South Dakota Codified Laws 23A-4-3. (Rule 5(c)) Advice to defendant at initial appearance on charge requiring preliminaryhearing–Charges requiring preliminary hearing–Waiver or scheduling of hearing–Extension of t
If a charge against a defendant requires a preliminary hearing, the defendant may not be called on to plead. The committing magistrate shall inform the defendant of the complaint against the defendant and of any affidavit filed therewith, of the defendant’s right to retain counsel and to request assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The committing magistrate shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The committing magistrate shall also inform the defendant of the defendant’s right to a preliminary hearing. The committing magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail in the amount set pursuant to § 23A-2-4 or chapter 23A-43, or as otherwise provided by law. If the offense charged is a Class 1 misdemeanor, and the circuit in which the offense is charged has a magistrate court presided over by a magistrate judge, the defendant shall be held to answer before the magistrate judge or the circuit court.
No defendant is entitled to a preliminary hearing unless charged with an offense punishable as a felony. If the defendant waives the preliminary hearing, the committing magistrate shall forthwith hold the defendant to answer in circuit court if the offense charged is a felony. If the defendant does not waive the preliminary hearing, the committing magistrate shall schedule a preliminary hearing. The hearing shall be held within a reasonable time, but in any event not later than fifteen days following the initial appearance if the defendant is in custody, and not later than forty-five days if the defendant is not in custody. However, the preliminary hearing may not be held if the defendant is indicted before the date set for the preliminary hearing. With the consent of the defendant and with a showing of good cause, taking into account the public interest and the proper disposition of criminal cases, time limits specified in this section may be extended one or more times by the committing magistrate. In the absence of consent by the defendant, time limits may be extended by the committing magistrate only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.
Attorney's Note
Under the South Dakota Laws, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class 1 misdemeanor | up to 1 year | up to $2,00 |
Terms Used In South Dakota Codified Laws 23A-4-3
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- Bail: Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
Source: SDC 1939 & Supp 1960, § 34.1401; SDCL § 23-27-1; SL 1978, ch 178, § 38; SL 1991, ch 187, § 5; SL 2000, ch 263 (Supreme Court Rule 00-9); SL 2007, ch 304 (Supreme Court Amended Rule 06-72), eff. Nov. 1, 2006; SL 2013, ch 101, § 52.