Title 33, MILITARY AFFAIRS

The adjutant general may: (1) Disapprove or approve the findings or sentence, in whole or in part; (2) Remit, commute, or suspend the sentence in whole or in part; (3) Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findin…

If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges. Source: SL 2012, ch 175 , § 185.

If the opinion of the state's senior force judge advocate, in the state's senior force judge advocate's review pursuant to § 33-10-201 is that corrective action is required as a matter of law and if the adjutant general does not take action that is at least as favorable to the ac…

The state's senior force judge advocate may review any case in which there has been a finding of not guilty of all charges and specifications. The state's senior force judge advocate may not review a case under this section if that person has acted in the same case as an accuser,…

The record of trial and related documents in each case reviewed pursuant to § 33-10-206 shall be sent for action to the adjutant general. The adjutant general may: (1) If subject matter jurisdiction is found to be lacking, void the court-martial ab initio , with or without prejud…

Except as otherwise required by this code, all records of trial and related documents shall be transmitted and disposed of as prescribed by rule and provided by law. Source: SL 2012, ch 175 , § 189.

Any decision of a court-martial may be appealed to the South Dakota Supreme Court. The appellate procedures to be followed shall be those provided by law for the appeal of criminal cases. Source: SL 2012, ch 175 , § 190.

This code applies at all times to all members of the state military forces and all other military forces attached or assigned thereto. Source: SL 2012, ch 175 , § 2.

The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases pursuant to § 33-10-209 and before any federal court when requested to do so by the state attorney general. Appellate government c…

Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court. Source: SL 2012, ch 175 , § 192.

Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority. Source: SL 2012, ch 175 , § 193.

Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in §§ 33-10-211 and 33-10-212 . Source: SL 2012, ch 175 , § 194.

An accused may be represented by civilian appellate counsel at no expense to the state. Source: SL 2012, ch 175 , § 195.

If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn pursuant to § 33-10-193 or 33-10-194 , that part of the sentence extending to dis…

If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn pursuant to § 33-10-193 or 33-10-194 , that part of the sentence extending to dismissal or…

Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged v…

The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, any unexecuted part of the …

The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence. Source: SL 2012, ch 175 , § 200.

Subject matter jurisdiction is established if a nexus exists between an offense, either military or nonmilitary, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in § 33-10-20 . A proper civilian court has primary jurisdiction…

At any time within two years after approval by the convening authority of a court-martial sentence the accused may petition the adjutant general for a new trial on the grounds of newly discovered evidence or fraud on the court-martial. Source: SL 2012, ch 175 , § 201.

Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a senten…

Pursuant to rules as may be promulgated by the Adjutant General pursuant to chapter 1-26 , all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be re…

If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Governor may substitute a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment. Source: S…

If a previously executed sentence of dismissal is not imposed on a new trial, the Governor may substitute a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Governor alone to such commissioned…

The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code, and all dismissals and discharges carried into execution under sentences by courts-martial follo…

Pursuant to rules promulgated by the Adjutant General pursuant to chapter 1-26 , an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this section if the sentence, as approved pursuant to § 33-10-187 , includes an u…

In the case of a person determined under this code to be presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperat…

The state attorney general shall take action in accordance with the state statute applicable to persons incompetent to stand trial. If at the end of the period for hospitalization provided for in the state statute applicable to persons incompetent to stand trial, it is determined…

If the director of a facility in which a person is hospitalized pursuant to § 33-10-228 determines that the person has recovered to such an extent that the person is able to understand the nature of the proceedings against the person and to conduct or cooperate intelligently in t…

Each person discharged from the state military forces who is later charged with having fraudulently obtained a discharge is, subject to §§ 33-10-126 to 33-10-129 , inclusive, subject to trial by court-martial on that charge and is, after apprehension, subject to this code while i…

Upon receipt of a notification, the general court-martial convening authority shall promptly take custody of the person unless the person covered by the notification is no longer subject to this code. If the person is no longer subject to this code, the state attorney general sha…

The director of the facility may retain custody of the person for not more than thirty days after transmitting the notifications required by § 33-10-229 . Source: SL 2012, ch 175 , § 212.

In the application of the state statute applicable to persons incompetent to stand trial to a case under this section, references to the court that ordered the commitment of a person, and to the clerk of such court, shall be deemed to refer to the general court-martial convening …

If a person is found by a court-martial not guilty only by reason of lack of mental responsibility, the person shall be committed to a suitable facility until the person is eligible for release in accordance with this code. Source: SL 2012, ch 175 , § 214.

The court-martial shall conduct a hearing on the mental condition in accordance with the state statute applicable to persons incompetent to stand trial. Source: SL 2012, ch 175 , § 215.

A report of the results of the hearing shall be made to the general court-martial convening authority for the person. Source: SL 2012, ch 175 , § 216.

If the court-martial fails to find by the standard specified in the state statute applicable to persons incompetent to stand trial, that the person's release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a p…

The state statute applicable to persons incompetent to stand trial shall apply in the case of a person hospitalized pursuant to this code, except that the state trial court with felony jurisdiction in the county where the person is hospitalized shall be considered as the court th…

Except as otherwise provided in this section and § 33-10-239 , the state statute most closely comparable to 18 U.S.C. 4247(d) as of January 1, 2012, apply in the administration of §§ 33-10-227 to 33-10-237 , inclusive. In the application of the state statute most closely comparab…

The state statute most closely comparable to chapter 313 of Title 18, United States Code, 18 U.S.C. § 4241 et seq. as of January 1, 2012, referred to in this section apply according to the provisions of this section notwithstanding section 4247(j) of Title 18. If the status of a …

No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service. Source: SL 2012, ch 175 , § 5.

Any person subject to this code who: (1) Commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or (2) Causes an act to be done which if directly performed by the person would be punishable by this code; is a principal. Source:…

Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender's apprehension, trial, or punishment shall be punished as a court-martial may direct. So…

An accused 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 in the offense charged. Source: SL 2012, ch 175 , § 223.

An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. Source: SL 2012, ch 175 , § 224.

Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed. Source: SL 2012, ch 175 , § 225.