Chapter 111

(Senate Bill 62)

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.

Signed February 22, 2021