21.371.12 96th Legislative Session 400

2021 South Dakota Legislature

Senate Bill 62

Introduced by: The Committee on Judiciary at the request of the Office of the Attorney General

An Act to revise certain provisions regarding appeals by the prosecution.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That § 23A-32-4 be AMENDED.

23A-32-4. Appeal by prosecution from judgment setting aside verdict, dismissal, arrest of judgment, new trial, or deviation from mandatory sentence.

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 setting that:

(1) Sets aside a verdict and entering judgment of acquittal, sustaining ;

(2) Sustains a motion to dismiss an indictment or information, as to any one or more counts, or any part thereof, on statutory grounds or otherwise, or granting ;

(3) Grants a motion for arrest of judgment or a motion for a new trial, or an order finding ; or

(4) Finds mitigating circumstances to exist in deviating from the mandatory sentencing provisions of § 22-42-2. However, any appeal does not bar or preclude another prosecution of the defendant for the same offense, unless the dismissal is affirmed by the Supreme Court.

Section 2. That § 23A-32-5 be AMENDED.

23A-32-5. Appeal by prosecution--Suppression order--Dismissal of complaint--Procedure--Double jeopardy.

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 sustaining a motion to dismiss a complaint on statutory grounds or otherwise.

An appeal under this section may not be taken after a defendant has been put in risk of double jeopardy and is not a matter of right but of sound judicial discretion. Appeals from such orders shall be taken in the same manner as intermediate appeals in subdivision § 15-26A-3(6). No appeal taken under this section shall delay any trial unless a stay be granted in the discretion of the Supreme Court.

Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language.

Overstrikes indicate deleted language.