Motion to Dismiss (Criminal) - South Dakota

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Statement of Facts
4. Grounds for Dismissal
5. Legal Argument
6. Prayer for Relief
7. Certificate of Service

STATE OF SOUTH DAKOTA

IN CIRCUIT COURT, [________________________________] JUDICIAL CIRCUIT

COUNTY OF [________________________________]

DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Defendant, [DEFENDANT FULL LEGAL NAME], by and through counsel, [ATTORNEY NAME], moves to dismiss the ☐ complaint / ☐ information / ☐ indictment, or the following count(s): [________________], on the grounds selected and supported below. This motion is made under SDCL § 23A-8-3 and the authorities identified for each selected ground.

II. STATEMENT OF FACTS

On or about [__/__/____], Defendant was charged with the following offense(s):

[________________________________]

III. GROUNDS FOR DISMISSAL

☐ A. Defect in Indictment or Information (SDCL § 23A-8-2)
The ☐ indictment / ☐ information has the following defect specified in § 23A-8-2: [identify subdivision and facts: ________________________________].

☐ B. Speedy Trial Violation — 180-Day Rule (SDCL § 23A-44-5.1)
Defendant first appeared on this ☐ complaint / ☐ information / ☐ indictment before a judicial officer on [__/__/____]. The trial period expired on [__/__/____] after excluding [____] days under § 23A-44-5.1(4); Defendant has not been brought to trial. Identify each claimed excluded period and the supporting order or record: [________________________________]. The resulting delay is [____] days. The State cannot rebut the resulting presumption of prejudice because [specific facts and record support: ________________________________].

☐ C. Statute of Limitations (SDCL §§ 23A-42-1 to -6)
The charged offense is [________________] and the charging instrument was filed on [__/__/____]. The alleged offense occurred on [__/__/____]. It is ☐ subject to the seven-year period in § 23A-42-2 / ☐ forgery or theft subject to § 23A-42-3's discovery rule. The alleged discovery date, if applicable, is [__/__/____]. Address any periods outside South Dakota or of determined mental incompetence under §§ 23A-42-5 and -6: [________________________________].

☐ D. Double Jeopardy (U.S. Const. Amend. V; S.D. Const. Art. VI, § 9)

☐ E. Due Process Violation (U.S. Const. Amend. XIV; S.D. Const. Art. VI, § 2)

☐ F. Unnecessary Delay (SDCL § 23A-44-3)
The unnecessary delay in ☐ presenting a charge / ☐ filing an information / ☐ bringing Defendant to trial is [dates and facts: ________________________________].

☐ G. Other Ground
Identify the authority, facts, and requested remedy: [________________________________].

IV. LEGAL ARGUMENT

A. 180-Day Speedy Trial Rule

Under SDCL § 23A-44-5.1(1)-(2), the 180-day period begins with the defendant's first appearance before a judicial officer on the charging instrument, subject to the new-trial and retrial starting points in subsection (3) and the exclusions in subsection (4). Subsection (4)(h) permits other delay only on a finding of good cause and says a motion for good cause need not be made within the 180-day period. If trial has not begun before the adjusted period expires, subsection (5) presumes prejudice. Dismissal with prejudice follows unless the prosecutor rebuts that presumption. The South Dakota Constitution separately guarantees the accused a speedy public trial. S.D. Const. art. VI, § 7.

[________________________________]

B. Statute of Limitations

SDCL § 23A-42-1 has no limitation for Class A, B, or C felonies. Section 23A-42-2 generally requires other prosecutions to commence within seven years of the offense, but § 23A-42-3 measures the seven years for forgery or theft from discovery and requires pleading and proof of delayed discovery if more than seven years elapsed before prosecution. Under § 23A-42-4, filing the complaint, information, or indictment commences prosecution. Apply the out-of-state rule in § 23A-42-5 and the determined-incompetence exclusion in § 23A-42-6 to the case's dates.

[________________________________]

C. Additional Grounds

[________________________________]

V. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. If the § 23A-44-5.1 ground is established and the State does not rebut presumed prejudice, dismiss the charged offense and any offense required by law to be joined with it, with prejudice;
2. Alternatively, dismiss the identified ☐ indictment / ☐ information or count(s) under § 23A-8-2, or grant dismissal on another ground established above, to the extent the applicable law permits;
3. Set a hearing if needed and grant any other relief the Court deems proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[ATTORNEY NAME], SD Bar No. [________________________________]
[LAW FIRM NAME]
[ADDRESS]
[CITY], South Dakota [ZIP CODE]
Telephone: [________________________________]
Email: [________________________________]

Attorney for Defendant [DEFENDANT FULL LEGAL NAME]

VI. CERTIFICATE OF SERVICE

I declare under penalty of perjury under the law of South Dakota that on [__/__/____], I served a true and correct copy of the foregoing on:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

Office of the State's Attorney
[________________________________] County
[ADDRESS]
[CITY], South Dakota [ZIP CODE]

Dated: [__/__/____]

________________________________________
[NAME OF DECLARANT]

SOUTH DAKOTA-SPECIFIC NOTES

• SDCL § 23A-44-5.1: Calculate the period after statutory exclusions. Subsection (4)(h) says a good-cause motion need not be filed within 180 days. Subsection (5) makes dismissal with prejudice conditional on the prosecutor's failure to rebut presumed prejudice.
• SDCL § 23A-8-2: Its listed dismissal grounds apply to an indictment or information, not a complaint.
• SDCL § 23A-42-1: No limitation for Class A, B, or C felonies.
• SDCL §§ 23A-42-2 and -3: The general seven-year period has a discovery rule for forgery and theft.
• SDCL § 23A-8-3: The listed defenses and objections must generally be raised before trial; lack of court jurisdiction or failure to charge an offense may be noticed during the proceedings.

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice. Consult a licensed South Dakota attorney before use.