Title 23A — CRIMINAL PROCEDURE
59 chapters · 948 sections in this title.
SDCL § 23A-38-6 Counsel for indigent defendants in contempt cases
0.2K chars
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.
SDCL § 23A-38-7 Bail pending appeal from order of confinement--Expeditious disposition of appeal
0.5K chars
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 t…
SDCL § 23A-38-8 Place of confinement of person held in contempt
0.4K chars
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…
SDCL § 23A-38-9 Subsequent punishment for contempt permitted on subsequent refusal to provide information
0.5K chars
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, und…
SDCL 23A-31-1
0.1K chars
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.
SDCL § 23A-39-1 (Rule 43 (a)) Presence required at all times except as provided
0.2K chars
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
SDCL § 23A-39-2 (Rule 43(b)) Voluntary absence of defendant from trial--Conduct justifying exclusion
0.3K chars
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 …
SDCL § 23A-39-3 (Rule 43(c)) Corporation appearing by counsel--Presence not required in misdemeanor prosecutions--Hearing to reduce sentence
0.6K chars
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…
SDCL § 23A-39-4 Bench warrant for defendant failing to appear after release on bail--Costs assessed against defendant
0.6K chars
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, …
SDCL § 23A-39-5 Service of bench warrant
0.2K chars
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.
SDCL § 23A-40-10 Funds available from or on behalf of defendant--Order for reimbursement--Applicability--Credit against lien
1.3K chars
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…
SDCL § 23A-40-11 Lien created against property of person for whom counsel provided--Limitation
1.0K chars
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 …
SDCL § 23A-40-12 Public defender's lien
0.5K chars
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 amou…
SDCL § 23A-40-13 Statement of claim filed--Enforceability of lien
0.7K chars
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 municipa…
SDCL § 23A-40-14 Enforcement or disposition of lien
0.3K chars
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.
SDCL § 23A-40-15 Foreclosure prohibited upon homestead or exempt personal property
0.3K chars
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.
SDCL § 23A-40-16 Correction of mistake in lien record at request of adversely affected person
0.7K chars
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 …
SDCL § 23A-40-17 Court appointed attorney and public defender payment fund established
0.2K chars
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-40-18, 23A-40-19. Repealed by SL 1988, ch 189 , §§ 4, 5
SDCL § 23A-40-20 Annual distribution of moneys in fund--Determination of pro rata payments to counties
0.9K chars
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…
SDCL § 23A-40-21 Training on mental illness and services
0.2K chars
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.
SDCL § 23A-40-6 Arrest or detention without formal charge--Assignment of counsel--Certification of indigency required
1.2K chars
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 su…
SDCL § 23A-40-6.1 Assigned counsel not required where defendant not deprived of liberty--Statement of judge required
0.9K chars
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 n…
Compensation of assigned counsel
1.3K chars
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…
Compensation of assigned counsel for services after judgment and conviction
0.8K chars
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…
SDCL § 23A-41-1 (Rule 45(a)) Days included and excluded in computing time--Adjustment for weekends and holidays
0.8K chars
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…
SDCL § 23A-41-2 (Rule 45(b)) Extension of time by court--Permitting action after expiration of period--Exceptions
0.8K chars
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 pre…
(Rule 45(d)) Minimum time between notice and hearing on motion--Service of affidavits supporting and opposing motions
0.6K chars
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 e…
SDCL § 23A-41-5 (Rule 45 (e)) Time added when papers served by mail
0.3K chars
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 , § 49…
SDCL § 23A-42-1 No limitation on prosecution for Class A, Class B, or Class C felonies
0.3K chars
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.
SDCL § 23A-42-2 Seven - year limitation on other prosecutions
0.3K chars
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 pros…
SDCL § 23A-42-3 Limitation period on forgery or theft commences at time of discovery--Proof as to failure of discovery
0.5K chars
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…
SDCL § 23A-42-4 Prosecution commenced by filing of complaint, information or indictment
0.3K chars
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…
SDCL § 23A-42-5 Tolling of limitation period while defendant out of state
0.4K chars
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 no…
SDCL § 23A-42-6 No limitation during time of mental incompetence
0.2K chars
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.
SDCL § 23A-43-1 (Rule 46(a)) Reserved 23A-43-2 Release of defendant on personal recognizance or unsecured bond--Exceptions
0.4K chars
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 h…
SDCL § 23A-43-10 Review by another magistrate when committing magistrate unavailable
0.2K chars
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.
SDCL § 23A-43-11 Continuation of conditions to insure subjection to another court where charges pending--Transmittal of papers to other jurisdiction
1.1K chars
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…
SDCL § 23A-43-12 Information considered in bail proceedings need not conform to rules of evidence
0.2K chars
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.
SDCL § 23A-43-13 Disposition of cases by forfeiture of collateral not prohibited
0.3K chars
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.
SDCL § 23A-43-14 Motion for amendment by circuit judge of conditions of release
0.5K chars
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 co…
SDCL § 23A-43-15 Appeal to Supreme Court for amendment of conditions of release--Disposition by court
0.6K chars
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…
SDCL § 23A-43-16 Release pending judgment or appeal--Criteria considered--Right to judicial review of conditions
0.7K chars
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 deter…
SDCL § 23A-43-17 (Rule 46(c)) Burden of proof as to risk of flight or danger
0.2K chars
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.
SDCL § 23A-43-18 Conditions of release imposed on material witness--Release after deposition taken
0.3K chars
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 §§ 23…
SDCL § 23A-43-19 Order for commitment or better security from person about to abscond--Order of arrest
0.6K chars
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 secur…
SDCL § 23A-43-2 Release of defendant on personal recognizance or unsecured bond--Exceptions
0.7K chars
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 o…
SDCL § 23A-43-2.1 Defendants charged with offense punishable by death
0.5K chars
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 …
SDCL § 23A-43-20 (Rule 46(d)) Justification by sureties--Findings as to financial responsibility--Attorney not to be surety
0.8K chars
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 bai…
SDCL § 23A-43-21 (Rule 46(e)(1)) Forfeiture of bond and revocation of release on breach of condition--Warrant for arrest
0.5K chars
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…
SDCL § 23A-43-22 (Rule 46(e)(2)) Setting aside forfeiture of bail
0.3K chars
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;…