Title 23A — CRIMINAL PROCEDURE

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 shal…

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 conclus…

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.

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 offen…

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.

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, 19…

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.

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 ch…

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.

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 t…

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.

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 p…

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.

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 …

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 co…

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 i…

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…

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 …

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 ag…

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 c…

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, …

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 …

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.

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 comme…

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…

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.

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 inform…

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 wi…

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 objection…

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.

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.

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 …

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 …

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 g…

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, u…

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 t…

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 additi…

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 …

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.

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.

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.

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 c…

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 a…

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, c…

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 mistri…

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 occurre…

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…

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 …

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 subst…

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 mos…