Title 23A, CRIMINAL PROCEDURE

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 , § 3…

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 t…

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.

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, servi…

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…

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 pa…

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 contr…

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,…

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 co…

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.

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.

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…

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 m…

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,…

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 informa…

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 susta…

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.

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.

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, …

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 , …

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 …

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 . Sour…

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 cl…

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.

Admission to bail shall be as provided in chapter 23A-43 . Source: SL 1978, ch 178 , § 411. 23A-33-7 to 23A-33-9. (Rules 38(b), 38(c), 39)) Reserved

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; SD…

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 s…

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 receiv…

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.

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 193…

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. For purposes of this chapter, "property" includes documents, books, papers, dig…

For purposes of this chapter, "digital currency" means a digital representation of value recorded on a cryptographically secured distributed ledger or other medium of exchange, including blockchain, or similar technology. Source: SL 2026, ch 114 , § 2.

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.

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, …

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 probab…

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 sup…

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…

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 sear…

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 …

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 prosecu…

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, t…

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…

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…

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) "Cha…

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 gran…

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 o…