21.371.13 96th Legislative Session 400

2021 South Dakota Legislature

Senate Bill 62


An Act

ENTITLED 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 that:

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

(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;

(3) Grants a motion for arrest of judgment or a motion for a new trial; 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.

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

I certify that the attached Act originated in the:

Senate as Bill No. 62

Secretary of the Senate

President of the Senate


Secretary of the Senate

Speaker of the House


Chief Clerk

Senate Bill No. 62

File No. ____

Chapter No. ______

Received at this Executive Office

this _____ day of _____________,

2021 at ____________M.


for the Governor

The attached Act is hereby

approved this ________ day of

______________, A.D., 2021




Office of the Secretary of State

Filed ____________, 2021

at _________ o'clock __M.

Secretary of State


Asst. Secretary of State