Title 23A — CRIMINAL PROCEDURE
59 chapters · 948 sections in this title.
SDCL § 23A-25-8 Request by jury for further instructions--Notice to and presence of parties
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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 cour…
SDCL § 23A-25-9 Discharge of jury on disability of member--Exception
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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 §
SDCL § 23A-26-1 (Rule 31(a)) Unanimous verdict required--Return in open court
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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…
SDCL § 23A-26-10 (Rule 31(d)) Polling of jury after verdict returned--Further deliberation or discharge if not unanimous
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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. Sour…
SDCL § 23A-26-11 Recording of verdict--Inquiry of jury
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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 …
SDCL § 23A-26-12 Remand to custody on verdict of guilty or guilty but mentally ill--Commitment hearing on acquittal for insanity
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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 …
SDCL § 23A-26-12.1 Mental examination and report before hearing
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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
SDCL § 23A-26-12.2 Hearing
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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.
SDCL § 23A-26-12.3 Burden of proof
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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 cle…
SDCL § 23A-26-12.4 Commitment--Duration
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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…
SDCL § 23A-26-12.5 Release--Procedure--Compliance with prescribed regimen as condition
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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, wo…
SDCL § 23A-26-12.6 Failure to comply with regimen--Notice--Arrest--Court determination
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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 …
SDCL § 23A-26-14 Guilty but mentally ill verdict--Required findings
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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 ment…
SDCL § 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
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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 agre…
SDCL § 23A-26-3 General verdict required--Special verdict permitted
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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, …
SDCL § 23A-26-4 Form of general verdict on not guilty plea
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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.
SDCL § 23A-26-5 Form of verdict acquitting for insanity
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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 , § …
SDCL § 23A-26-6 Direction to reconsider improper verdict
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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.
SDCL § 23A-26-7 Verdict as to degree of crime--Lowest degree found on reasonable doubt
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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, h…
SDCL § 23A-26-8 (Rule 31(c)) Conviction of included offense or attempt
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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 …
SDCL § 23A-26-9 Appearance of defendant--When required for verdict
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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 …
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
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Source: SL 2024, ch 92 , § 1.
The court retains jurisdiction to raise or lower the required period of imprisonment within the sentence otherwise allowed by law
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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 al…
If the defendant violates any conditions of probation, the court shall revoke the deferred imposition of sentence and impose and execute the sentence
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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 §
SDCL 22-4A-1
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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.
A defendant serving a sentence under the supervision of the executive branch is not eligible for a deferred imposition of sentence
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Source: SL 2017, ch 92 , § 2; SL 2019, ch 116 , § 1.
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
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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.
SDCL § 23A-27-1 (Rule 32(a)(1)) Time of imposition of sentence--Hearing in mitigation or aggravation of punishment--Presentence hearing for juvenile--Restitution
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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 defen…
SDCL § 23A-27-1.1 Victim's oral impact statement to court before sentence imposed--Response of defendant--Victim defined
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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…
SDCL § 23A-27-1.2 Notice to victim of hearing to reduce sentence--Address to court by victim--Response by defendant--Continuance
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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 heari…
SDCL § 23A-27-1.3 Victim's written impact statement to court before sentence imposed--Response of defendant--Victim defined
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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…
SDCL § 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
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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 sen…
SDCL § 23A-27-11 (Rule 32(d)) Time for withdrawal of plea of guilty or nolo contendere
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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 pl…
SDCL § 23A-27-12 (Rule 32(e)) Placement on probation--Exception
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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 fe…
SDCL § 23A-27-12.1 Supervision of probationers--Performance of special conditions--Payment of costs
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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 …
SDCL § 23A-27-12.2 Order suspending imposition of misdemeanor sentence and placing defendant on probation--Eligibility--Revocation of suspension
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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 wi…
SDCL § 23A-27-13.1 Copy of suspension order forwarded to criminal investigation division
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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 dis…
SDCL § 23A-27-13.2 Probationary supervision by court terminated upon imposition of sentence requiring supervision by executive branch
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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-2…
SDCL § 23A-27-13.3 Suspended imposition of felony sentence--No eligibility for certain rape offenses--Exclusion
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No person who has been convicted of, or pled guilty or nolo contendere to, rape under subdivision 22-22-1 (2) or (3) may be granted a suspended imposition of sentence under §
SDCL § 23A-27-14 Discharge and dismissal of probationer on completion of conditions--No judgment entered--Limitation
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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 t…
SDCL § 23A-27-14.1 Revocation or refusal of certificate of teacher, administrator, or other educational professional
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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 . Sourc…
SDCL § 23A-27-14.2 Revocation or refusal of gaming or racing license--Conditional license
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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…
SDCL § 23A-27-15 Suspension of sentence as conviction for purposes of habitual offender law
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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 a…
SDCL § 23A-27-16 Report to criminal investigation division of discharge and dismissal of probationer--Limited purpose of record
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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 us…
SDCL § 23A-27-17 Sealing of records on discharge of probationer--Effect of order--Future statements by defendant as to conviction
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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, indic…
Imprisonment as condition of probation or suspension of sentence--Credit for time
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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…
SDCL § 23A-27-18.2 Supervision of person sentenced to county jail or state correctional facility as condition of suspension
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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 sentence…
SDCL § 23A-27-18.3 Probation or suspension of sentence--Required and authorized conditions
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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 and as an explicit condition of probation, suspended imposition of senten…
Suspension of correctional facility sentence--Conditions--Supervision
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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 parti…
SDCL § 23A-27-18.5 Continuing jurisdiction to revoke probation or suspended execution of sentence
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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.