who renders emergency care or assistance at the scene of an emergency or while an injured person is being transported to receive medical care and who is acting as an unpaid volunteer also known as a good samaritan;
(6) "HIV," the human immunodeficiency virus or any other identified causative agent of acquired immune deficiency syndrome (AIDS);
(7) "Juvenile," a minor charged in juvenile court with being a delinquent child as the result of actions that would constitute a sexual assault, an assault or a crime of violence in criminal court;
(8) "Law enforcement officer," any person described in subdivision 23A-45-9(9) or (14);
(9) "Sexual assault," an offense described in chapter 22-22 in which the facts show a possibility of exchange of bodily fluids;
(10) "Source individual," any person, living or dead, whose blood, tissue, or potentially infectious body fluids may be a source of blood-borne pathogen exposure to an emergency medical services person;
(11) "Test," "testing," any medically recognized test for determining the presence of blood-borne pathogens; and
(12) "Victim," any person who is the direct subject of an alleged act which would constitute a crime of violence as defined by subdivision 22-1-2(9), a violation of chapter 22-22, an assault as defined by § 22-18-1, a violation of § 22-18-26, or a motor vehicle accident which involved a violation of chapter 32-23 or the parent or guardian of such a person if the person is under age eighteen. Except for § 23A-35B-3, a victim also includes any emergency medical services person who has potentially been exposed to a blood-borne pathogen while rendering aid to a source individual. If a victim is unable to make a request, a member of the victim's immediate family may make such request upon the victim's behalf.
Source: SL 1991, ch 203, § 1; SL 1992, ch 172, § 1; SL 1993, ch 184, § 1; SL 2002, ch 121, § 1; SL 2010, ch 132, § 1.
23A-35B-2. Victim's request for testing of self.
A victim may request that the Department of Health provide counseling, testing for infection by blood-borne pathogens, and referral for appropriate health care and support services to the victim through its public health services. Such referral does not include any requirement that the Department of Health bear any responsibility for provision of such health care or support services to the victim.
Source: SL 1991, ch 203, § 1A; SL 1993, ch 184, § 2.
23A-35B-3. Victim's request for testing of defendant or juvenile--Hearing--Search warrant for blood sample--Time for testing.
A victim or a law enforcement officer may request in writing to the state's attorney that the defendant or the juvenile be tested for blood-borne pathogen infection by the Department of Health and that a search warrant be obtained for the purpose of taking a blood sample from the defendant or the juvenile for testing for such infection. The written request shall state that the victim or law enforcement officer believes there was an exchange of blood, semen, or other bodily fluids from the defendant or the juvenile to the victim or law enforcement officer and shall state the factual basis for believing there was such an exchange. The court shall hold a hearing at which both the victim or law enforcement officer and the defendant or the juvenile may be present. If the court finds probable cause to believe that the defendant or the juvenile committed the offense and that there was an exchange of blood, semen, or other bodily fluids from the defendant or the juvenile to the victim or from the defendant or the juvenile to the law enforcement officer, the court may order a search warrant for the purpose of taking a blood sample from the defendant or the juvenile for testing for blood-borne pathogen infection. If the court orders a search warrant, the Department of Health shall initiate the test for blood-borne pathogen infection within forty-eight hours after the department receives the blood sample.
Source: SL 1991, ch 203, § 2; SL 1992, ch 172, § 3; SL 1993, ch 184, § 3; SL 2009, ch 126, § 1.
23A-35B-3.1. Victim request for HIV test of defendant or juvenile--Hearing--Order--Time for testing
A victim, or a victim or witness assistant, may request in writing to the state's attorney that a defendant or juvenile against whom an information, indictment, or petition is presented for a crime in which, by force or threat of force, the defendant or juvenile compelled the victim to engage in sexual activity be tested for HIV by the Department of Health, and that a search warrant be obtained for the purpose of taking a blood sample from the defendant or juvenile to test for HIV. A request under this section shall state that the victim believes there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, and shall state the factual basis for believing the exchange occurred.
Upon motion, a court of competent jurisdiction shall hold a hearing at which both the victim and defendant or juvenile may be present. If the court finds probable cause that the defendant or juvenile committed the offense and that there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, the court shall order a search warrant for the purpose of taking a blood sample from the defendant or juvenile to test for HIV in accordance with § 23A-35B-4. A blood sample shall be taken within forty-eight hours of the date of the request under this section or, if later, the date on which the information, indictment, or petition was:
(1) Presented or filed, and the defendant or juvenile was taken into custody; or
(2) Served on the defendant or juvenile.
The court shall include in the order a requirement for any follow-up test for HIV that is medically appropriate based on the results of the initial test. Payment for any test for HIV under this section shall be in accordance with § 23A-35B-4. The victim, the victim or witness assistant, and the defendant shall be notified in accordance with § 23A-35B-4 of the results of any test for HIV under this section.
Source: SL 2019, ch 117, § 1.
23A-35B-4. Testing procedure--Notification of victim as to results--Payment for testing.
A health professional licensed or certified to do so shall take the blood samples required for testing for blood-borne pathogen infection and forward them to the Department of Health for testing. The testing shall take place under a test protocol determined by the Department of Health. A licensed physician designated by the victim or the law enforcement officer to receive the results of the test shall notify the victim or the law enforcement officer of the results of the victim's or law enforcement officer's test and shall notify the victim or the law enforcement officer and the defendant or the juvenile of the results of the defendant's or the juvenile's test within forty-eight hours after receipt. The county in which the alleged crime of violence, assault, sexual assault, or equivalent juvenile offense occurred shall pay for the services of the licensed or certified health professionals involved in the counseling and the testing, and a defendant, if convicted, shall reimburse the county for the costs of the testing. If the defendant is an inmate under the jurisdiction of the Department of Corrections, the costs of the testing shall be taken from the inmate's account pursuant to § 24-2-29.
Source: SL 1991, ch 203, § 3; SL 1992, ch 172, § 4; SL 1993, ch 184, § 4; SL 2002, ch 121, § 2.
23A-35B-5. Confidentiality--Test results unavailable to establish guilt or innocence.
All persons involved in carrying out the provisions of this chapter shall act in a manner that will protect the confidentiality of the victim, the source individual, and the defendant or juvenile, including sealing relevant court records. The results of the test for infection by blood-borne pathogens may not be used to establish a defendant's guilt or innocence of the charge and may not be used to determine a juvenile's status as a delinquent child.
Source: SL 1991, ch 203, § 4; SL 1993, ch 184, § 5; SL 2010, ch 132, § 3.
23A-35B-6. Testing or counseling for officer upon possible exchange of bodily fluids with suspect.
Any law enforcement officer who has reason to believe that in a crime of violence case, an assault, a violation of chapter 32-23 or a case of resisting arrest, or in an equivalent juvenile delinquency adjudication, there may have been an exchange of blood or other bodily fluids from the defendant or the juvenile to the officer, the officer may request that the Department of Health provide counseling, testing for infection by blood-borne pathogens, and referral for appropriate health care and support services to the officer through its public health services. Such referral does not include any requirement that the Department of Health bear any responsibility for provision of such health care or support services to the officer.
Source: SL 1992, ch 172, § 2; SL 1993, ch 184, § 6.
23A-35B-7. Emergency medical services person's request for information or testing of source individual.
An emergency medical services person who is a victim may request in writing to the source individual, or if the source individual is deceased, to a relative of the source individual or to the source individual's estate, for medical records or information concerning blood-borne pathogens. If the source individual, a relative, or the estate denies the request or does not provide a response within three business days, the emergency medical services person may file a petition with the circuit court to require the source individual to provide the information or to be tested for blood-borne pathogens by the Department of Health and that an order be obtained for the purpose of taking a blood sample from the source individual for testing. The petition shall state that the emergency medical services person believes there was an exchange of blood, semen, or other bodily fluids from the source individual to the emergency medical services person and shall state the factual basis for believing there was such an exchange. The court shall hold a hearing at which both the emergency medical services person and the source individual, a relative, or the estate may be present. If the court finds probable cause to believe that there was an exchange of blood, semen, or other bodily fluids from the source individual to the emergency medical services person, the court may issue an order for the purpose of taking a blood sample from the source individual for testing for blood-borne pathogens. If the source individual is not available for testing, the court may order a release of medical information from the source individual's medical providers to the emergency medical services person.
Source: SL 2010, ch 132, § 2.
23A-35B-8. Mandatory HIV testing of persons convicted of prostitution or solicitation of prostitution.
Any person convicted of prostitution or solicitation of prostitution shall be required, with or without that person's consent, to undergo a standard diagnostic test for human immunodeficiency virus (HIV) under the testing protocol of the Department of Health.
Source: SL 2012, ch 134, § 1.
23A-35B-9. Time for HIV testing.
After conviction, but prior to sentencing, the court shall order the convicted person to submit to an HIV test and shall issue a warrant to collect a blood sample from that person. A health professional licensed or certified to do so shall take the blood samples required for testing and forward them to the Department of Health. The Department of Health shall initiate the test for HIV within forty-eight hours after the department receives the blood sample. If the screening test required by this section indicates the presence of antibodies to HIV, the court shall order the person to undergo a confirmatory test.
Source: SL 2012, ch 134, § 2.
23A-35B-10. Convicted person to pay cost of testing.
The court shall order the convicted person to pay the cost of the testing. The cost shall be treated as any other court cost or fine under chapter 23A-27. If the person tested is an inmate under the jurisdiction of the Department of Corrections, the cost of testing shall be taken from the person's inmate account pursuant to § 24-2-29.
Source: SL 2012, ch 134, § 3.
23A-35B-11. Confidentiality of test results.
The final test results shall be reported to the person tested along with precautionary, medical care, and counseling information. Except as provided in § 23A-35B-12, the results of the test shall remain confidential.
Source: SL 2012, ch 134, § 4.
23A-35B-12. Petition for release of test results--Hearing.
Any person who may have had sexual relations with or otherwise exchanged bodily fluids with the tested person may petition the court to receive the results of the HIV test. The petition shall state that the petitioner believes there was an exchange of blood, semen, or other bodily fluids with the tested person and shall state the factual basis for believing there was such an exchange. The court shall hold a hearing at which both the petitioner and the tested person may be present. If the court finds probable cause that there was an exchange of blood, semen, or other bodily fluids, the court may issue an order releasing the test results to the petitioner.
Source: SL 2012, ch 134, § 5.
23A-35B-13. Test results not to be used in criminal prosecution--Confidentiality.
The results of the test may not be used as evidence in any criminal prosecution. All persons involved in carrying out the provisions of §§ 23A-35B-8 to 23A-35B-12, inclusive, shall act in a manner that will protect the confidentiality of the petitioner and the person tested, including sealing relevant court records as provided in § 23A-35B-5.
Source: SL 2012, ch 134, § 6.
23A-36-1
Determination by magistrate whether probable cause exists for search warrant--Notice of
hearing to person in possession.
23A-36-2
Hearing on search warrant for obscene material--Evidence received.
23A-36-3
Magistrate's orders to prevent removal of material pending hearing.
23A-36-4
Hearing on obscenity or nonobscenity of material--Determination of probable cause for
search warrant.
23A-36-5
Issuance of search warrant on finding of probable cause.
23A-36-6
Notice alleging nonobscenity of material seized--Time of hearing.
23A-36-7
Hearing on obscenity of material seized--Return to owner if not obscene.
23A-36-8
Expert testimony not required in obscenity hearing--Evidence of community standards.
23A-36-9
Verdict on obscenity of material seized.
23A-36-10
Order for destruction of obscene material seized.
23A-36-1. Determination by magistrate whether probable cause exists for search warrant--Notice of hearing to person in possession.
Upon the filing of an affidavit for a search warrant to search for obscene material, the magistrate shall determine, by examination of the matter sought to be seized, if attached, by an examination of the affidavit describing the matter, or by such other manner or means that he deems necessary, if probable cause exists for a hearing upon the question of the issuance of a search warrant. If the magistrate determines that probable cause exists for a hearing, he shall issue notice to the person or persons in possession of the matter, setting a time and place for a hearing to determine if a search warrant shall issue.
Source: SL 1974, ch 165, § 7; SDCL Supp, § 22-24-39; SL 1978, ch 178, § 452.
23A-36-2. Hearing on search warrant for obscene material--Evidence received.
The hearing on the affidavit for the issuance of a search warrant shall be at such time and upon such reasonable notice given in such manner as the magistrate may direct. The magistrate's order as to notice and hearing shall give the adverse party the right to appear and produce the matter described in the affidavit for a search warrant, but shall not in any manner require him to produce the said matter.
Source: SL 1974, ch 165, § 8; SDCL Supp, § 22-24-40; SL 1978, ch 178, § 453.
23A-36-3. Magistrate's orders to prevent removal of material pending hearing.
The magistrate shall further have authority to render such orders as are reasonable and necessary, to protect the court's jurisdiction over the matter described in the affidavit for a search warrant and may issue orders requiring that the matter not be removed from its location as described in the affidavit for a search warrant or to make any change, alteration, or destruction of the matter until such time as a hearing has been conducted and the search warrant executed or the request therefor denied.
Source: SL 1974, ch 165, § 9; SDCL Supp, § 22-24-41; SL 1978, ch 178, § 454.
23A-36-4. Hearing on obscenity or nonobscenity of material--Determination of probable cause for search warrant.
At the time of the hearing on the issuance of a search warrant, the magistrate shall hear evidence concerning the obscenity of the matter and shall examine the matter or any copy of the same, if produced in court, and shall afford any person in possession of the matter sought to be seized or claiming ownership of or interest in the matter an opportunity to be heard as to the obscenity or nonobscenity of the matter. At the close of the hearing, the magistrate shall make a determination of whether probable cause exists to believe that the matter is obscene or nonobscene and shall determine if probable cause exists for the immediate issuance of a search warrant for its seizure.
Source: SL 1974, ch 165, § 11; SDCL Supp, § 22-24-43; SL 1978, ch 178, § 455.
23A-36-5. Issuance of search warrant on finding of probable cause.
If the magistrate finds that probable cause exists to believe that the matter is obscene and that probable cause exists for the immediate issuance of a search warrant, then he shall issue a search warrant ordering the seizure of the matter described in the affidavit for a search warrant.
Source: SL 1974, ch 165, § 12; SDCL Supp, § 22-24-44; SL 1978, ch 178, § 456.
23A-36-6. Notice alleging nonobscenity of material seized--Time of hearing.
In the event that a search warrant is issued and matter alleged to be obscene is seized, any person alleged to be in possession of the matter or claiming ownership of the matter at the time of its possession or seizure may file a notice in writing with the magistrate within ten days of the date of the seizure alleging that the matter is not obscene and the magistrate shall set a hearing within one day after request therefor, or at such time as the requesting party might agree.
Source: SL 1974, ch 165, § 13; SDCL Supp, § 22-24-46; SL 1978, ch 178, § 457.
23A-36-7. Hearing on obscenity of material seized--Return to owner if not obscene.
At a hearing pursuant to § 23A-36-6, evidence may be presented as to the obscenity or nonobscenity of the matter seized and at the conclusion of such additional hearing, the magistrate shall make a further determination of whether probable cause exists to believe that the matter is obscene or nonobscene. If at such hearing the magistrate finds that no probable cause exists to believe that the matter is obscene, then the matter shall be returned to the person or persons from whom it was seized.
Source: SL 1974, ch 165, § 13; SDCL Supp, § 22-24-47; SL 1978, ch 178, § 458.
23A-36-8. Expert testimony not required in obscenity hearing--Evidence of community standards.
In the prosecution for a violation of the provisions of this chapter, neither the prosecution nor the defense shall be required to introduce expert witness testimony concerning the obscene or harmful character of the matter which is the subject of any such prosecution. Any evidence which tends to establish contemporary community standards of appeal to prurient interest or of customary limits of candor in the description or representation of nudity, sex, or excretion, or which bears upon the question of serious literary, artistic, political, or scientific value shall be admissible when offered by either the prosecution or the defense.
Source: SL 1974, ch 165, § 5; SDCL Supp, § 22-24-49; SL 1978, ch 178, § 459.
23A-36-9. Verdict on obscenity of material seized.
The jury, or the court, if a jury trial is waived, shall render a general verdict. In the verdict that is rendered, a determination as to whether the material is obscene shall also be made.
Source: SL 1968, ch 29, § 8; SDCL Supp, § 22-24-18; SL 1974, ch 165, § 4; SDCL Supp, § 22-24-50; SL 1978, ch 178, § 460.
23A-36-10. Order for destruction of obscene material seized.
Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter in respect whereof the accused stands convicted, and which remains in the possession or under the control of the prosecuting attorney or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.
Source: SL 1968, ch 29, § 12; SDCL Supp, § 22-24-23; SL 1974, ch 165, § 16; SDCL Supp, § 22-24-51; SL 1978, ch 178, § 461.
CHAPTER 23A-37
DISPOSITION OF SEIZED PROPERTY
23A-37-1 Property subject to chapter.
23A-37-2 Safekeeping of seized property.
23A-37-3 Transfer to another court of property required as evidence.
23A-37-4 Application for return of property to person with right to possession.
23A-37-5 Time of hearing on claim for return of seized property.
23A-37-6 Notice of hearing on disposition of seized property.
23A-37-7 Money restored to owner--Gambling money paid into county treasury.
23A-37-8 Conditions for release of seized property to owner.
23A-37-9 Destruction of contraband and illegal property--Sale of articles capable of lawful use--Controlled weapons or firearms.
23A-37-10 Sale or transfer of unclaimed property.
23A-37-11 Controlled substances exempt from chapter.
23A-37-12 Chapter supplemental--Disposition as directed by court.
23A-37-13 Controlled weapons and firearms disposal.
23A-37-13.1 Money from sale to be deposited in law enforcement officers training fund.
23A-37-14 Photographing and return of property of victim seized as evidence--Admissibility of photographs.
23A-37-15 Notice to defendant of return--Motion not to release.
23A-37-1. Property subject to chapter.
For the purposes of this chapter, "seized property" means all property seized with or without a warrant by any law enforcement officer.
Source: SL 1978, ch 178, § 462.
23A-37-2. Safekeeping of seized property.
Seized property shall be safely kept and may not be taken from its custodian as long as it is required as evidence in any trial without an order of such court.
Source: SL 1978, ch 178, § 463.
23A-37-3. Transfer to another court of property required as evidence.
Where seized property is no longer required as evidence the court may transfer such property to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court.
Source: SL 1978, ch 178, § 464.
23A-37-4. Application for return of property to person with right to possession.
Any person claiming the right to possession of such property may make application for its return in the office of the clerk of courts for the county in which it is being held.
An application for the return of real property may be made within thirty days of the seizure of such real property. Absent good cause shown that the real property contains exculpatory evidence of the defendant's innocence which is incapable of being preserved by other means, or that the prosecuting attorney makes a showing that the continued seizure of the real property is necessary to the prosecution of the case, the court may order the law enforcement personnel in possession of the property to release it to the owner.
Source: SL 1978, ch 178, § 465; SL 2020, ch 103, § 1.
23A-37-5. Time of hearing on claim for return of seized property.
All claims for the return of seized property shall be set for a hearing which shall be held not less than five nor more than thirty days after the filing of the first claim.
Source: SL 1978, ch 178, § 467.
23A-37-6. Notice of hearing on disposition of seized property.
The clerk of courts shall issue a notice of a hearing containing a reasonable description of the property and the time, place, and cause of its seizure. Such notice shall be reasonably calculated to apprise the affected person of the pendency of the hearing.
Source: SL 1978, ch 178, § 466.
23A-37-7. Money restored to owner--Gambling money paid into county treasury.
Money shall be restored to the owner unless it was used in unlawful gambling or lotteries in which case it shall be paid into the county treasury pursuant to § 16-2-28.
Source: SL 1978, ch 178, § 469; SL 1982, ch 170, §§ 1 and 3.
23A-37-8. Conditions for release of seized property to owner.
The court shall release all property to its rightful owner, if:
(1) The owner is not prohibited by law from possessing such property;
(2) The property is not needed as evidence in any judicial proceeding;
(3) Satisfactory arrangements have been made to return such property to the court if subsequently needed as evidence.
Upon completion of the proceeding, the circuit court or magistrate judge shall make arrangements for the return or disposition of all property used as evidence.
Source: CCrimP 1877, §§ 539 to 541; CL 1887, §§ 7590 to 7592; RCCrimP 1903, §§ 571 to 573; RC 1919, §§ 4648 to 4650; SDC 1939 & Supp 1960, § 34.0603; SDCL § 23-16-3; SL 1978, ch 178, § 468; SL 1983, ch 189; SL 2014, ch 117, § 1.
23A-37-9. Destruction of contraband and illegal property--Sale of articles capable of lawful use--Controlled weapons or firearms.
Articles of contraband or property of an illegal nature shall be destroyed, except that any articles which are capable of lawful use may in the discretion of the court be sold and the proceeds disposed of as provided in § 23A-37-10. However, the provisions of § 23A-37-13 apply to any controlled weapon or firearm.
Source: SL 1978, ch 178, § 469; SL 1979, ch 159, § 25A; SL 1985, ch 188, § 5; SL 1999, ch 128, § 1.
23A-37-10. Sale or transfer of unclaimed property.
If there is no claimant or if the right to possession of seized property cannot be determined after a reasonable period of time, the law enforcement agency collecting such property, through an order of the court, may:
(1) Transfer ownership of the property to any governmental agency having a legitimate need for such property; or
(2) Sell the property and deliver the proceeds of the sale to the appropriate finance officer of the city, county, or state employing such law enforcement agency.
Source: SDC 1939 & Supp 1960, § 34.0604; SDCL, § 23-16-4; SL 1978, ch 178, § 470; SL 1982, ch 170, §§ 1 and 3; SL 2000, ch 113, § 1.
23A-37-11. Controlled substances exempt from chapter.
Chapter 34-20B is specifically exempted from this chapter.
Source: SL 1978, ch 178, § 471.
23A-37-12. Chapter supplemental--Disposition as directed by court.
The provisions of this chapter shall not be exclusive, but shall be supplemental to other laws on the subject. Unless otherwise provided by law, all other property shall be disposed of in such manner as the court shall direct.
Source: SL 1978, ch 178, § 471.
23A-37-13. Controlled weapons and firearms disposal.
Any controlled weapon or firearm used in violation of chapter 22-14 shall be disposed of as follows:
(1) If it is stolen, it shall be returned to the lawful owner upon proof of ownership;
(2) If it is illegal, it shall be destroyed pursuant to law; or
(3) If it is neither stolen nor illegal, it shall be delivered to the arresting agency or, at the direction of the attorney general, to the South Dakota Forensic Laboratory for scientific examination purposes, for lawful use or disposal.
In the case of a disposition pursuant to subdivision (3), the arresting agency or forensic laboratory may use, trade-in, destroy, or sell, as provided in chapter 5-24A or § 6-13-6, the controlled weapon or firearm.
Source: SL 1983, ch 188, § 2; SL 1998, ch 151, § 1; SL 1999, ch 128, § 2; SL 2006, ch 137, § 1; SL 2011, ch 2, § 131.
23A-37-13.1. Money from sale to be deposited in law enforcement officers training fund.
Any moneys derived by the South Dakota Forensic Laboratory from the sale of weapons or firearms pursuant to § 23A-37-13 shall be deposited in the law enforcement officers training fund.
Source: SL 2006, ch 137, § 2.
23A-37-14. Photographing and return of property of victim seized as evidence--Admissibility of photographs.
Any property, which is not contraband, seized or confiscated by law enforcement personnel, ostensibly for use as evidence in a criminal prosecution, shall be preserved, maintained, or stored at the expense of the county where the criminal offense occurred. If the property is not contraband and is owned by a victim of the crime being investigated, the property shall be photographed by the appropriate law enforcement personnel and returned to the victim of the crime within thirty days of completion of forensic analysis unless the prosecuting attorney deems it essential to the prosecution of the case to retain the evidence. The photographs shall accurately and correctly represent the property and are admissible evidence pursuant to article X of chapter 19-19 in any resulting criminal proceeding.
Source: SL 1985, ch 198, § 1.
23A-37-15. Notice to defendant of return--Motion not to release.
Before any property is returned to the owner pursuant to § 23A-37-14, the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant's innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.
Source: SL 1985, ch 198, § 2.
23A-38-1
(Rule 42(a)) Summary punishment of contempt in presence of court--Contents and
signature of order--Maximum punishment.
23A-38-2
(Rule 42(b)) Notice and hearing on criminal contempt out of presence of court--Disqualification of judge--Jury trial--Punishment as misdemeanor.
23A-38-3
Order to witness before grand jury to show cause against contempt.
23A-38-4
Notice of hearing on contempt by grand jury witness.
23A-38-5
Order holding grand jury witness in contempt.
23A-38-6
Counsel for indigent defendants in contempt cases.
23A-38-7
Bail pending appeal from order of confinement--Expeditious disposition of appeal.
23A-38-8
Place of confinement of person held in contempt.
23A-38-9
Subsequent punishment for contempt permitted on subsequent refusal to provide
information.
23A-38-10
Service of prisoner's sentence tolled for refusal to testify in certain proceedings--Prisoner
defined.
23A-38-1. (Rule 42(a)) Summary punishment of contempt in presence of court--Contents and signature of order--Maximum punishment.
Criminal contempt may be punished summarily if a judge or magistrate judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. An order of contempt shall recite the facts and shall be signed by the judge or magistrate judge and entered of record. Contempt prosecuted under this section shall be punishable by imprisonment of not more than thirty days in the county jail or a fine not exceeding one hundred dollars, or both.
Source: SL 1978, ch 178, § 472; SL 1979, ch 159, § 27.
23A-38-2. (Rule 42(b)) Notice and hearing on criminal contempt out of presence of court--Disqualification of judge--Jury trial--Punishment as misdemeanor.
Criminal contempt, except as provided in § 23A-38-1, shall be prosecuted after notice is given to the defendant. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice may be given orally by a judge in open court in the presence of the defendant or, on application of a prosecuting attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing on the contempt charge except with the defendant's consent. The defendant has a right to a jury trial. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. Contempt prosecuted under this section shall be punished as a Class 1 misdemeanor.
Source: SL 1978, ch 178, § 473; SL 1979, ch 159, § 28.
23A-38-3. Order to witness before grand jury to show cause against contempt.
Whenever a witness in any proceeding before a grand jury of this state refuses without just cause to comply with an order to testify or provide other information, the prosecuting attorney may apply to the court for an order directing the witness to show cause why the witness should not be held in contempt.
Source: SL 1978, ch 178, § 476.
23A-38-4. Notice of hearing on contempt by grand jury witness.
No hearing under § 23A-38-3 shall be held unless seventy-two hours' notice is given to the witness who has refused to comply with the court order, except that a witness may be given a shorter notice if the court, upon a showing of special need, so orders.
Source: SL 1978, ch 178, § 477.
23A-38-5. Order holding grand jury witness in contempt.
After submission of an application pursuant to § 23A-38-3, and a hearing, at which the witness is entitled to be represented by counsel, the court may, upon a finding that such refusal was without just cause, hold the witness in contempt as provided in § 23A-38-2.
Source: SL 1978, ch 178, § 478.
23A-38-6. Counsel for indigent defendants in contempt cases.
In any proceeding conducted under § 23A-38-1, 23A-38-2, or 23A-38-5, including all necessary appeals, counsel shall be appointed as provided in chapter 23A-40.
Source: SL 1978, ch 178, § 480.
23A-38-7. Bail pending appeal from order of confinement--Expeditious disposition of appeal.
Any person confined pursuant to § 23A-38-1 or 23A-38-2 shall be admitted to bail or released in accordance with chapter 23A-43, pending the determination of an appeal taken by him from the order of his confinement unless it affirmatively appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, and in no event more than thirty days from the filing of such appeal.
Source: SL 1978, ch 178, § 475.
23A-38-8. Place of confinement of person held in contempt.
Any confinement shall be at a suitable correctional facility within the circuit in which the sentencing court is located. Upon a showing of need or hardship the court ordering confinement may grant a request by the witness to be imprisoned at a suitable correctional facility near the place of residence or employment of the witness, or the witness' family or relatives or the attorney of the witness.
Source: SL 1978, ch 178, § 474.
23A-38-9. Subsequent punishment for contempt permitted on subsequent refusal to provide information.
A person fined or imprisoned under § 23A-38-2 or 23A-38-5 for refusal to testify or provide other information concerning any transaction, set of transactions, event, or events in a proceeding before a court or grand jury of this state, may be again fined, imprisoned, or both, under § 23A-38-2 or 23A-38-5 for a subsequent refusal to testify or provide other information concerning the same transaction, set of transactions, event, or events.
Source: SL 1978, ch 178, § 479.
23A-38-10. Service of prisoner's sentence tolled for refusal to testify in certain proceedings--Prisoner defined.
If a prisoner is confined for contempt pursuant to § 23A-38-1, 23A-38-2, or 23A-38-5 for refusal, without just cause, to comply with an order to testify or provide other information in a proceeding before a court or grand jury, the period during which the prisoner remains in contempt may not be deemed service of the prisoner's sentence. The term "prisoner" as used in this section includes any person incarcerated for the purpose of serving a sentence after conviction of a criminal offense.
Source: SL 1988, ch 195.
23A-39-1
(Rule 43 (a)) Presence required at all times except as provided.
23A-39-2
(Rule 43(b)) Voluntary absence of defendant from trial--Conduct justifying exclusion.
23A-39-3
(Rule 43(c)) Corporation appearing by counsel--Presence not required in misdemeanor
prosecutions--Hearing to reduce sentence.
23A-39-4
Bench warrant for defendant failing to appear after release on bail--Costs assessed against
defendant.
23A-39-5
Service of bench warrant.
23A-39-1. (Rule 43 (a)) Presence required at all times except as provided.
A defendant shall be present at his arraignment, at the time of his plea, at every stage of his trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by §§ 23A-39-2 and 23A-39-3.
Source: SDC 1939 & Supp 1960, §§ 34.3501, 34.3602; SDCL, §§ 23-35-2, 23-42-1; SL 1978, ch 178, § 485.
23A-39-2. (Rule 43(b)) Voluntary absence of defendant from trial--Conduct justifying exclusion.
The further progress of a trial to and including the return of a verdict shall not be prevented whenever a defendant who was initially present:
(1) In noncapital cases, voluntarily absents himself after the trial has commenced; or
(2) Engages in conduct which justifies his being excluded from the courtroom.
Source: SL 1978, ch 178, § 486.
23A-39-3. (Rule 43(c)) Corporation appearing by counsel--Presence not required in misdemeanor prosecutions--Hearing to reduce sentence.
A defendant need not be present in the following situations:
(1) A corporation may appear by counsel for all purposes;
(2) In prosecutions for misdemeanors, a court may permit arraignment, the preliminary hearing, plea, trial, and imposition of sentence in the defendant's absence. If, however, the presence of the defendant is necessary for the purpose of identification, a court may, upon application by the prosecuting attorney, order his personal attendance at the trial; or
(3) The defendant's presence is not required at any hearing to reduce a sentence pursuant to § 23A-31-1.
Source: SDC 1939 & Supp 1960, §§ 34.3501, 34.3602, 34.3701; SDCL, §§ 23-35-2, 23-42-2, 23-48-6; SL 1978, ch 178, § 487; SL 1979, ch 159, § 29.
23A-39-4. Bench warrant for defendant failing to appear after release on bail--Costs assessed against defendant.
If the defendant has been released on bail in accordance with any provision of chapter 23A-43 and does not appear when so ordered by the court, the court, in addition to the forfeiture of bail, may direct the clerk of the court to issue a bench warrant for his arrest. The clerk, on application of the prosecuting attorney, may, at any time after the order, whether the court be sitting or not, issue a bench warrant, and may assess costs of such issuance against the defendant in the sum of ten dollars.
Source: SDC 1939 & Supp 1960, § 34.3702; SDCL, § 23-48-8; SL 1978, ch 178, § 488; SL 1987, ch 181, § 1.
23A-39-5. Service of bench warrant.
The bench warrant issued pursuant to § 23A-39-4 may be served in any county, in the same manner as a warrant of arrest.
Source: SDC 1939 & Supp 1960, § 34.3702; SDCL, § 23-48-10; SL 1978, ch 178, § 489.
CHAPTER 23A-40
(RULE 44) COUNSEL FOR INDIGENT DEFENDANT
23A-40-1 23A-40-1, 23A-40-2. Reserved
23A-40-3 23A-40-3 to 23A-40-5. Repealed by SL 1979, ch 159, §§ 30 to 32
23A-40-6 Arrest or detention without formal charge--Assignment of counsel--Certification of indigency required.
23A-40-6.1 Assigned counsel not required where defendant not deprived of liberty--Statement of judge required.
23A-40-7 Representation provided by county or municipality for indigents detained without formal charge.
23A-40-8 Compensation of assigned counsel.
23A-40-9 Compensation of assigned counsel for services after judgment and conviction.
23A-40-10 Funds available from or on behalf of defendant--Order for reimbursement--Applicability--Credit against lien.
23A-40-11 Lien created against property of person for whom counsel provided--Limitation.
23A-40-12 Public defender's lien.
23A-40-13 Statement of claim filed--Enforceability of lien.
23A-40-14 Enforcement or disposition of lien.
23A-40-15 Foreclosure prohibited upon homestead or exempt personal property.
23A-40-16 Correction of mistake in lien record at request of adversely affected person.
23A-40-17 Court appointed attorney and public defender payment fund established.
23A-40-18 23A-40-18, 23A-40-19. Repealed by SL 1988, ch 189, §§ 4, 5
23A-40-20 Annual distribution of moneys in fund--Determination of pro rata payments to counties.
23A-40-21 Training on mental illness and services.
23A-40-6. Arrest or detention without formal charge--Assignment of counsel--Certification of indigency required.
In any criminal investigation or in any criminal action or action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to revoke a parole, if it is satisfactorily shown that the defendant or detained person does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation, the judge of the circuit court or the magistrate shall, upon the request of the defendant, assign, at any time following arrest or commencement of detention without formal charges, counsel for his representation, who shall appear for and defend the accused upon the charge against him, or take other proper legal action to protect the rights of the person detained without formal charge.
In each case, the indigent person, subject to the penalties for perjury, shall certify in writing or by other record such material factors relating to his ability to pay as the court prescribes.
Source: SDC 1939, §§ 34.1901, 34.3506; SL 1957, ch 182; SDCL, §§ 23-2-1, 23-35-11; SL 1968, ch 147; SL 1969, ch 155; SL 1978, ch 178, § 492; SDCL Supp, § 23A-40-3; SL 1979, ch 159, § 33; SL 1983, ch 190, § 1.
23A-40-6.1. Assigned counsel not required where defendant not deprived of liberty--Statement of judge required.
At the time of arraignment for a violation of a Class 2 misdemeanor or a violation of an ordinance or at the time of the hearing for a petty offense, the circuit court judge or magistrate may conclude and state on the record, in the defendant's presence, that the defendant will not be deprived of his liberty if he is convicted. The circuit court judge's or magistrate's statement that the defendant will not be deprived of his liberty if he is convicted shall be made before the defendant enters his plea. If the defendant is not in custody and if the court has concluded that he will not be deprived of his liberty if he is convicted, an indigent defendant charged with violating a Class 2 misdemeanor, an ordinance not having a penalty greater than a Class 2 misdemeanor or a petty offense, is not entitled to court assigned counsel.
Source: SL 1983, ch 190, § 2.
23A-40-7. Representation provided by county or municipality for indigents detained without formal charge.
The board of county commissioners of each county and the governing body of any municipality shall provide for the representation of indigent persons described in § 23A-40-6. The board or body shall provide this representation by any or all of the following:
(1) Establishing and maintaining an office of a public defender;
(2) Arranging with the courts in the county to appoint attorneys on an equitable basis through a systematic, coordinated plan; or
(3) Contracting with any attorney licensed to practice law in this state.
In those counties which have established an office of public defender, any proceedings after judgment may be assigned to the public defender. The provisions of chapter 5-18A do not apply to this section.
Source: SL 1979, ch 159, §§ 34, 35; SL 1998, ch 152, § 1; SL 2011, ch 2, § 132.
23A-40-8. Compensation of assigned counsel.
Except as provided below, counsel assigned pursuant to § 23A-40-6 and subdivision 23A-40-7(2) shall, after the disposition of the cause, be paid by the county in which the action is brought, or, in case of a parole revocation, by the county from which the inmate was sentenced, a reasonable and just compensation for the services and for necessary expenses and costs incident to the proceedings in an amount to be fixed by a judge of the circuit court or a magistrate judge within guidelines established by the presiding judge of the circuit court.
If the cause originated from a criminal offense committed by an inmate under confinement in a facility operated by the Department of Corrections, the Department of Corrections must, after the disposition of the cause, pay counsel assigned pursuant to § 23A-40-6, a reasonable and just compensation for the services and for necessary expenses and costs incident to the proceedings in an amount to be fixed by a judge of the circuit court or a magistrate judge within guidelines established by the presiding judge of the circuit court.
Source: SDC 1939, § 34.1901; SL 1957, ch 182; SDCL, §§ 23-2-2, 23-2-3; SL 1968, ch 147; SL 1969, ch 155; SL 1978, ch 178, § 493; SDCL Supp, § 23A-40-4; SL 1979, ch 159, § 34; SL 1983, ch 191, § 1; SL 2024, ch 94, § 2.
23A-40-9. Compensation of assigned counsel for services after judgment and conviction.
If proceedings after judgment and conviction are taken, by motion in arrest of judgment, motion for a new trial or any presentence or post-sentence proceedings, or an appeal to the Supreme Court, an allowance for a sum as may be reasonable and just for the services rendered and for necessary expenses and cost incident to the proceedings shall be allowed to counsel assigned by the court pursuant to § 23A-40-6 and subdivision 23A-40-7(2), in an amount to be set by a judge of the circuit court or a magistrate judge within guidelines established by the presiding judge of the circuit court.
Source: SDC 1939, § 34.1901; SL 1957, ch 182; SDCL, §§ 23-2-2, 23-2-3; SL 1968, ch 147; SL 1969, ch 155; SL 1978, ch 178, § 493; SDCL Supp, § 23A-40-4; SL 1979, ch 159, § 35; SL 1983, ch 191, § 2.
23A-40-10. Funds available from or on behalf of defendant--Order for reimbursement--Applicability--Credit against lien.
If the court finds that funds are available for payment from or on behalf of a defendant to carry out, in whole or in part, the provisions of this chapter, the court may order that the funds be paid, as court costs or as a condition of probation, to the court for deposit with the state, county, or municipal treasurer, to be placed in the state, county, or municipal general fund or in the public defender fund in those counties establishing the office pursuant to subdivision 23A-40-7(1) as a reimbursement to the county or municipality to carry out the provisions of this section. The court may also order payment to be made in the form of installments or wage assignments, in amounts set by a judge of the circuit court or a magistrate judge, either during the time a charge is pending or after the disposition of the charge, regardless of whether the defendant has been acquitted or the case has been dismissed by the prosecution or by order of the court. The provisions of this section also apply to persons who have had counsel appointed under chapters 26-7A, 26-8A, 26-8B, and 26-8C. The reimbursement is a credit against any lien created by the provisions of this chapter against the property of the defendant.
Source: SL 1979, ch 159, § 40; SL 1983, ch 192, § 1; SL 1997, ch 146, § 1; SL 2001, ch 123, § 1; SL 2024, ch 94, § 3.
23A-40-11. Lien created against property of person for whom counsel provided--Limitation.
A lien, enforceable as provided by this chapter, upon all the property, both real and personal, of any person, including the parents of a minor child, for whom legal counsel or a public defender has been appointed under the provisions of § 23A-40-6, subdivisions 23A-40-7(2) and (3), or § 26-7A-31 may be filed. The services rendered and expenses incurred are a claim against the person and that person's estate, enforceable according to law in an amount to be determined by a judge of the circuit court or a magistrate judge and paid by the county or municipality chargeable for them. A lien on the parents of a minor child pursuant to this section may not exceed one thousand five hundred dollars plus an amount equal to any taxable court costs.
Source: SL 1969, ch 156, § 1; SDCL Supp, § 23-2-3.1; SL 1978 ch 178, § 494; SDCL Supp, § 23A-40-5; SL 1979, ch 159, § 36; SL 1983, ch 191, § 3; SL 1983, ch 192, § 2; SL 1989, ch 227, § 2; SL 1991, ch 217, § 167; SL 1998, ch 152, § 2; SL 2002, ch 122, § 1.
23A-40-12. Public defender's lien.
If the legal services have been provided by a public defender or an attorney with whom a contract has been entered into to provide services in lieu of a public defender, a public defender's lien shall be set by a judge of the circuit court or magistrate judge at a reasonable amount for the services rendered.
Source: SL 1969, ch 156, § 1; SDCL Supp, § 23-2-3.1; SL 1978, ch 178, § 494; SDCL Supp, § 23A-40-5; SL 1979, ch 159, § 36; SL 1983, ch 191, § 4; SL 1998, ch 152, § 3.
23A-40-13. Statement of claim filed--Enforceability of lien.
Immediately upon payment by the chargeable county or municipality, or upon the setting of the public defender's lien by a circuit court judge or magistrate judge, a statement of claim showing the name and residence of the recipient shall be filed by the county auditor or municipal, finance officer in the office of the register of deeds in the county where the recipient resides. A certified copy of the lien may be filed in any other county in which the recipient may have or may acquire an interest in real or personal property. The lien is enforceable, until satisfied or compromised.
Source: SL 1979, ch 159, § 37; SL 1980, ch 182; SL 1983, ch 191, § 5; SL 1983, ch 192, § 3.
23A-40-14. Enforcement or disposition of lien.
The board of county commissioners of the county or the governing board of the municipality filing the lien may enforce, foreclose, satisfy, compromise, settle, subordinate, release, or otherwise dispose of the lien.
Source: SL 1979, ch 159, § 38; SL 1983, ch 192, § 4.
23A-40-15. Foreclosure prohibited upon homestead or exempt personal property.
No lien provided for in this chapter shall be foreclosed upon the homestead, as defined by chapter 43-31, of the recipient or his family, nor upon any personal property which is exempt from process under chapter 43-45.
Source: SL 1979, ch 159, § 39.
23A-40-16. Correction of mistake in lien record at request of adversely affected person.
If, in the record of a lien made under the provisions of this chapter, the name of the person or persons for whose benefit any payment was made, or the name of a person or persons against whose property a lien may appear to have been created, is shown or stated to have been made by mistake or incorrectly or in such manner as not to identify easily the owner or owners of property, or the amount of such lien is incorrectly stated or recorded, any person whose interests are adversely affected thereby may apply to the board of county commissioners for correction of the record to conform to the facts. The board may grant the relief sought and direct the correction of the record accordingly.
Source: SL 1979, ch 159, § 38.
23A-40-17. Court appointed attorney and public defender payment fund established.
There is hereby created in the Office of the State Treasurer a court appointed attorney and public defender payment fund.
Source: SL 1982, ch 186, § 6.
23A-40-20. Annual distribution of moneys in fund--Determination of pro rata payments to counties.
All moneys in the court appointed attorney and public defender payment fund shall be annually distributed by the state treasurer to the counties on a pro rata basis. The state treasurer shall, within sixty days of the end of the fiscal year, determine and verify from receipts and expenditure records the total expenditures by all counties in the state for court appointed attorneys and public defender offices. He shall then establish a percentage ratio between moneys collected in the fund for the past fiscal year and the total expenditures by counties for court appointed attorneys and public defender offices. That percentage ratio shall then be applied to each county's gross expenditure for court appointed attorneys and public defender offices to determine its respective payment from the fund.
Source: SL 1982, ch 186, § 9; SL 1991, ch 197, § 4.
23A-40-21. Training on mental illness and services.
Each court-appointed defense attorney shall receive training on mental illness, available mental health services, eligibility criteria and referral processes, and forensic evaluations.
Source: SL 2017, ch 109, § 25, eff. July 1, 2018.
23A-41-1
(Rule 45(a)) Days included and excluded in computing time--Adjustment for weekends
and holidays.
23A-41-2
(Rule 45(b)) Extension of time by court--Permitting action after expiration of period--Exceptions.
23A-41-3
(Rule 45(c)) Reserved.
23A-41-4
(Rule 45(d)) Minimum time between notice and hearing on motion--Service of affidavits
supporting and opposing motions.
23A-41-5
(Rule 45 (e)) Time added when papers served by mail.
23A-41-1. (Rule 45(a)) Days included and excluded in computing time--Adjustment for weekends and holidays.
In computing any period of time, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When a period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this section, a "legal holiday" is any day designated as a holiday in § 1-5-1.
Source: SL 1978, ch 178, § 495; SL 2010, ch 253 (Supreme Court Rule 09-09), eff. Sept. 24, 2009.
23A-41-2. (Rule 45(b)) Extension of time by court--Permitting action after expiration of period--Exceptions.
When an act is required or allowed to be done at or within a specified time, a court for cause shown may at any time in its discretion:
(1) With or without motion or notice, order the period extended if a request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or
(2) Upon motion made after the expiration of the specified period, permit the act to be done if the failure to act was the result of excusable neglect.
However, a court may not extend the time for taking an action under chapter 23A-23, chapter 23A-29, chapter 23A-30, or § 23A-31-1, except to the extent and under the conditions stated in those chapters and section.
Source: SL 1978, ch 178, § 496.
23A-41-4. (Rule 45(d)) Minimum time between notice and hearing on motion--Service of affidavits supporting and opposing motions.
A written motion, other than one which may be heard ex parte, and notice of the hearing thereon must be served at least five days before the time specified for the hearing unless a different period is fixed by rule or order of court. For cause shown such an order may be made on ex parte application. When a motion is supported by an affidavit, the affidavit must be served with the motion; and opposing affidavits must be served at least one day before the hearing unless the court permits them to be served at a later time.
Source: SL 1978, ch 178, § 498.
23A-41-5. (Rule 45 (e)) Time added when papers served by mail.
Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, three days shall be added to the prescribed period.
Source: SL 1978, ch 178, § 499.
CHAPTER 23A-42
LIMITATION OF CRIMINAL PROSECUTIONS
23A-42-1 No limitation on prosecution for Class A, Class B, or Class C felonies.
23A-42-2 Seven-year limitation on other prosecutions.
23A-42-3 Limitation period on forgery or theft commences at time of discovery--Proof as to failure of discovery.
23A-42-4 Prosecution commenced by filing of complaint, information or indictment.
23A-42-5 Tolling of limitation period while defendant out of state.
23A-42-6 No limitation during time of mental incompetence.
23A-42-1. No limitation on prosecution for Class A, Class B, or Class C felonies.
There is no limitation on the time within which a prosecution for Class A, Class B, or Class C felony must be commenced.
Source: SDC 1939 & Supp 1960, § 34.0701; SDCL, § 23-8-1; SL 1978, ch 178, § 500; SL 1981, ch 186, § 2; SL 2005, ch 120, § 149.
23A-42-2. Seven-year limitation on other prosecutions.
In all other prosecutions for a public offense and all proceedings of a quasi-criminal or penal nature, including the forfeiture of existing rights, the proceedings shall be commenced within seven years after the commission of the offense or crime which is the basis of the prosecution or proceedings, except as provided in § 23A-42-3.
Source: SDC 1939 & Supp 1960, § 34.0703; SDCL, § 23-8-3; SL 1975, ch 279, § 2; SL 1978, ch 178, § 501.
23A-42-3. Limitation period on forgery or theft commences at time of discovery--Proof as to failure of discovery.
When the defendant is charged with forgery or theft, an action described in § 23A-42-2 shall be commenced at any time within seven years after the discovery of the crime. The failure of discovery, if more than seven years has elapsed at the time of prosecution, shall in all cases be pleaded and proven in the same manner as other elements of the offense.
Source: SL 1927, ch 91; SDC 1939 & Supp 1960, § 34.0703; SDCL, § 23-8-4; SL 1978, ch 178, § 502.
23A-42-4. Prosecution commenced by filing of complaint, information or indictment.
All actions referred to in §§ 23A-42-1 to 23A-42-3, inclusive, shall be deemed commenced by the filing of a complaint, information or indictment with any committing magistrate or clerk of any court having jurisdiction of the offense.
Source: SL 1927, ch 91; SDC 1939 & Supp 1960, § 34.0703; SDCL, § 23-8-5; SL 1978, ch 178, § 503.
23A-42-5. Tolling of limitation period while defendant out of state.
If when or after the offense is committed the defendant is out of the state, the indictment, information, or complaint may be filed within the period prescribed by §§ 23A-42-1 to 23A-42-3, inclusive, after his coming within the state, and no time during which the defendant is not an inhabitant within the state is part of the limitation.
Source: SDC 1939 & Supp 1960, § 34.0704; SDCL, § 23-8-6; SL 1978, ch 178, § 504.
23A-42-6. No limitation during time of mental incompetence.
No time during which the defendant is determined to be mentally incompetent to proceed pursuant to chapter 23A-10A is part of any limitation pursuant to this chapter.
Source: SL 2021, ch 107, § 3.
CHAPTER 23A-43
BAIL
23A-43-1 23A-43-1. (Rule 46(a)) Reserved
23A-43-2 Release of defendant on personal recognizance or unsecured bond--Exceptions.
23A-43-2.1 Defendants charged with offense punishable by death.
23A-43-3 Additional conditions of release imposed when necessary to assure appearance for trial.
23A-43-3.1 Report of noncompliance with mental health treatment.
23A-43-3.2 Rules regarding noncompliance with mental health treatment.
23A-43-4 Factors considered in determining conditions of release to be imposed.
23A-43-4.1 23A-43-4.1, 23A-43-4.2. Transferred to §§ 25-10-40, 25-10-41.
23A-43-5 (Rule 46(b)) Conditions of release and bond continued unless ordered increased--Statement of reasons for adding conditions.
23A-43-6 Order stating conditions of release--Advice to defendant as to results of violation.
23A-43-7 Amendment of order to impose additional or different conditions of release--Review on inability of defendant to meet additional conditions.
23A-43-8 Review of conditions when defendant unable to meet conditions for release--Statement by magistrate of reasons for conditions.
23A-43-9 Review of conditions requiring return to custody after specified hours--Statement by magistrate of reasons for requirement.
23A-43-10 Review by another magistrate when committing magistrate unavailable.
23A-43-11 Continuation of conditions to insure subjection to another court where charges pending--Transmittal of papers to other jurisdiction.
23A-43-12 Information considered in bail proceedings need not conform to rules of evidence.
23A-43-13 Disposition of cases by forfeiture of collateral not prohibited.
23A-43-14 Motion for amendment by circuit judge of conditions of release.
23A-43-15 Appeal to Supreme Court for amendment of conditions of release--Disposition by court.
23A-43-16 Release pending judgment or appeal--Criteria considered--Right to judicial review of conditions.
23A-43-17 (Rule 46(c)) Burden of proof as to risk of flight or danger.
23A-43-18 Conditions of release imposed on material witness--Release after deposition taken.
23A-43-19 Order for commitment or better security from person about to abscond--Order of arrest.
23A-43-20 (Rule 46(d)) Justification by sureties--Findings as to financial responsibility--Attorney not to be surety.
23A-43-21 (Rule 46(e)(1)) Forfeiture of bond and revocation of release on breach of condition--Warrant for arrest.
23A-43-22 (Rule 46(e)(2)) Setting aside forfeiture of bail.
23A-43-23 (Rule 46(e)(3)) Default judgment on forfeiture--Enforcement of liability on motion--Notice of motion.
23A-43-24 (Rule 46(e)(4)) Remission of bond after entry of judgment.
23A-43-25 Proceeding against bail after forfeiture of undertaking--Payment into county treasury of money deposit forfeited--Bonds for traffic or other misdemeanor violations excluded.
23A-43-25.1 Reinstated bond or undertaking paid to officer with whom originally deposited.
23A-43-26 (Rule 46(f)) Exoneration of obligors and release of bail--Cash deposit or surrender of defendant exonerating.
23A-43-27 Exoneration of bail on commitment under sentence.
23A-43-28 Exoneration of bail on commitment as mentally ill.
23A-43-29 Arrest of defendant by surety on violation of conditions--Recommitment and discharge of surety.
23A-43-30 (Rule 46(g)) Court supervision to eliminate unnecessary detention.
23A-43-31 Failure to appear after release as forfeiture of security--Felony or misdemeanor.
23A-43-32 Contempt powers of courts unimpaired.
23A-43-2. Release of defendant on personal recognizance or unsecured bond--Exceptions.
Except for a defendant charged with an offense punishable by death or a defendant who is currently released on personal recognizance bond, a defendant shall, at his appearance before a committing magistrate or court be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the committing magistrate or court, unless the magistrate or court determines in the exercise of his discretion, that such a release will not reasonably assure the appearance of the defendant as required or that the defendant may pose a danger to any other person or to the community.
Source: SL 1978, ch 178, § 506; SL 1980, ch 183, § 1; SL 1982, ch 187.
23A-43-2.1. Defendants charged with offense punishable by death.
A person who is charged with an offense punishable by death shall be treated in accordance with the provisions of § 23A-43-3, unless the committing magistrate has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, the person may be ordered detained.
Source: SL 1980, ch 183, § 2.
23A-43-3. Additional conditions of release imposed when necessary to assure appearance for trial.
If a determination is made that a release pursuant to § 23A-43-2 will not reasonably assure the appearance of the defendant as required, the committing magistrate or court shall, either in lieu of or in addition to the methods of release described in § 23A-43-2, impose the first of the following conditions of release which will reasonably assure the appearance of the defendant for trial or, if no single condition gives that assurance, any combination of the following conditions:
(1) Place the defendant in the custody of a designated person or organization agreeing to supervise him;
(2) Place restrictions on the travel, association, or place of abode of the defendant during the period of release;
(3) Require the defendant to complete a mental health assessment by a specified date and follow any treatment recommendations. The court shall consider available funding sources before imposing this condition of release;
(4) Require an appearance bond in a specified amount. The bond shall be executed by depositing with the clerk of the court, in cash or other security, as directed, a sum not to exceed ten percent of the amount of the bond. The deposit shall be returned upon the performance of the conditions of release;
(5) Require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu of a bail bond; or
(6) Impose any other condition reasonably necessary to assure the defendant's appearance as required, including a condition requiring that the defendant return to custody after specified hours.
Source: SL 1978, ch 178, § 506; SL 2017, ch 109, § 9.
23A-43-3.1. Report of noncompliance with mental health treatment.
If a court has imposed conditions of release that require a defendant to follow any treatment recommendations pursuant to subdivision 23A-43-3(3), the provider of those treatment services shall report any noncompliance to the court that has imposed the condition of release.
Source: SL 2017, ch 109, § 10.
23A-43-3.2. Rules regarding noncompliance with mental health treatment.
The Supreme Court may establish rules, pursuant to § 16-3-1, regarding the definition of noncompliance in § 23A-43-3.1 and how noncompliance may be reported to the court.
Source: SL 2017, ch 109, § 11.
23A-43-4. Factors considered in determining conditions of release to be imposed.
In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the results of any mental health assessment, the length of the defendant's residence in the community, the defendant's record of convictions, the defendant's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that the defendant will flee or pose a danger to any person or to the community.
Source: SL 1978, ch 178, § 509; SL 1980, ch 179, § 3; SL 2017, ch 109, § 12.
23A-43-5. (Rule 46(b)) Conditions of release and bond continued unless ordered increased--Statement of reasons for adding conditions.
A defendant released before trial shall continue on release until a plea or verdict of guilty has been entered, under the same terms and conditions as were previously imposed unless the committing magistrate or court determines that other terms and conditions or termination of his release are necessary to insure the orderly and expeditious progress of the trial. After conviction but prior to the entry of judgment, the defendant may be released pursuant to § 23A-43-16. If a person has been arrested on a complaint and is indicted before an information has been filed on the complaint, any bond posted from the original arrest shall continue and be the bond for the same offense, unless otherwise ordered by the court. If the terms and conditions are increased in severity or if the termination of release is ordered, the committing magistrate or court shall state the reasons therefor on the record.
Source: SL 1978, ch 178, § 507; SL 1985, ch 200, § 1.
23A-43-6. Order stating conditions of release--Advice to defendant as to results of violation.
A committing magistrate or court authorizing the release of a defendant under § 23A-43-2, 23A-43-3, or 23A-43-5 shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform the defendant of the penalties for a violation of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.
Source: SL 1978, ch 178, § 510.
23A-43-7. Amendment of order to impose additional or different conditions of release--Review on inability of defendant to meet additional conditions.
A committing magistrate or court ordering the release of a defendant on any condition specified in § 23A-43-2 or 23A-43-3 may at any time amend his or its order to impose additional or different conditions of release. If, however, the imposition of such additional or different conditions results in the detention of the defendant as a result of his inability to meet such conditions or in the release of the defendant on a condition requiring him to return to custody after specified hours, the provisions of §§ 23A-43-8 to 23A-43-10, inclusive, shall apply.
Source: SL 1978, ch 178, § 512.
23A-43-8. Review of conditions when defendant unable to meet conditions for release--Statement by magistrate of reasons for conditions.
A defendant for whom conditions of release are imposed and who after twenty-four hours from the time of the release hearing, continues to be detained as a result of his inability to meet the conditions of release, may, upon application, have the conditions reviewed by the committing magistrate, the court that imposed them, or a circuit court having jurisdiction of the defendant and the offense charged. Unless the conditions of release are amended and the person is thereupon released, the committing magistrate or court shall set forth in writing the reasons for requiring the conditions imposed.
Source: SL 1978, ch 178, § 511; SL 1983, ch 193.
23A-43-9. Review of conditions requiring return to custody after specified hours--Statement by magistrate of reasons for requirement.
A defendant who is ordered released on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to a review by the committing magistrate or court that imposed the condition. Unless the requirement is removed and the person is thereupon released on another condition, the committing magistrate or court shall set forth in writing the reasons for continuing the requirement.
Source: SL 1978, ch 178, § 511.
23A-43-10. Review by another magistrate when committing magistrate unavailable.
If the magistrate or court that imposed the conditions of release is not available for review pursuant to § 23A-43-8 or 23A-43-9, any other committing magistrate or court in the circuit may review such conditions.
Source: SL 1978, ch 178, § 511.
23A-43-11. Continuation of conditions to insure subjection to another court where charges pending--Transmittal of papers to other jurisdiction.
If at any time during the course of a prosecution it appears that a defendant who has been conditionally released is not subject to the jurisdiction of the court imposing such conditions, and it appears that he is subject to prosecution in another court, the committing magistrate or court that imposed such conditions shall, following the procedure specified in §§ 23A-43-2 and 23A-43-3, continue such conditions of release, or alter them if necessary, in such manner as will insure that he, within such time as the committing magistrate or court shall specify, will render himself amenable to a warrant for his arrest from the proper court, and if not sooner arrested thereon, will go to the office of the sheriff of the county where the prosecution had been initiated, at a time specified in the order, to surrender himself upon the warrant if issued. The clerk of the court imposing such continued or altered conditions of release shall within ten days transmit all papers in the action filed with him, including bail if posted, to the prosecuting attorney of the proper jurisdiction.
Source: SL 1978, ch 178, § 508.
23A-43-12. Information considered in bail proceedings need not conform to rules of evidence.
Information stated in, or offered in connection with, any order entered pursuant to §§ 23A-43-1 to 23A-43-13, inclusive, need not conform to the rules pertaining to the admissibility of evidence in a court of law.
Source: SL 1978, ch 178, § 513.
23A-43-13. Disposition of cases by forfeiture of collateral not prohibited.
Nothing contained in §§ 23A-43-1 to 23A-43-12, inclusive, shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where such disposition is authorized by the court.
Source: SL 1978, ch 178, § 514.
23A-43-14. Motion for amendment by circuit judge of conditions of release.
A defendant who is detained, or whose release on a condition requiring him to return to custody after specified hours is continued, after review of his application pursuant to § 23A-43-7, 23A-43-8, 23A-43-9, or 23A-43-10 by a committing magistrate, other than a judge of the court having original jurisdiction over the offense with which he is charged or a justice of the Supreme Court, may move the circuit court having original jurisdiction over the offense with which he is charged to amend the order.
Source: SL 1978, ch 178, § 515.
23A-43-15. Appeal to Supreme Court for amendment of conditions of release--Disposition by court.
In any case in which a defendant is detained after a court denies a motion under § 23A-43-14 to amend an order imposing conditions of release, or after conditions of release have been imposed or amended by a judge of the court having original jurisdiction over the offense charged, an appeal may be taken to the Supreme Court. Any order so appealed shall be affirmed if it is supported by the proceedings below. If the order is not so supported, the Supreme Court may remand the case for a further hearing, or may, with or without additional evidence, order the defendant released pursuant to §§ 23A-43-2 and 23A-43-3.
Source: SL 1978, ch 178, § 516.
23A-43-16. Release pending judgment or appeal--Criteria considered--Right to judicial review of conditions.
On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment, pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of §§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected.
Source: SDC 1939 & Supp 1960, § 34.1803; SDCL, § 23-26-4; SL 1978, ch 178, § 517; SL 1985, ch 200, § 2.
23A-43-17. (Rule 46(c)) Burden of proof as to risk of flight or danger.
On a motion pursuant to § 23A-43-16, the burden of establishing that a defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
Source: SL 1978, ch 178, § 518; SL 1985, ch 200, § 3.
23A-43-18. Conditions of release imposed on material witness--Release after deposition taken.
If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpoena, a committing magistrate or court shall impose conditions of release upon him pursuant to §§ 23A-43-2 and 23A-43-3. No material witness shall be detained because of his inability to comply with any condition of release if his testimony can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice, but his release may be delayed for a reasonable period of time until his deposition can be taken pursuant to chapter 23A-12.
Source: SDC 1939 & Supp 1960, § 34.1410; SDCL, §§ 23-27-22, 23-27-23; SL 1978, ch 178, § 519.
23A-43-19. Order for commitment or better security from person about to abscond--Order of arrest.
When proof is made to any committing magistrate that a person previously released on the execution of an appearance bail bond with one or more sureties is about to abscond, and that his bail is insufficient, the committing magistrate shall require such person to give better security or, for default thereof, cause him to be committed. An order for his arrest may be endorsed on the former commitment, or a new warrant therefor may be issued, by such committing magistrate, setting forth the cause thereof.
Source: SDC 1939 & Supp 1960, § 34.1807; SDCL, § 23-26-8; SL 1978, ch 178, § 520.
23A-43-20. (Rule 46(d)) Justification by sureties--Findings as to financial responsibility--Attorney not to be surety.
Every surety, except a corporate surety authorized by chapter 58-21, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances on it, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. No bond shall be approved unless the surety or sureties, in the opinion of the judge, or magistrate authorized to admit to bail, are financially responsible in at least the amount of the bond. No practicing attorney shall be a surety on any bond.
Source: CCrimP 1877, § 555; CL 1887, § 7607; RCCrimP 1903, § 588; RC 1919, § 4598; SDC 1939 & Supp 1960, § 34.1805; SDCL, § 23-26-6; SL 1978, ch 178, § 521.
23A-43-21. (Rule 46(e)(1)) Forfeiture of bond and revocation of release on breach of condition--Warrant for arrest.
Upon a showing that there has been a material breach of a condition of release without good cause, the court shall declare a forfeiture of the bond, if any, and shall enter an order revoking the conditions of release. If the defendant is not in custody, the court shall direct the clerk to issue a warrant for the defendant's arrest. The defendant shall remain in custody until discharged by due course of law.
Source: SDC 1939 & Supp 1960, § 34.1809; SDCL, § 23-26-11; SL 1978, ch 178, § 522; SL 1979, ch 159, § 41.
23A-43-22. (Rule 46(e)(2)) Setting aside forfeiture of bail.
A court may direct that a forfeiture be set aside, upon such conditions as it may impose, if it appears that justice does not require enforcement of the forfeiture.
Source: CCrimP 1877, § 559; CL 1887, § 7611; RCCrimP 1903, § 592; RC 1919, § 4602; SDC 1939 & Supp 1960, § 34.1809; SDCL, § 23-26-12; SL 1978, ch 178, § 523.
23A-43-23. (Rule 46(e)(3)) Default judgment on forfeiture--Enforcement of liability on motion--Notice of motion.
When a forfeiture has not been set aside, a court shall on motion enter a judgment of default, and execution may issue thereon. By entering into a bond the obligors submit themselves to the jurisdiction of the circuit court and irrevocably appoint the clerk of the court of the county as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors at their last known addresses.
Source: SL 1978, ch 178, § 524.
23A-43-24. (Rule 46(e)(4)) Remission of bond after entry of judgment.
After entry of such judgment, a court may remit the bond in whole or in part under such conditions as it may impose, if it appears that justice does not require the enforcement of the forfeiture.
Source: SL 1978, ch 178, § 526.
23A-43-25. Proceeding against bail after forfeiture of undertaking--Payment into county treasury of money deposit forfeited--Bonds for traffic or other misdemeanor violations excluded.
After the forfeiture of recognizance, bond or undertaking of bail, including an appearance bond, the prosecuting attorney shall proceed, with all due diligence, by action against the bail upon the instrument so forfeited. If money deposited instead of bail, including an appearance bond, is forfeited, the clerk of the court or other officer with whom it is deposited, shall monthly pay the money deposited to the county treasurer who shall deposit it in the county treasury. This section is not to be construed to include bonds assessed for violations of traffic or other misdemeanor violations included on an approved fine and bond schedule adopted by a circuit court for use by lay magistrates and law enforcement officials for purposes of levying a fine and costs to permit a violator to submit a power of attorney in lieu of a court appearance. Bonds which have been submitted in payment of such violations, accompanied by either a signed or unsigned power of attorney, shall be deposited in accordance with state laws governing the deposit of such fines, liquidated court costs and surcharges.
Source: SDC 1939 & Supp 1960, § 34.1809; SDCL, § 23-26-13; SL 1974, ch 158, § 5; SL 1978, ch 173, § 1; SL 1978, ch 178, § 525; SL 1979, ch 159, § 42; SL 1982, ch 170, § 6; SL 1996, ch 157.
23A-43-25.1. Reinstated bond or undertaking paid to officer with whom originally deposited.
Upon order of the court for the reinstatement of bond or undertaking of bail, previously forfeited, the county treasurer shall pay to the clerk of court or other officer with whom it was originally deposited such bond or undertaking of bail.
Source: SL 1978, ch 173, § 2; SDCL Supp, § 23-26-13.1; SL 1979, ch 159, § 43.
23A-43-26. (Rule 46(f)) Exoneration of obligors and release of bail--Cash deposit or surrender of defendant exonerating.
When the condition of a bond has been satisfied or the forfeiture of a bond has been set aside or remitted, a court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
Source: SL 1978, ch 178, § 527.
23A-43-27. Exoneration of bail on commitment under sentence.
When a defendant is committed pursuant to § 23A-26-12, the court shall exonerate his bail pursuant to § 23A-43-24.
Source: CCrimP 1877, § 410; CL 1887, § 7437; RCCrimP 1903, § 417; RC 1919, § 4934; SDC 1939 & Supp 1960, § 34.3676; SDCL, § 23-48-2; SL 1978, ch 178, § 528.
23A-43-28. Exoneration of bail on commitment as mentally ill.
If a defendant is committed as mentally ill, the court shall exonerate his bail pursuant to § 23A-43-24.
Source: SDC 1939 & Supp 1960, § 34.2004; SDCL, § 23-38-7; SL 1978, ch 175, § 9; SL 1978, ch 178, § 529.
23A-43-29. Arrest of defendant by surety on violation of conditions--Recommitment and discharge of surety.
Any defendant who is released on the execution of an appearance bail bond with one or more sureties may, if he violates the conditions of his release, in vacation, be arrested by his surety, delivered to a law enforcement officer, and brought before any committing magistrate. At the request of such surety, the committing magistrate shall recommit the defendant to the custody of the law enforcement officer, and endorse on the recognizance, or certified copy thereof, the discharge and exoneretur of the surety. The person so committed shall be held in custody until discharged by due course of law.
Source: SDC 1939 & Supp 1960, § 34.1808; SDCL, §§ 23-26-9, 23-26-10; SL 1978, ch 178, § 530.
23A-43-30. (Rule 46(g)) Court supervision to eliminate unnecessary detention.
A court shall exercise supervision over the detention of defendants and witnesses pending trial for the purpose of eliminating all unnecessary detention.
Source: SL 1978, ch 178, § 531.
23A-43-31. Failure to appear after release as forfeiture of security--Felony or misdemeanor.
Any person who, having been released pursuant to this chapter, fails to appear before any court or judicial officer as required or fails to comply with the provisions of § 25-10-41 shall, subject to the provisions of this title, forfeit any security which was given or pledged for such person's release and, in addition, shall:
(1) If such person was released in connection with a charge of a felony, an alleged felony violation of § 32-23-1, or fails to report for a jail or state correctional facility sentence for any offense, be guilty of a Class 6 felony;
(2) If such person was released in connection with a charge of a misdemeanor, be guilty of a Class 1 misdemeanor; or
(3) If such person was released for appearance as a material witness, be guilty of a Class 1 misdemeanor.
Source: SL 1976, ch 158, § 43-2; SDCL Supp, §§ 23-26-14 to 23-26-16; SL 1978, ch 178, § 533; SL 1994, ch 182; SL 1998, ch 153, § 1; SL 2006, ch 130, § 7; SL 2023, ch 82, § 49.
23A-43-32. Contempt powers of courts unimpaired.
Nothing in this chapter shall interfere with or prevent the exercise by any court of its power to punish for contempt.
Source: SL 1978, ch 178, § 532.
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.
23A-44-10. (Rule 49(d)) Filing with court of papers to be served--Filing as in civil proceedings.
Papers required to be served shall be filed with the court. Papers shall be filed in the manner provided in § 15-6-5(d).
Source: SL 1978, ch 178, § 543.
23A-44-11. (Rule 50(a)) Placement on calendars--Preference to criminal proceedings.
Each court may provide for placing criminal proceedings upon appropriate calendars. Preference shall be given to criminal proceedings as far as practicable.
Source: SL 1978, ch 178, § 544.
23A-44-13. (Rule 51) Exceptions not required to preserve objection--Objection not required when no opportunity.
Exceptions to rulings or orders of a court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor, but if a party has no opportunity to object to a ruling or order the absence of an objection does not thereafter prejudice him.
Source: Supreme Court Rule 414, 1939; SDC 1939 & Supp 1960, § 34.3902; SDCL, § 23-46-2; SL 1978, ch 178, § 546.
23A-44-14. (Rule 52(a)) Defects not affecting substantial rights disregarded.
Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
Source: SDC 1939 & Supp 1960, §§ 34.2902, 34.3002; SDCL, §§ 23-1-2, 23-32-20; SL 1978, ch 178, § 547.
23A-44-15. (Rule 52(b)) Plain error noticed though not brought to court's attention.
Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.
Source: SL 1978, ch 178, § 548.
23A-44-17. Content of record.
The record of any hearing, court trial or jury trial shall consist of the transcript prepared by an official court reporter or court recorder or freelance reporter on contract with the Unified Judicial System, the exhibits offered in evidence and jury instructions.
Source: SL 2010, ch 255 (Supreme Court Rule 10-02), eff. Feb. 26, 2010.
23A-45-1
Criminal proceedings defined.
23A-45-2
(Rule 54(a)) Proceedings to which title applies.
23A-45-3 to 23A-45-6.
(Rules 54(b)(1) to (4)) Reserved.
23A-45-7
(Rule 54(b)(5)) Proceedings to which title not applicable.
23A-45-8
Conflicts between title and other portions of code.
23A-45-9
Definition of terms.
23A-45-10
(Rule 55) Records kept as prescribed by Supreme Court.
23A-45-11
(Rule 56) Circuit court always open--Hours when clerk's office open.
23A-45-12
(Rule 57(a)) Circuit court rules adopted by presiding judge--Consistent with
title--Copies furnished to Supreme Court and code counsel--Publication of
rules.
23A-45-13
(Rule 57(b)) Procedure not specifically prescribed by statute or rule.
23A-45-14
(Rule 58) Forms drawn up by attorney general--Publication by code
commission--Not mandatory.
23A-45-15
(Rule 60) Citation of title--Citation of Rules of Criminal Procedure.
APPENDIX A. Circuit Court Rules (See § 23A-45-12).
23A-45-1. Criminal proceedings defined.
A criminal proceeding is one prosecuted by the state as a party, against a person charged with a criminal offense for the punishment thereof. A proceeding for the violation of an ordinance, bylaw, or police regulation is one prosecuted by a unit of local government as a party, against a person charged with a public offense, for the punishment thereof.
Source: SDC 1939 & Supp 1960, § 34.2901; SDCL, § 23-1-1; SL 1978, ch 178, § 551.
23A-45-2. (Rule 54(a)) Proceedings to which title applies.
This title applies to all criminal proceedings and to all proceedings for the violation of an ordinance, bylaw, or police regulation of a unit of local government in this state before the circuit courts and the magistrate courts except in cases of those minor offenses triable under § 23A-4-2.
Source: SL 1978, ch 178, § 550.
23A-45-7. (Rule 54(b)(5)) Proceedings to which title not applicable.
This title is not applicable to the following proceedings in the South Dakota Codified Laws:
(1) Chapter 21-27, habeas corpus;
(2) Chapter 23-13, prevention and investigation of crimes;
(3) Chapter 23A-35A, interception of communications;
(4) Chapter 23-14, coroners' inquests;
(5) Chapter 23-24, extradition proceedings;
(6) Chapter 23-24A, interstate agreement on detainers;
(7) Chapter 24-13, Board of Pardons and Paroles;
(8) Chapter 24-14, executive clemency;
(9) Chapter 24-15, paroles from the penitentiary;
(10) Chapter 24-16, interstate parolee supervision;
(11) Chapter 26-11, criminal proceedings against minors.
Source: SL 1978, ch 178, § 540; SL 1985, ch 15, § 35.
23A-45-8. Conflicts between title and other portions of code.
Whenever any provision of the code is inconsistent or in conflict with this title or any part of it, the other statutory provision shall be reconciled and harmonized with this title as much as possible, and if such provision cannot be so harmonized and reconciled, then this title shall apply.
Source: SL 1978, ch 178, § 541.
23A-45-9. Definition of terms.
Terms used in this title mean:
(1) "Class 1 misdemeanor," the same as the term is defined in § 22-6-2;
(2) "Class 2 misdemeanor," the same as the term is defined in § 22-6-2;
(3) "Committing magistrate," any of the following:
(a) A justice of the Supreme Court;
(b) A judge of the circuit court;
(c) A magistrate judge;
(d) A nonlaw-trained magistrate when acting within the authority conferred under chapter 16-12C;
(4) "Defendant," the party prosecuted in a criminal proceeding or a proceeding for the violation of an ordinance, bylaw, or police regulation of a unit of local government. A person becomes a defendant when he is arrested or summoned pursuant to § 23A-2-9, 23A-2-11, or 23A-3-1;
(5) "Former acquittal," a plea to prevent a criminal action stating that the defendant has been charged and tried for the same alleged offense and has been acquitted. If a defendant was formerly acquitted on the ground of variance between an indictment or information and the proof, or if an indictment or information was dismissed upon an objection to its form or substance without a judgment of acquittal, it is not an acquittal of the same offense;
(6) "Held to answer," the time at which an indictment or information is filed against a person;
(7) "In camera," the judge viewing material with neither party present;
(8) "In chambers," the judge and the parties determining a matter in the private office of the judge;
(9) "Law enforcement officer," an officer or employee of the state or any of its units of local government, or of the United States, or an employee of a railroad or express company while on duty, who is responsible for the prevention or detection of criminal activity or for the enforcement of the criminal or highway traffic laws of the state. Nothing in this subdivision may be interpreted to extend the territorial jurisdiction, statutory jurisdiction, or statutory authority of any officer or employee included in this definition;
(10) "Night," the period from 8:00 p.m. to 8:00 a.m., local time;
(11) "Oath," an oath or an affirmation;
(12) "Ordinance, bylaw, or police regulation," any rule of conduct promulgated by a unit of local government that may be punished by imprisonment or a fine, or both, for a violation. For purposes of this subdivision, the term, fine, does not include deposits for services rendered, licensing fees, or fees imposed for late payments for services rendered;
(13) "Peace officer," a law enforcement officer;
(14) "Prosecuting attorney," the attorney general, an assistant attorney general, a special assistant attorney general, a state's attorney or an assistant state's attorney, a special prosecutor appointed by a court, a city attorney or any deputy of the city attorney, or any attorney engaged by the state or a unit of local government to prosecute a criminal proceeding or a proceeding for the violation of an ordinance, bylaw, or police regulation of a unit of local government;
(15) "State," the State of South Dakota and any of its units of local government;
(16) "Subpoena," the process by which the attendance of a witness is required before a court, magistrate, or grand jury, or for the purpose of being deposed;
(17) "Unit of local government," a chartered governmental unit, county, township, municipality, or any other subdivision of the state that may enforce its ordinances, bylaws, or regulations by bringing a court action that may result in a fine or imprisonment being imposed on the defendant.
Source: SDC 1939 & Supp 1960, §§ 34.1302, 34.1618, 34.2401, 34.2904; SDCL §§ 23-2-6, 23-21-4, 23-21-7, 23-40-1; SL 1978, ch 178, § 557; SL 1980, ch 173, § 5; SL 2018, ch 147, § 1.
23A-45-10. (Rule 55) Records kept as prescribed by Supreme Court.
Clerks of courts and such other personnel as are prescribed by rule shall keep such records in criminal proceedings as the Supreme Court may prescribe.
Source: SL 1978, ch 178, § 558.
23A-45-11. (Rule 56) Circuit court always open--Hours when clerk's office open.
A circuit court is always open for the purpose of filing any proper paper, of issuing and returning process, and of making motions and orders. A clerk's office with the clerk or a deputy in attendance shall be open for a reasonable time during business hours on all days except Saturdays, Sundays, and days specified as holidays in § 1-5-1, but a court may provide by local rule or order that its clerk's office shall be open for specified hours on Saturdays or particular legal holidays.
Source: SDC 1939 & Supp 1960, § 34.0401; SDCL, § 23-9-1; SL 1978, ch 178, § 559; SL 1979, ch 159, § 44.
23A-45-12. (Rule 57(a)) Circuit court rules adopted by presiding judge--Consistent with title--Copies furnished to Supreme Court and code counsel--Publication of rules.
A majority of the judges in each circuit court may make and amend rules governing practice not inconsistent with the rules contained in this chapter. Notice of the intent to adopt, amend or repeal any rule shall be given by filing a copy of the proposed rule, amendment or repeal in the office of the clerk of courts in each county within the circuit to be affected and by giving notice indicating the purpose of the proposed rule, amendment, or repeal in general terms and fixing a time and place, not sooner than thirty days following the date of the notice, at which any person may appear and be heard regarding the proposed adoption, amendment, or repeal. Notice of the proposed adoption, amendment, or repeal of several rules may be given at one time and in one notice. The notice required by this rule may be given by mailing to all of the active members of the state bar within the circuit.
Any rule, or amendment or repeal thereof, adopted pursuant to this section shall become effective upon being filed with and approved by the Supreme Court. Upon being approved, all such rules, amendments, or repeals thereof shall be filed by the Supreme Court with the code counsel who shall publish them as an appendix to Title 23A of the code. Any rules heretofore adopted pursuant to this section are hereby nullified. Clerks of courts shall make appropriate arrangements, subject to the approval of the Supreme Court, to make copies of all rules promulgated pursuant to this section available to the public.
Source: SL 1978, ch 178, § 560; SL 1979, ch 159, § 45; SL 1991, ch 433 (Supreme Court Rule 90-10).
23A-45-13. (Rule 57(b)) Procedure not specifically prescribed by statute or rule.
If no procedure is specifically prescribed by statute or rule, a court may proceed in any lawful manner not inconsistent with this title or with any other applicable statute.
Source: SL 1978, ch 178, § 561.
23A-45-14. (Rule 58) Forms drawn up by attorney general--Publication by code commission--Not mandatory.
The attorney general shall draw up forms to implement this title. The code commission shall publish such forms as an appendix to this title. Such forms shall be illustrative and not mandatory.
Source: SL 1978, ch 178, § 562.
23A-45-15. (Rule 60) Citation of title--Citation of Rules of Criminal Procedure.
This title may be known and cited as the South Dakota Code of Criminal Procedure. Sections of this title preceded by a rule number may be known and cited as the South Dakota Rules of Criminal Procedure.
Source: SL 1978, ch 178, § 564.
Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; repealed (Supreme Court
Order), eff. December 6, 2019.
Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; SL 1999, ch 274 (Supreme
Court Order), eff. Aug. 25, 1998; repealed (Supreme Court Order), eff. December 6, 2019.
Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; SL 1999, ch 274 (Supreme
Court Order), eff. Aug. 25, 1998; repealed (Supreme Court Order), eff. December 6, 2019.
CR FOUR. Repealed by SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998
Source: SL 1994, ch 402 (Supreme Court Order) eff. Feb. 15, 1994; repealed (Supreme Court
Order), eff. December 6, 2019.
Source: SL 1994, ch 402 (Supreme Court Order) eff. Feb. 15, 1994; repealed (Supreme Court
Order), eff. December 6, 2019.
Source: SL 1994, ch 402 (Supreme Court Order) eff. Feb. 15, 1994; repealed (Supreme Court
Order), eff. December 6, 2019.
Source: SL 1994, ch 402 (Supreme Court Order) eff. Feb. 15, 1994; repealed (Supreme Court
Order), eff. December 6, 2019.
Source: SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998; Supreme Court Order eff.
Aug. 5, 2010; repealed (Supreme Court Order), eff. December 6, 2019.
Source: SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998; repealed (Supreme Court Order), eff. December 6, 2019.
23A-46-1
Conduct of psychiatric or psychological examination--Appointment of
examiners--Additional examiners--Commitment for examination.
23A-46-1.1
List of professionals qualified to conduct evaluations.
23A-46-2
Report by examiner--Contents.
23A-46-3
Hearing--Representation of subject--Opportunity to present evidence.
23A-46-4
Reports of director of facility where person hospitalized.
23A-46-5
Video tape of defendant's testimony or interview.
23A-46-6
Habeas corpus proceeding not precluded.
23A-46-7
Hearing on discharge of person--Time for requesting.
23A-46-8
Notice that release of hospitalized person would create substantial risk--Stay of
release.
23A-46-9
Mental examination and report--Conduct of hearing.
23A-46-10
Commitment--Finding.
23A-46-11
Recovery--Release procedure--Compliance with prescribed regimen as condition.
23A-46-12
Failure to comply with regimen--Notice--Arrest--Court determination.
23A-46-13
Hospitalized person against whom charges dismissed--Notice of risk--Civil
proceedings.
23A-46-1. Conduct of psychiatric or psychological examination--Appointment of examiners--Additional examiners--Commitment for examination.
A psychiatric or psychological examination ordered pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, shall be conducted by:
(1) A licensed or certified psychiatrist;
(2) A licensed clinical psychologist;
(3) A certified social worker licensed for private independent practice with two years of supervised clinical experience in a mental health setting and with training on how to conduct and score competency evaluations;
(4) A certified nurse practitioner or clinical nurse specialist with current psychiatric certification and with training on how to conduct and score competency evaluations;
(5) A licensed professional counselor-mental health with training on how to conduct and score competency evaluations; or
(6) If the court finds it appropriate, by more than one examiner.
Each examiner shall be designated by the court, except that if the examination is ordered under § 23A-27-43 or 23A-46-9, upon the request of the defendant an additional examiner may be selected by the defendant. For the purposes of an examination pursuant to an order under § 23A-10-4, 23A-10A-3, 23A-26-12.1, 23A-27-43, or 23A-46-9, the court may commit the person to be examined for a reasonable period to the custody of a suitable facility.
Source: SL 1985, ch 192, § 30; SL 2017, ch 109, § 18.
23A-46-1.1. List of professionals qualified to conduct evaluations.
The licensing board of each professional listed in § 23A-46-1 shall maintain a list of each professional licensed under their authority qualified to conduct competency evaluations. The Department of Social Services shall maintain a list of those evaluators for use by the courts in coordination with Department of Health, as needed.
Source: SL 2017, ch 109, § 19.
23A-46-2. Report by examiner--Contents.
A psychiatric or psychological report ordered pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive; 23A-26-12 to 23A-26-12.6, inclusive; or 23A-27-42 to 23A-27-46, inclusive, shall be prepared by the examiner designated to conduct the psychiatric or psychological examination, shall be filed with the court with copies provided to the counsel for the person examined and to the prosecuting attorney and shall include:
(1) The person's history, if applicable, and present symptoms;
(2) A description of the psychiatric, psychological, and medical tests that were employed and their results;
(3) The examiner's findings; and
(4) The examiner's opinions as to diagnosis, prognosis and:
(a) If the examination is ordered under § 23A-10A-3, whether the person is suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature and consequences of the proceedings against the person or to assist properly in the person's defense;
(b) If the examination is ordered under § 23A-10-4, whether the person was insane at the time of the offense charged;
(c) If the examination is ordered under § 23A-46-9, whether the person is suffering from a mental disease or defect as a result of which the person's release would create a substantial risk of bodily injury to another person or serious damage to property of another;
(d) If the examination is ordered under § 23A-26-12.1 or 23A-27-43, whether the person is suffering from a mental disease or defect as a result of which the person is in need of custody for care or treatment in a suitable facility; and
(e) If the examination is ordered as a part of a presentence investigation, any recommendation the examiner may have as to how the mental condition of the defendant should affect the sentence.
Source: SL 1985, ch 192, § 31; SL 2017, ch 109, § 20.
23A-46-3. Hearing--Representation of subject--Opportunity to present evidence.
At a hearing ordered pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, the person whose mental condition is the subject of the hearing shall be represented by counsel and, if he is financially unable to obtain adequate representation, counsel shall be appointed for him. The person shall be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf and to confront and cross-examine witnesses who appear at the hearing.
Source: SL 1985, ch 192, § 32.
23A-46-4. Reports of director of facility where person hospitalized.
The director of the facility in which a person is hospitalized pursuant to:
(1) Section 23A-10-4, shall prepare semiannual reports; or
(2) Section 23A-26-12.1, 23A-27-43, or 23A-46-9, shall prepare an annual report concerning the mental condition of the person and containing recommendations concerning the need for his continued hospitalization. The reports shall be submitted to the court that ordered the person's commitment to the facility and copies of the report shall be submitted to such other persons as the court may direct.
Source: SL 1985, ch 192, § 33.
23A-46-5. Video tape of defendant's testimony or interview.
Upon written request of defense counsel, the court may order a video tape record made of the defendant's testimony or interview upon which the periodic report is based pursuant to § 23A-46-4. Such video tape record shall be submitted to the court along with the periodic report.
Source: SL 1985, ch 192, § 34.
23A-46-6. Habeas corpus proceeding not precluded.
Nothing contained in § 23A-26-12 or 23A-46-10 precludes a person who is committed under either of such sections from establishing by writ of habeas corpus the illegality of his detention.
Source: SL 1985, ch 192, § 35.
23A-46-7. Hearing on discharge of person--Time for requesting.
Regardless of whether the director of the facility in which a person is hospitalized has filed a certificate as provided in this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, counsel for the person or his guardian may, at any time during such person's hospitalization, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged from such facility, but no such motion may be filed within one hundred eighty days of a court determination that the person should continue to be hospitalized. A copy of the motion shall be sent to the director of the facility in which the person is hospitalized and to the prosecuting attorney.
Source: SL 1985, ch 192, § 36; SL 1993, ch 213, § 110.
23A-46-8. Notice that release of hospitalized person would create substantial risk--Stay of release.
If the director of a facility in which a person is hospitalized certifies that a person whose sentence is about to expire or who has been committed to the custody of the Human Services Center pursuant to § 23A-10A-4, or against whom all criminal charges have been dismissed solely for the reasons related to the mental condition of the person, is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, he shall transmit a certificate to that effect to the clerk of the court which had jurisdiction over the person. The clerk shall send a copy of the certificate to the person's counsel and to the prosecuting attorney. The court shall order a hearing to determine whether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another. A certificate filed under this section shall stay the release of the person pending completion of the procedures contained in §§ 23A-46-9 to 23A-46-13, inclusive.
Source: SL 1985, ch 192, § 24.
23A-46-9. Mental examination and report--Conduct of 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. The hearing shall be conducted pursuant to the provisions of § 23A-46-3.
Source: SL 1985, ch 192, § 25.
23A-46-10. Commitment--Finding.
If, after the hearing, the court finds by clear and convincing evidence that the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall commit the person to the Human Services Center for treatment until the person's mental condition is such that his release or conditional release under a prescribed regimen of medical, psychiatric, psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another.
Source: SL 1985, ch 192, § 26.
23A-46-11. Recovery--Release procedure--Compliance with prescribed regimen as condition.
When the director of the facility in which a person is hospitalized pursuant to § 23A-46-10 determines that the person has recovered from his mental disease or defect to such an extent that his release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, 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 the person's counsel and to the prosecuting attorney. The court shall order the discharge of the person, or on motion of the prosecuting attorney or on its own motion, shall hold a hearing, conducted pursuant to the provisions of § 23A-46-3, to determine whether or not he should be released. If, after the hearing, the court finds by a preponderance of the evidence that the person has recovered from his mental disease or defect to the extent that:
(1) His release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or
(2) His conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall:
(a) Order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the director of the facility in which he is committed and that has been found by the court to be appropriate; and
(b) Order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment. The court at any time may, after a hearing employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.
Source: SL 1985, ch 192, § 27.
23A-46-12. Failure to comply with regimen--Notice--Arrest--Court determination.
The director of the medical facility responsible for administering the regimen imposed on a person conditionally discharged under § 23A-46-11 shall notify the prosecuting attorney and the court having jurisdiction over the person of any failure of the person to comply with the regimen. On such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with a prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.
Source: SL 1985, ch 192, § 28.
23A-46-13. Hospitalized person against whom charges dismissed--Notice of risk--Civil proceedings.
If the administrator of the facility in which a person is hospitalized pursuant to this chapter, §§ 23A-10A-3 to 23A-10A-4.2, inclusive, 23A-26-12 to 23A-26-12.6, inclusive, or 23A-27-42 to 23A-27-46, inclusive, certifies that the person, against whom all charges have been dismissed for reasons not related to the mental condition of the person, is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the administrator shall refer the matter to the prosecuting attorney for proceedings for civil commitment.
Source: SL 1985, ch 192, § 29.
23A-47-1
Placement into administrative financial accountability system.
23A-47-2
Management of parolee, inmate, or probationer by administrative financial
accountability system.
23A-47-3
Monitoring and tracking of payments.
23A-47-4
Promulgation of rules for collection of outstanding court-ordered financial
obligations.
23A-47-5
Termination of financial obligation.
23A-47-6
Failure to comply with plan of restitution or plan for financial obligations.
23A-47-7
Contempt or review hearings.
23A-47-8
Report on administrative financial accountability system.
23A-47-1. Placement into administrative financial accountability system.
The Department of Corrections or the Unified Judicial System may place any adult offender with an outstanding court-ordered financial obligation into the administrative financial accountability system.
Source: SL 2013, ch 101, § 43, eff. Jan. 1, 2014.
23A-47-2. Management of parolee, inmate, or probationer by administrative financial accountability system.
A parolee, inmate, or probationer, who is discharged from supervision but has outstanding, court-ordered financial obligations, shall be managed by the administrative financial accountability system, as administered pursuant to § 23A-47-3, in order to satisfy all court-ordered financial obligations.
Source: SL 2013, ch 101, § 44, eff. Jan. 1, 2014; SL 2015, ch 142, § 1.
23A-47-3. Monitoring and tracking of payments.
The administrative financial accountability system shall be administered by the Unified Judicial System pursuant to § 23A-28-3 and shall monitor and track payments within the system.
Source: SL 2013, ch 101, § 45, eff. Jan. 1, 2014; SL 2015, ch 142, § 2.
23A-47-4. Promulgation of rules for collection of outstanding court-ordered financial obligations.
The Supreme Court shall promulgate rules for the collection of outstanding court-ordered financial obligations through the administrative financial accountability system. The rules shall include graduated responses to noncompliance and a policy for the termination or adjustment of the financial obligations.
Source: SL 2013, ch 101, § 46, eff. Jan. 1, 2014; SL 2015, ch 142, § 3.
23A-47-5. Termination of financial obligation.
Pursuant to rules established by the Supreme Court, any financial obligation from an order more than twenty-five years old, deemed uncollectible, or following the death of an offender may be terminated.
Source: SL 2013, ch 101, § 47, eff. Jan. 1, 2014.
23A-47-6. Failure to comply with plan of restitution or plan for financial obligations.
Failure of any individual in this system to comply with the plan of restitution or plan for financial obligations as approved or modified by the court constitutes a violation of the conditions within this system. Without limitation, the court may modify the plan of restitution or financial obligation, extend the period of time for restitution or financial obligation, or continue the individual in the administrative financial accountability system. If the individual fails to make payment as ordered by the court, the individual may be held in contempt of the court's order.
Source: SL 2013, ch 101, § 48, eff. Jan. 1, 2014; SL 2015, ch 142, § 4.
23A-47-7. Contempt or review hearings.
The original sentencing court shall be the court of competent jurisdiction pursuant to § 23A-47-6 for contempt or review hearings, if necessary, as part of the financial accountability collections system.
Source: SL 2013, ch 101, § 49, eff. Jan. 1, 2014; SL 2015, ch 142, § 5.
23A-47-8. Report on administrative financial accountability system.
The Unified Judicial System shall semiannually report the implementation and outcomes of the administrative financial accountability system to the oversight council.
Source: SL 2013, ch 101, § 50, eff. Jan. 1, 2014.
CHAPTER 23A-48
PROBATION SUPERVISION, RESPONSE TO VIOLATION OF CONDITIONS, AND DISCHARGE
23A-48-1 Evidence-based probation supervision practices.
23A-48-2 Methods used in adult probation supervision.
23A-48-3 Adult probation change plan defined.
23A-48-4 Graduated response grid for violation of conditions of probation.
23A-48-5 Statewide utilization of grid for adult cases.
23A-48-6 Incentives for compliance.
23A-48-7 Response grid to be standard condition of probation--Review of moderate or serious sanctions.
23A-48-8 Arrest for misdemeanor or felony--Petition to modify or revoke probation--Report.
23A-48-9 Application of grid.
23A-48-10 Factors for imposition of sanction.
23A-48-11 Court services officer response to violation of conditions of probation.
23A-48-12 Term of probation.
23A-48-13 Response grid oversight committee.
23A-48-14 Sentencing court authority to respond to violation or modify conditions.
23A-48-15 Earned discharge policy established.
23A-48-16 Definitions pertaining to earned discharge credits.
23A-48-17 Certain probationers ineligible for earned discharged credits.
23A-48-18 Eligibility for earned discharge credit.
23A-48-19 Criteria for awarding earned discharge credits.
23A-48-20 Reports to chief court services officer.
23A-48-21 Review of denial of earned discharge credit.
23A-48-22 Irrevocability of discharge credits--Sentencing court authority to modify probation.
23A-48-A Graduated Response Grid
APPENDIX TO CHAPTER 23A-48
Appendix A. Graduated Response Grid
South Dakota's Application of Supervisory Responses (ASR): Responding to the Public Safety Improvement Act
Violation Severity |
Administrative/ Financial Obligations Only/ Case Service Monitoring |
Low Risk active probationer (LSI-R) |
Moderate Risk active probationer (LSI-R) |
High Risk active probationer (LSI-R) |
Minor Failure to file paperwork/form on time Failure to complete an assignment/ directive Missing programming appointment (1st time) Missing meeting with officer (1st time) Late to meeting w/officer (1st time) Failure to meet financial obligation (1st time) Dishonesty (1st time) Failure to maintain satisfactory performance at educational/ employment endeavor (1st time) One 24/7 violation Violation of social decorum |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service; 1 time) $ Written assignment for client (brief) $ Discretion of CSO; appropriate per violation |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service; 1 time) $ Written assignment for client (brief) $ Discretion of CSO; appropriate per violation |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service; 1 time) $ Written assignment for client (brief) $ Discretion of CSO; appropriate per violation |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service; 1 time) $ Written assignment for client (brief) $ Discretion of CSO; appropriate per violation $ Extra (scheduled) meeting with officer for problem solving |
Moderate Continuing failure to file paperwork/form Continuing failure to complete assign./direct. Continuing missed programming appt. Continuing lateness to meeting w/officer Continuing failure to meet finance.ob. Continuing dishonesty Failure to report change in status (employ;residence; other) New arrest/charge B Misdemeanor Class 2 Continuing missed meeting w/officer New arrest/charge B Misdemeanor Class 1 Prohibited space by statute or court order Unsatisfactory termination from treatment program Continuing failure to maintain satisfactory performance at educational/ employment endeavor Contact with prohibited associates Violation of protection order Two 24/7 violation Positive (or continuing positive) UA Positive (or continuing positive) PBT AWOL |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment $ Discretion of CSO; appropriate per violation |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment $ Discretion of CSO; appropriate per violation $ Treatment referral $ Short-term jail stay B up to 48 hours |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment $ Discretion of CSO; appropriate per violation $ Treatment referral $ Increase meeting requirement $ Develop planner/scheduler/ workbook $ Court observations $ Increase UA and similar $ Residential/out-of-home placement $ House arrest/Electronic monitoring $ Short-term jail stay B up to 48 hours |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment $ Discretion of CSO; appropriate per violation $ Treatment referral $ Increase meeting requirement $ Develop planner/scheduler/ workbook $ Court observations $ Increase UA and similar $ Residential/out-of-home placement $ House arrest/Electronic monitoring $ Short-term jail stay B up to 48 hours |
Serious Continuing or ongoing contact w/prohibited associates Continuing or ongoing prohibited space by statute or court order Continuing failure to report change in status (employ; residence; other) Three or more 24/7 violation Ongoing failure to file paperwork/ form Ongoing missed programming appt. Ongoing missed meeting w/officer Ongoing lateness to meeting w/officer Ongoing failure to meet finance ob. Ongoing dishonesty Ongoing failure to maintain satisfactory performance at educational/ employment endeavor Ongoing positive UA and similar Ongoing positive PBT Unsatisfactory termination from any treatment program A significant event related to original/instant offense *New arrest/charge B Felony *Absconding *Continuing or ongoing AWOL *Continuing violation of protection order
|
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment (thinking report) $ Increase/ institute meeting requirement $ Increase in supervision level/risk level $ Discretion of CSO; appropriate per violation $ Formal violation order to show cause issued |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment (thinking report) $ Increase meeting requirement $ Treatment referral $ Increase UA and similar $ Increase in supervision level/risk level $ House arrest/Electronic monitoring $ Discretion of CSO; appropriate per violation $ Short-term jail stay B up to 48 hours |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment (thinking report) $ Increase meeting requirement $ Treatment referral $ Increase UA and similar $ House arrest/Electronic monitoring $ Develop planner/scheduler/ workbook $ Residential/out-of-home placement (incl.tx) $ Discretion of CSO; appropriate per violation $ Short-term jail stay B up to 48 hours |
$ Verbal consequence $ Letter to client $ Volunteer opportunity (service) $ Written assignment (thinking report) $ Increase meeting requirement $ Treatment referral $ Increase UA and similar $ House arrest/Electronic monitoring $ Develop planner/scheduler/ workbook $ Residential/ out-of-home placement (incl.tx) $ Discretion of CSO; appropriate per violation $ Short-term jail stay B up to 48 hours |
Italics = discharge credit is not earned, if applicable to the case. Once discharge credit has not been granted to the offender for a month, it may not be earned back.
Violations that are not Italicized assume earned discharge credit can still be earned by the offender, if applicable to the case.
*Indicates the officer is required to submit a violation of probation report. In all other cells of the grid, the officer has the discretion to submit a probation violation report as appropriate in response to behavior.
Source: SL 2014, ch 258 (Supreme Court Rule 13-15, § 8), eff. Jan. 1, 2014.
23A-48-1. Evidence-based probation supervision practices.
Adult probation supervision shall use evidence-based practices and shall target the probationer's criminal risk and need factors with appropriate supervision and intervention, focusing resources on moderate-risk and high-risk offenders.
Source: SL 2014, ch 256 (Supreme Court Rule 13-14, § 1), eff. Jan. 1, 2014.
23A-48-2. Methods used in adult probation supervision.
Adult probation supervision shall include:
(1) Use of a normed and validated risk and needs assessment measuring criminal risk factors, specific individual needs and driving variable supervision levels;
(2) Use of assessment results to guide targeted supervision responses consistent with evidence-based practices as to the level of supervision and the practices used to reduce recidivism;
(3) Collateral and personal contacts, including unscheduled contacts, with the offender and community and with a frequency consistent with the probationer's supervision level and risk of re-offense, staying informed of the probationer's conduct, compliance with conditions, and progress in community based intervention;
(4) Use of adult probation change plans for each probationer assessed as medium-risk, high-risk or intensive risk to reoffend;
(5) Use of an automated call-in system for each probationer assessed as administrative or low risk to reoffend unless otherwise approved by the chief court services officer for the judicial circuit; and
(6) Use of practical and suitable supervision methods that are consistent with evidence-based practices to aid and encourage the probationer to improve his or her conduct and circumstances and to reduce the risk of recidivism through the use of incentives and rewards for positive behavior and swift and certain sanctions for noncompliance.
Source: SL 2014, ch 256 (Supreme Court Rule 13-14, § 2), eff. Jan. 1, 2014.
23A-48-3. Adult probation change plan defined.
"Adult probation change plan" means an individualized, documented accountability and behavior change strategy that:
(1) Matches the type and intensity of supervision to the assessed risk of reoffending;
(2) Targets and prioritizes the specific criminal risk factors of the individual, with attention to addressing barriers to learning and participation;
(3) Engages the probationer in the development of the plan; and
(4) Establishes a timetable for achieving specific behavioral goals, including a schedule for payments of restitution, child support, and other financial obligations.
Source: SL 2014, ch 256 (Supreme Court Rule 13-14, § 3), eff. Jan. 1, 2014.
23A-48-4. Graduated response grid for violation of conditions of probation.
Pursuant to § 16-22-13, the Supreme Court hereby adopts the following graduated response grid and rules to guide court services officers in determining the appropriate response to a violation of conditions of probation. It is the policy of the Unified Judicial System that violations of probation be addressed in a timely, consistent and reasonable manner by use of a graduated response grid. The use of graduated sanctions and incentives is intended to achieve public safety by holding offenders accountable for their behavior and reinforcing positive behavior.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 1), eff. Jan. 1, 2014.
23A-48-5. Statewide utilization of grid for adult cases.
The response grid in Appendix A to this chapter is hereby adopted for statewide use by court services officers. The response grid shall be utilized statewide for all adult cases supervised through court services. Sections 23A-48-4 to 23A-48-14, inclusive, do not apply to probationers supervised as part of a drug court as defined by § 16-22-3.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 2), eff. Jan. 1, 2014.
23A-48-6. Incentives for compliance.
Court services officers are encouraged to provide incentives for compliance with the conditions of probation and acknowledge achievements to reinforce positive behavior.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 3), eff. Jan. 1, 2014.
23A-48-7. Response grid to be standard condition of probation--Review of moderate or serious sanctions.
Except as stated in § 23A-48-5 the response grid shall be made a standard condition of probation and a probationer shall be informed that they may seek review of any moderate or serious sanction imposed by requesting review by the chief court services officer for the judicial circuit. In the event the supervising court services officer is the chief court services officer, the probationer may request review of such determination by a chief court services officer from another judicial circuit which shall be assigned by the director of trial court services. The decision made by the chief court services officer concerning the imposition of a sanction is final.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 4), eff. Jan. 1, 2014.
23A-48-8. Arrest for misdemeanor or felony--Petition to modify or revoke probation--Report.
The response grid applies to conduct that is a violation of the terms and conditions of probation including an arrest for a misdemeanor offense. If a probationer is arrested for a felony, the court services officer shall submit a probation violation report to the prosecuting attorney. The court services officer may file a petition to modify or revoke probation with the court at any time. If a probationer's conduct demonstrates a significant risk to public safety the court services officer shall immediately submit a probation violation report.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 5), eff. Jan. 1, 2014.
23A-48-9. Application of grid.
A court services officer shall respond to a violation through the application of the grid by utilizing the appropriate cells based on the probationer's risk level and the type of violation. The imposition of sanctions within a grid cell is vested to the discretion of the supervising court services officer. A court services officer may deviate up or down from the grid cell with supervisor approval. Not all responses in each grid cell may be appropriate for all violations or for all probationers. Graduated responses may be used individually or in combination and include formal and informal responses to probation violations. The imposition of any sanction or incentive shall be documented by the court services officer.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 6), eff. Jan. 1, 2014.
23A-48-10. Factors for imposition of sanction.
Court services officers shall consider the risk the probationer poses to the community, the severity of any violation, prior history on probation, previous violations or sanctions, and the deterrent effect when imposing a sanction. The court services officer shall also employ positive reinforcement for a probationer's compliance with the conditions of supervision and completion of benchmarks during the term of supervision.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 7), eff. Jan. 1, 2014.
23A-48-11. Court services officer response to violation of conditions of probation.
In response to a violation of the conditions of probation the court services officer may:
(1) Modify the conditions of community supervision for the limited purpose of imposing graduated sanctions.
(2) Place a probationer who violates the terms of supervision in a local correctional or detention facility for a period of time up to forty-eight hours with review and prior approval of the chief court services officer for the judicial circuit.
(3) Impose any sanction with consideration to the probationers' employment schedule while still preserving public safety and maintaining the purpose and integrity of the sanctioning process.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 8), eff. Jan. 1, 2014.
23A-48-12. Term of probation.
A sanction cannot extend the term of probation.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 9), eff. Jan. 1, 2014.
23A-48-13. Response grid oversight committee.
There is hereby established a response grid oversight committee to consider recommendations to the graduated response grid and make such changes as the committee determines appropriate by majority vote. The committee shall be appointed by the Chief Justice of the South Dakota Supreme Court. The committee shall consist of nine members and be composed of two judges, two chief court services officers, one deputy chief court services officer, two court services officers that are not chief or deputy chief court services officers, one state's attorney and one defense attorney. The director of trial court services shall also serve as a non-voting member of the committee. The committee shall meet within 180 days from appointment and at least annually thereafter.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 10), eff. Jan. 1, 2014.
23A-48-14. Sentencing court authority to respond to violation or modify conditions.
Nothing in §§ 23A-48-4 to 23A-48-14, inclusive, shall be construed to limit the sentencing court's ability to respond to a probation violation or modify the terms and conditions of probation.
Source: SL 2014, ch 258 (Supreme Court Rule 13-16, § 11), eff. Jan. 1, 2014.
23A-48-15. Earned discharge policy established.
Pursuant to the South Dakota Public Safety Improvement Act the Supreme Court establishes the following criteria and procedure for awarding earned credits for discharge from probation.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 1), eff. Jan. 1, 2014.
23A-48-16. Definitions pertaining to earned discharge credits.
Definitions for the purposes of determining earned discharge credits:
A. Absconded. The term absconded means to be absent from the offender's approved place of residence or employment with the intent of avoiding supervision. When there is reason to believe that an offender has absconded, verification of absence is obtained by conducting a field contact at the last known approved place of residence, contacting the last known approved place of employment, if applicable, and contacting known family members and collateral contacts.
B. Probationer. A probationer is defined as any person convicted of a felony or receiving a suspended imposition under § 23A-27-13 on a felony charge and sentenced by a South Dakota court to a term of supervised probation exceeding six months. A probationer for the purpose of §§ 23A-48-15 to 23A-48-22, inclusive, does not include a person sentenced to drug court, a minor on juvenile court probation, or a person serving probation only on a misdemeanor offense under the laws of the State of South Dakota.
C. Probation Violation. A probation violation is defined as any written report submitted to the prosecuting attorney by a supervising court service's officer, or any petition to modify or revoke probation filed with the court by a state's attorney, the attorney general or court services officer alleging that a probationer has violated the terms of supervised probation.
D. Supervised Probation. Supervised probation under §§ 23A-48-15 to 23A-48-22, inclusive, shall mean a period of probation, exceeding six months, imposed upon a probationer who has entered into a written agreement for probation with a court services officer that has been approved and filed with the court. Supervised probation does not include supervision through case-service monitoring or through the financial accountability collections system.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 2), eff. Jan. 1, 2014.
23A-48-17. Certain probationers ineligible for earned discharged credits.
Any probationer serving a term of supervised probation as the result of a sex offense under § 22-24B-1, a violation of the sex offender registry requirements, or a violation of community safety zone requirements is not eligible for earned discharge credits under §§ 23A-48-15 to 23A-48-22, inclusive.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 3), eff. Jan. 1, 2014.
23A-48-18. Eligibility for earned discharge credit.
Except as set forth in § 23A-48-17, a probationer who has a term of supervised probation of six months or more as of January 1, 2014 shall be eligible for earned discharge credit as set forth in § 23A-48-19 regardless of the date of conviction.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 4), eff. Jan. 1, 2014.
23A-48-19. Criteria for awarding earned discharge credits.
A probationer shall be awarded earned discharge credits while on supervised probation as follows:
(1) For each full calendar month of compliance with the terms of supervised probation an earned discharge credit of 30 days shall be awarded to a probationer. Each earned discharge credit shall reduce the term of supervised probation by 30 days. No earned discharge credit may be awarded for a partial month or the last two full months of supervised probation. No earned discharge credit may be awarded for any month, or portion of a month, during which the probationer is incarcerated.
(2) A probationer shall not receive an earned discharge credit for any month(s) during which a probation violation is pending before the court. If the court does not sustain the probation violation, the court may enter a written order awarding earned discharge credits to the probationer for the months the probation violation was pending before the court. Absent such an order the probationer shall not be entitled to any earned discharge credit for such period of time.
(3) Earned discharge credits shall not be awarded to a probationer for any month(s) in which a probationer is absconded. Additionally, a probationer shall not be awarded earned discharge credit for any month in which the probationer was sanctioned for conduct that disqualifies the probationer from receiving earned discharge credits as provided by the graduated response grid.
(4) A South Dakota probationer placed on supervised probation who is supervised in another state under the Interstate Compact for Adult Offender Supervision is eligible for earned discharge credits pursuant to §§ 23A-48-15 to 23A-48-22, inclusive.
(5) Earned discharge credits shall be applied to the probation term within fifteen days after the end of the month in which any credit was earned. A probationer who is eligible for earned discharge credits shall be notified of their probation discharge date on a semi-annual basis.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 5), eff. Jan. 1, 2014; SL 2015, ch 275 (Supreme Court Rule 15-13), eff. July 1, 2015; SL 2024, ch 240 (Supreme Court Rule 24-02), eff. Feb. 20, 2024.
23A-48-20. Reports to chief court services officer.
Within ten days following the end of the month, a supervising court services officer shall report to the chief court services officer for the judicial circuit the name of any probationer eligible for an award of earned discharge credit and whether an earned discharge credit was awarded for the previous month.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 6), eff. Jan. 1, 2014.
23A-48-21. Review of denial of earned discharge credit.
A probationer who objects to a supervising court services officer's determination that the probationer is ineligible for the award of earned discharge credit may seek review of that decision with the chief court services officer for the judicial circuit. Review of the denial of earned discharge credit may be made by filing a notice of review with the chief court services officer within 10 days from receiving notice of the denial. In the event the supervising court services officer is the chief court services officer, the probationer may request review of such determination by a chief court services officer from another judicial circuit which will be assigned by the director of trial court services. The decision made by the chief court services officer concerning the award of earned discharge credits is final.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 7), eff. Jan. 1, 2014.
23A-48-22. Irrevocability of discharge credits--Sentencing court authority to modify probation.
Earned discharge credits are not revocable once awarded. However, nothing in §§ 23A-48-15 to 23A-48-22, inclusive, limits the sentencing court's authority to modify the terms and conditions of probation.
Source: SL 2014, ch 257 (Supreme Court Rule 13-15, § 8), eff. Jan. 1, 2014.
CHAPTER 23A-49
CIVIL FORFEITURE FOR CRIME
23A-49-1 Real property subject to forfeiture for crime listed in chapter 34-20B or 22-24A.
23A-49-2 Conveyance used in common carrier business not subject to forfeiture--Exception.
23A-49-3 Stolen and leased conveyances not subject to forfeiture--Exception.
23A-49-4 Conveyance not subject to forfeiture for acts or omissions of nonowner--Exception.
23A-49-5 Item not subject to forfeiture for act or omission without owner's knowledge or consent.
23A-49-6 Victim protected against forfeiture by victim immunity.
23A-49-7 Seizure of property by court process.
23A-49-8 Seizure of property without court process.
23A-49-9 Time for instituting proceedings.
23A-49-10 Seized property subject only to order of court or official.
23A-49-11 Attorney general action with respect to seized property.
23A-49-12 Property subject to security interest--Action by attorney general.
23A-49-13 Civil action--Standard of proof.
23A-49-14 Procedure in forfeiture proceedings involving property other than real property or conveyances.
23A-49-15 Procedure in forfeiture proceedings involving real property or conveyances.
23A-49-16 Service of process by mail where person released on bail.
23A-49-17 Answer by party in interest.
23A-49-18 Disposition of property by court where no appearance made.
23A-49-19 Trial--Disposition of property by court.
23A-49-20 Attorney general's disposition of forfeited property.
23A-49-21 Seized property--Written report--Contents.
23A-49-22 Seized property--Searchable website or spreadsheet.
23A-49-23 Seized property--Information to be public.
23A-49-24 Seized property--Fees and costs recouped.
23A-49-25 Seized property--Promulgation of rules.
23A-49-1. Real property subject to forfeiture for crime listed in chapter 34-20B or 22-24A.
All real property, including any right, title, and interest in the whole of any platted lot or tract of land which is measured in three hundred twenty acre increments, or all of any smaller amount and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit or to facilitate the commission of a violation of any crime listed in chapter 34-20B or 22-24A, is subject to forfeiture under this section. Forfeiture under this chapter of real property encumbered by a bona fide security interest is subject to the interest of the secured party unless the secured party had actual knowledge of the act upon which the forfeiture is based. Notice of forfeiture proceedings shall be given each owner or secured party whose right, title, or interest is of record, at the time of the seizure, with the secretary of state or the register of deeds in the county where the real property is located. A person claiming a security interest bears the burden of establishing that interest by a preponderance of the evidence. No real property may be forfeited under the provisions of this chapter by reason of any act committed by a person other than an owner of the property unless that owner had actual knowledge that the real property was used or intended for use in any of the manners set forth in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 1.
23A-49-2. Conveyance used in common carrier business not subject to forfeiture--Exception.
Notwithstanding the provisions of subdivision 34-20B-70(4) or 22-24A-15(4), no conveyance used by any person as a common carrier in the transaction of business as a common carrier may be forfeited under the provisions of this chapter, unless it appears that the owner or other person in charge of the conveyance was a consenting party or privy to a violation of any crime in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 2.
23A-49-3. Stolen and leased conveyances not subject to forfeiture--Exception.
Notwithstanding the provisions of subdivision 34-20B-70(4) or 22-24A-15(4), no conveyance may be forfeited under the provisions of this chapter, by reason of any act or omission established by the owner of the conveyance to have been committed or omitted by any person other than the owner while the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any state, or while the conveyance was rented or leased from a motor vehicle dealer or a leasing or rental agency and the dealer or agency had no knowledge that the conveyance was being used or intended for use, to transport or in any manner facilitate the commission of any crime in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 3.
23A-49-4. Conveyance not subject to forfeiture for acts or omissions of nonowner--Exception.
Notwithstanding the provisions of subdivision 34-20B-70(4) or 22-24A-15(4), no conveyance may be forfeited under the provisions of this chapter, by reason of any act committed or omitted by a person other than an owner of the conveyance unless the owner knew or in the exercise of ordinary care should have known that the conveyance was being used or was intended for use to facilitate the commission of any crime in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 4.
23A-49-5. Item not subject to forfeiture for act or omission without owner's knowledge or consent.
To the extent of the interest of an owner, a thing of value is not subject to forfeiture under this chapter by reason of any act or omission that is established by the owner of the item to have been committed or omitted without the owner's knowledge or consent.
Source: SL 2016, ch 138, § 5.
23A-49-6. Victim protected against forfeiture by victim immunity.
Any victim of a crime as described in the provisions of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, and 43-43B-1 to 43-43B-3, inclusive, is protected against loss of property through forfeiture by victim immunity as described in § 22-48-2.
Source: SL 2016, ch 138, § 6.
23A-49-7. Seizure of property by court process.
Any property subject to forfeiture under this chapter may be seized by any law enforcement officer or designated agent of the Division of Criminal Investigation upon process issued by any court having jurisdiction over the property.
Source: SL 2016, ch 138, § 7.
23A-49-8. Seizure of property without court process.
The seizure of any property subject to forfeiture under this chapter may be made without process issued under § 23A-49-7 if:
(1) The seizure is incident to an arrest or a search under a search warrant or to an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding under this chapter;
(3) The law enforcement officer or agent has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) The law enforcement officer or agent has probable cause to believe that the property has been used or intended to be used in violation of crimes in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 8.
23A-49-9. Time for instituting proceedings.
If a seizure pursuant to § 23A-49-7 or subdivisions 23A-49-8(1), (3), or (4) occurs, the attorney general shall institute, within sixty days of the seizure, the proceedings pursuant to § 23A-49-14 or 23A-49-15.
Source: SL 2016, ch 138, § 9.
23A-49-10. Seized property subject only to order of court or official.
No property taken or detained pursuant to this chapter is replevinable or subject to an action in claim and delivery. However, the property is deemed to be in the custody of the attorney general, subject only to the orders and decrees of the court or the official having jurisdiction over the property.
Source: SL 2016, ch 138, § 10.
23A-49-11. Attorney general action with respect to seized property.
If property is seized under the provisions of this chapter, the attorney general may:
(1) Place the property under seal;
(2) Remove the property to a place designated by the attorney general; or
(3) Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
Source: SL 2016, ch 138, § 11.
23A-49-12. Property subject to security interest--Action by attorney general.
Any property, as described in subdivisions 34-20B-70(4), (6), and (7) or 22-24A-15(4), (6), and (7), or § 23A-49-1, that is subject to a bona fide perfected security interest at the time of seizure of the personal property, at the time the offense was committed, and is forfeited under the provisions of §§ 23A-49-7 to 23A-49-19, inclusive, shall be taken by the attorney general subject to the security interest. The attorney general shall, within sixty days of the forfeiture of the property:
(1) Return the property to the possession of the secured party;
(2) Satisfy fully all indebtedness to the secured party secured by the property; or
(3) Return the property to the possession of the secured party and require the secured party to sell the property within sixty days of receipt of the property from the attorney general at public or private sale and retain all proceeds necessary to satisfy fully all indebtedness of the secured party secured by the property together with all reasonable costs of the sale and remit to the attorney general all excess proceeds within thirty days of the sale.
If the secured party knew or should have known, that the property was being used or intended for use to facilitate in the commission of a crime, the provisions of this section do not apply to the property.
Source: SL 2016, ch 138, § 12.
23A-49-13. Civil action--Standard of proof.
Any forfeiture proceeding is a civil action against the property seized and the standard of proof shall be preponderance of the evidence.
Source: SL 2016, ch 138, § 13.
23A-49-14. Procedure in forfeiture proceedings involving property other than real property or conveyances.
If property described in subdivisions 34-20B-70(2), (3), (5), (6), and (7) or 22-24A-15(2), (3), (5), (6), and (7) is seized, the attorney general shall file a summons and complaint for forfeiture of the property in circuit court for the county in which the property was seized or is being held. The proceedings shall be brought in the name of the state. The complaint shall describe the property, and state the property's location, the property's present custodian, the name of each owner if known, the name of each party in interest if known or of legal record, and allege the essential elements of the violation that is claimed to exist. The complaint shall conclude with a prayer to enforce the forfeiture. Notice of a forfeiture proceeding shall be given to each known owner and known party in interest by serving a copy of the summons and complaint in accordance with § 23A-49-15. The procedure governing the proceedings, except as provided in this section, shall be the same as that prescribed for civil proceedings by chapter 15-6.
Source: SL 2016, ch 138, § 14.
23A-49-15. Procedure in forfeiture proceedings involving real property or conveyances.
If property described in § 23A-49-1 or subdivision 34-20B-70(4) or 22-24A-15(4) is seized, the attorney general shall file a summons and complaint for forfeiture of the property in circuit court of the county in which the property was seized or is being held. The proceedings shall be brought in the name of the state. The complaint shall describe the property, and state the property's location, the property's present custodian, the name of each owner if known, the name of each party in interest if known or of legal record, and allege the essential elements of the violation that is claimed to exist. The complaint shall conclude with a prayer to enforce the forfeiture. The procedure governing the proceedings, except as provided by this section, shall be the same as that prescribed for civil proceedings by chapter 15-6. Notice of forfeiture proceedings shall be given to each owner and party in interest whose right, title, or interest is of record as provided in § 23A-49-1 or to the Department of Revenue or the Division of Aeronautics or a similar department of another state if the records are maintained in that state by serving a copy of the summons and complaint upon each known owner and known party in interest in accordance with title 15.
Source: SL 2016, ch 138, § 15.
23A-49-16. Service of process by mail where person released on bail.
If a person as described in §§ 23A-49-14 and 23A-49-15 is released on bail as provided by chapter 23A-43, a summons and complaint for forfeiture of the property may be served by mailing the summons and complaint by certified mail, no return receipt required, to the address left by the person upon release from confinement.
Source: SL 2016, ch 138, § 16.
23A-49-17. Answer by party in interest.
Within thirty days after the service of the notice pursuant to § 23A-49-14 or 23A-49-15, the owner of the seized property and any other party in interest or claimant may file a verified answer to the claims described in the complaint instituting the forfeiture proceedings.
Source: SL 2016, ch 138, § 17.
23A-49-18. Disposition of property by court where no appearance made.
If at the end of thirty days after the notice has been served there is no verified answer on file and no claimant has appeared to defend the complaint, the court shall order the disposition of the seized property as requested in the complaint.
Source: SL 2016, ch 138, § 18.
23A-49-19. Trial--Disposition of property by court.
If a verified answer is filed, the forfeiture proceedings shall be set for a trial on a day not more than one hundred eighty days from the date of the filing. Any party may demand a trial by jury for the forfeiture proceedings pursuant to § 15-6-38(b). At the trial, the state shall establish probable cause for instituting the forfeiture action following which any owner, party in interest, or claimant who has filed a verified answer has the burden of proving that the property seized is not subject to forfeiture under this chapter. If the court or a jury finds that the property is not subject to forfeiture under this chapter, the court shall order the property released to the owner, party in interest, or claimant according to the person's right, title, or interest. The court shall order the property forfeited if the court or a jury determines that the property was subject to forfeiture.
Source: SL 2016, ch 138, § 19.
23A-49-20. Attorney general's disposition of forfeited property.
If property is forfeited under this chapter, the attorney general may:
(1) Retain the property for official use;
(2) Sell any forfeited property which is not required to be destroyed by law and which is not harmful to the public, provided that the proceeds be disposed of for payment of all proper expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising, and court costs. All money seized or remaining proceeds from the sale of any forfeited property shall be paid into the following funds:
(a) If seized pursuant to a violation of chapters 34-20B or 22-42, proceeds shall go to the drug control fund;
(b) If seized pursuant to a violation of chapters 22-24A, 22-23, 22-19A, 22-24B, 43-43B, or 23A-27, proceeds shall be used to reimburse the actual costs of the criminal investigation and prosecution, and any amount over those costs shall be used to satisfy any civil judgments received by the victims. All remaining proceeds shall be paid to the South Dakota internet crimes against children fund; and
(c) If not otherwise specified by this chapter, proceeds shall go to the general fund; or
(3) If property is seized pursuant to a violation of chapters 34-20B or 22-42, the attorney general may forward it to the Division of Criminal Investigation for disposition. Such disposition may include delivery for medical or scientific use to any federal or state agency under regulations of the United States attorney general.
Source: SL 2016, ch 138, § 20.
23A-49-21. Seized property--Written report--Contents.
For any property seized or forfeited under this chapter, a law enforcement agency shall issue a report to the attorney general within a time specified and in a form prescribed by the attorney general, containing information about the property seized or forfeited as listed in § 23A-49-22 and in rule promulgated by the attorney general.
Source: SL 2022, ch 76, § 1.
23A-49-22. Seized property--Searchable website or spreadsheet.
The attorney general shall establish and maintain a searchable public website or electronic spreadsheet that includes the following information about each property seized and forfeited:
(1) Name of the law enforcement agency that seized the property or, if seized by a multijurisdictional state task force, the name of the lead state agency;
(2) Forfeiture case file number;
(3) County;
(4) Arresting agency;
(5) Seizure date;
(6) Location of the seizure, whether a residence, business, event, or traffic stop;
(7) If a traffic stop on an interstate, the direction of the traffic flow, whether eastbound, westbound, southbound or northbound;
(8) Type and amount of controlled substance;
(9) Original criminal charge;
(10) Final criminal charge;
(11) Date of summons and complaint filed;
(12) Date of summons and complaint served or last date of publication;
(13) Whether the defendant or property owner defaulted on the forfeiture complaint, and if no default occurred, the date of civil answer filed by the defendant or property owner;
(14) Whether an innocent-owner claimant or creditor moved to regain the property;
(15) Date of default civil judgment;
(16) Date of summary judgment;
(17) Date of civil dismissal;
(18) Date of order of civil forfeiture;
(19) Dollar amount of seized currency;
(20) Description of seized property, other than currency, including make, model, and year;
(21) Estimated value of seized property other than currency;
(22) Date of case completion;
(23) Dollar amount of forfeited currency after case completion;
(24) Description of forfeited property, other than currency, after case completion;
(25) Estimated value of forfeited property, other than currency, after case completion;
(26) Whether the property was returned to the defendant or property owner, returned to the innocent-owner claimant or creditor, bought back, sold, destroyed, retained or disbursed to law enforcement agency, or pending disposition; and
(27) Case comments.
Source: SL 2022, ch 76, § 2.
23A-49-23. Seized property--Information to be public.
The attorney general, no more than 120 days after the close of the fiscal year, shall post on a searchable public website a report containing an itemized list of each property seized and forfeited for the preceding fiscal year as provided in § 23A-49-22.
The attorney general shall include in the report an itemized list of the expenditures and disbursements made by the attorney general under §§ 23A-49-20 and 34-20B-64.
The attorney general may include in the report recommendations to improve statutes, rules, and policies to better ensure that seizure, forfeiture, and expenditures are done and reported in a manner that is fair to crime victims, innocent property owners, secured interest holders, citizens, law enforcement and taxpayers.
The data and report compiled hereunder are public records under chapter 1-27.
Source: SL 2022, ch 76, § 3.
23A-49-24. Seized property--Fees and costs recouped.
The attorney general may use forfeiture proceeds to pay the costs of compiling and reporting data under §§ 23A-49-21 to 23A-49-25, inclusive.
Source: SL 2022, ch 76, § 4.
23A-49-25. Seized property--Promulgation of rules.
The attorney general shall promulgate rules, in accordance with chapter 1-26 establishing:
(1) The form for law enforcement agencies to file a report with the attorney general;
(2) The deadline by which law enforcement must report under § 23A-49-21;
(3) Procedures necessary to facilitate the reporting provisions under this Act; and
(4) Any information required from law enforcement agencies about property seized and forfeited under this chapter, in addition to the information required to be reported to the attorney general in § 23A-49-22.
Source: SL 2022, ch 76, § 5.
CHAPTER 23A-50
MENTAL HEALTH PROCEDURES IN CRIMINAL JUSTICE
23A-50-1 Definitions.
23A-50-2 Repealed.
23A-50-3 Repealed.
23A-50-4 Repealed.
23A-50-5 Fund for assisting counties with cost of court-ordered competency evaluations of defendants.
23A-50-6 Appointment of mental health response teams--Confidentiality of records.
23A-50-7 Establishment of mental health response team processes.
23A-50-8 Repealed.
23A-50-9 Rules on team formation and procedures.
23A-50-10 Rules regarding procedures for court-appointed defense attorney training.
23A-50-11 List of services available through community mental health system.
23A-50-12 Repealed.
23A-50-13 Repealed.
23A-50-14 Repealed.
23A-50-1. Definitions.
Terms used in this chapter and § 23A-46-1 mean:
(1) "Mental health response team," a support team tasked with finding viable community resources to help persons with severe mental illness involved in the court system;
(2) "Psychiatric certification," a credential obtained by passing the psychiatric-mental health nursing board certification through the American Nurses Credentialing Center; and
(3) "Telehealth," a mode of delivering healthcare services that utilizes information and communication technologies to enable the diagnosis, consultation, treatment, education, care management, and self-management of patients at a distance from health care providers.
Source: SL 2017, ch 109, § 1; SL 2023, ch 79, § 2.
23A-50-5. Fund for assisting counties with cost of court-ordered competency evaluations of defendants.
The Association of County Commissioners, formed pursuant to § 7-7-28, may create and administer a fund for the purpose of assisting counties with the cost of competency evaluations for defendants for whom an evaluation has been ordered by the court. The Department of Social Services may contract with the association to reallocate funds used at the Human Services Center on contractual services for forensic evaluations to be administered through this fund. The fund may also receive and distribute money from any other source. The association board of directors shall provide procedures for the equitable distribution of money from this fund to the counties utilizing court-ordered competency evaluations and provide for the payment of an administrative fee and other reasonable expenses related to the administration of the fund. The association shall report to the Department of Social Services the amount distributed annually in total and by county and the number of competency evaluations completed with funds from the program. The liability of the association related to the administration of this fund shall be limited to the money as is available for such purposes in the fund.
Source: SL 2017, ch 109, § 15; SL 2023, ch 79, § 6.
23A-50-6. Appointment of mental health response teams--Confidentiality of records.
The presiding judge of each judicial circuit may appoint one or more mental health response teams. Each team appointed must include a court services officer for the jurisdiction where the team is to operate, a mental health provider, and a member of law enforcement, and may also include a representative that works with jail administration and one or more representatives from the public. The Unified Judicial System shall maintain a record of the membership of each team. The team may operate telephonically or through electronic communications.
The records prepared or maintained by the team are confidential. Notwithstanding, the records may be inspected by or disclosed to justices, judges, magistrates, and employees of the Unified Judicial System in the course of their duties or to any person specifically authorized by order of the court.
Source: SL 2017, ch 109, § 21; SL 2023, ch 79, § 7.
23A-50-7. Establishment of mental health response team processes.
The mental health response team may establish a process for identifying eligible persons through assessment; a documented process for referral to treatment; a team approach to the development and modification of individualized treatment plans and ongoing coordination to ensure plan effectiveness; a process for information sharing among the team members; and planning and coordination, including referrals for nonmental health services and resources.
Source: SL 2017, ch 109, § 22.
23A-50-9. Rules on team formation and procedures.
The Supreme Court may establish rules, pursuant to § 16-3-1, regarding formation of a mental health response team and the procedures to be followed by the team.
Source: SL 2017, ch 109, § 24.
23A-50-10. Rules regarding procedures for court-appointed defense attorney training.
The Supreme Court may establish rules, pursuant to § 16-3-1, regarding procedures for court-appointed defense attorney training on mental illness.
Source: SL 2017, ch 109, § 26, eff. July 1, 2018.
23A-50-11. List of services available through community mental health system.
The Department of Social Services shall annually compile a list of services available through the community mental health system and eligibility criteria for each service to distribute to judges, court services officers, and jails. The department shall coordinate with the Unified Judicial System and sheriffs to disseminate this information.
Source: SL 2017, ch 109, § 31.
CHAPTER 23A-51
INDIGENT LEGAL SERVICES
23A-51-1 Definitions.
23A-51-2 Commission on Indigent Legal Services--Purpose.
23A-51-3 Commission on Indigent Legal Services--Members--Terms--Officers--Meetings.
23A-51-4 Commission on Indigent Legal Services--Member removal--Vacancy.
23A-51-5 Commission on Indigent Legal Services--Member compensation prohibited--Per diem.
23A-51-6 Commission on Indigent Legal Services--Duties--Promulgation of rules.
23A-51-7 Office of Indigent Legal Services--Purpose.
23A-51-8 Office of Indigent Legal Services--Duties.
23A-51-9 Chief defender--Appointment--Duty--Term--Removal.
23A-51-10 Chief defender--Qualifications.
23A-51-11 Chief defender--Authority.
23A-51-12 Budget--Unified Judicial System.
23A-51-13 Commission of Indigent Legal Services subject to chapter 1-26.
23A-51-14 Office of Indigent Legal Services--Contracting with state agencies permitted.
23A-51-1. Definitions.
The terms used in this chapter mean:
(1) "Attorney," a person licensed to practice law in this state as provided in chapter 16-16, with active membership and in good standing of the State Bar of South Dakota;
(2) "Chief defender," the attorney appointed by the commission to head the Office of Indigent Legal Services;
(3) "Commission," the Commission of Indigent Legal Services;
(4) "Effective assistance of counsel," legal defense services in a criminal case that comply with the standards required by state and federal law;
(5) "Indigent," a person who does not have sufficient money, credit, or property to employ an attorney and pay for the necessary expenses of representation;
(6) "Indigent representation services," legal defense services provided by an attorney to an indigent person where there is a right to counsel under state or federal law;
(7) "Office of Indigent Legal Services," or "office," a state government entity that provides direct indigent representation services and implements the objectives of the commission;
(8) "Private appointed attorney," an attorney who is not employed by the government and who provides indigent representation services; and
(9) "Public defender," an attorney employed by the government who provides indigent representation services.
Source: SL 2024, ch 95, § 1, eff. Mar. 18, 2024.
23A-51-2. Commission on Indigent Legal Services--Purpose.
There is hereby created the Commission on Indigent Legal Services. The commission shall oversee indigent representation services in South Dakota to ensure the effective assistance of counsel where there is a right to counsel under state or federal law.
Source: SL 2024, ch 95, § 2, eff. Mar. 18, 2024.
23A-51-3. Commission on Indigent Legal Services--Members--Terms--Officers--Meetings.
The Commission on Indigent Legal Services consists of nine members appointed as follows:
(1) Three members, not less than two of which are attorneys licensed in South Dakota, appointed by the Governor, that have significant experience in criminal proceedings or a demonstrated commitment to indigent defense, one initially appointed for a term of four years, one initially appointed for a term of three years, and one initially appointed for a term of two years;
(2) Three members, not less than two of which are attorneys licensed in South Dakota, appointed by the chief justice of the Supreme Court, that have experience in criminal proceedings or a demonstrated commitment to indigent defense, one initially appointed for a term of four years, one initially appointed for a term of three years, and one initially appointed for a term of two years;
(3) One member appointed by the president pro tempore of the Senate, initially appointed for a term of three years;
(4) One member appointed by the speaker of the House of Representatives, initially appointed for a term of three years; and
(5) One member appointed by the executive director of the South Dakota Association of County Commissioners, initially appointed for a term of two years.
Thereafter, each appointment shall serve for a term of four years. Members may be reappointed for successive four-year terms, but may not serve for more than twelve years.
The commission shall organize and elect a chairperson at its first meeting. The commission shall hold meetings at the call of the chairperson, or at the request of a majority of its members. No current law enforcement official or prosecutor may serve as a member of the commission. Only one actively serving judge, one private appointed attorney, and one public defender may serve on the commission, and these members may not serve as the chairperson.
Source: SL 2024, ch 95, § 3, eff. Mar. 18, 2024.
23A-51-4. Commission on Indigent Legal Services--Member removal--Vacancy.
The commission may remove a member for good cause by a two-thirds vote of the commission. The appointing authority that made the initial appointment shall appoint a member to fill the vacancy for the length of the unexpired term.
Source: SL 2024, ch 95, § 4, eff. Mar. 18, 2024.
23A-51-5. Commission on Indigent Legal Services--Member compensation prohibited--Per diem.
No commission member may receive compensation for services on the commission. A member shall receive per diem as provided by § 4-7-10.4 and travel expenses for attending commission meetings.
Source: SL 2024, ch 95, § 5, eff. Mar. 18, 2024.
23A-51-6. Commission on Indigent Legal Services--Duties--Promulgation of rules.
The commission shall oversee indigent representation services to ensure effective assistance of counsel in the state court system where there is a right to counsel under state or federal law. The commission shall:
(1) Appoint a chief defender to head the Office of Indigent Legal Services, as provided in § 23A-51-9;
(2) Explore mechanisms for the state to ensure adequate funding for indigent representation services statewide, including state and local governments sharing the cost of such services;
(3) Advocate for resources and policies necessary to ensure effective indigent representation services statewide; and
(4) Promulgate rules pursuant to chapter 1-26 to:
(a) Establish minimum training standards, maximum caseloads allowed, and procedures to reassign conflict cases;
(b) Monitor, evaluate, and enforce compliance with the standards established in subsection (4)(a);
(c) Establish hourly rates and travel reimbursement rates for attorneys appointed or contracted by the Office of Indigent Legal Services that are comparable to those paid to other attorneys for similar case types;
(d) Provide auditing and monitoring of billings for private appointed attorneys and vendor compensation to standardize compensation rates established in subsection (4)(c); and
(e) Provide for the collection of data from state and local systems to inform the oversight duties of the commission.
Source: SL 2024, ch 95, § 6, eff. Mar. 18, 2024.
23A-51-7. Office of Indigent Legal Services--Purpose.
There is hereby created the Office of Indigent Legal Services. The office shall provide indigent representation services and shall oversee indigent representation services in the state courts to ensure the effective assistance of counsel where there is a right to counsel under state or federal law.
Source: SL 2024, ch 95, § 7, eff. Mar. 18, 2024.
23A-51-8. Office of Indigent Legal Services--Duties.
The Office of Indigent Legal Services shall provide statewide indigent representation services in direct appeals in criminal cases, habeas corpus appeals, and abuse or neglect of a child appeal cases. The office may expand its scope of indigent representation services to include additional case types as approved by the commission. The office shall determine the method of delivering indigent representation services by utilizing public defenders, private appointed attorneys, or a combination of both. The office may contract with private appointed attorneys to deliver indigent representation and shall provide oversight and review of any contracted attorneys.
Source: SL 2024, ch 95, § 8, eff. Mar. 18, 2024.
23A-51-9. Chief defender--Appointment--Duty--Term--Removal.
The commission shall appoint a chief defender by a majority vote. The chief defender shall head and maintain the Office of Indigent Legal Services. The chief defender shall serve for a term of four years. The commission may reappoint the chief defender to successive terms of four years. There are no term limits. The commission may remove the chief defender during an unexpired term by a two-thirds vote of the commission.
Source: SL 2024, ch 95, § 9, eff. Mar. 18, 2024.
23A-51-10. Chief defender--Qualifications.
The chief defender must be an attorney with the following qualifications:
(1) Experience in indigent representation services in criminal cases;
(2) Commitment to ensuring effective assistance of counsel to all the indigent people of the state; and
(3) Demonstrated experience or potential in management, budget, and the state legislative process.
The chief defender may not engage in the private practice of law.
Source: SL 2024, ch 95, § 10, eff. Mar. 18, 2024.
23A-51-11. Chief defender--Authority.
The chief defender may:
(1) Hire or contract for attorney, professional, technical, and support personnel;
(2) Establish an administrative office within the Office of Indigent Legal Services;
(3) Exercise supervisory authority over all employees of the office;
(4) Assist the commission in the development of standards related to indigent representation services;
(5) Monitor, evaluate, and enforce compliance with standards adopted by the commission;
(6) Develop strategic plans, and conduct research and studies, to inform the objectives of the commission;
(7) Develop strategic plans to expand the office's scope of providing indigent representation to include additional case types;
(8) Establish branch public defender offices;
(9) Provide training and support to indigent defense attorneys statewide; and
(10) Perform other duties as may be prescribed by the commission.
Source: SL 2024, ch 95, § 11, eff. Mar. 18, 2024.
23A-51-12. Budget--Unified Judicial System.
The Commission on Indigent Legal Services and Office of Indigent Legal Services is attached to the Unified Judicial System for budgetary purposes only.
Source: SL 2024, ch 95, § 12, eff. Mar. 18, 2024.
23A-51-13. Commission of Indigent Legal Services subject to chapter 1-26.
The Commission on Indigent Legal Services is subject to chapter 1-26. The commission shall serve a copy of a proposed rule and any publication described in § 1-26-6.6 upon the chair of the commission to which it is attached for the chair's written approval to proceed. After receiving the written approval of the chair, the commission shall serve the director of the Legislative Research Council and the commissioner of the Bureau of Finance and Management as required pursuant to subdivision 1-26-4(2).
Source: SL 2024, ch 95, § 13, eff. Mar. 18, 2024.
23A-51-14. Office of Indigent Legal Services--Contracting with state agencies permitted.
The Office of Indigent Legal Services may enter into joint powers agreements pursuant to chapter 1-24 with state agencies for administrative support, accounting, payroll, and personnel services.
Source: SL 2024, ch 95, § 14, eff. Mar. 18, 2024.