An Act to eliminate the right to a preliminary hearing when an offender is charged with a nonviolent felony and when the offender is out of custody.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 23A-4-3 be AMENDED:
23A-4-3.
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,
if applicable.
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
must 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
Class A, Class B, Class C, Class 1, Class 2, or Class 3
felony.
If a defendant is charged with a Class 4, Class 5, or Class 6 felony,
the defendant is entitled to a preliminary hearing if:
(1) The offense requires a mandatory minimum term of incarceration;
(2) The offense is a crime of violence as defined in subdivision 22-1-2(9);
(3) The offense is a sexual offense under chapter 22-22 or 22-24; or
(4) The defendant is in custody for the offense for which the preliminary hearing is ordered. By motion of either party, the court must vacate the preliminary hearing upon a showing that the defendant has been released from custody prior to the preliminary hearing.
If the
offense charged is a felony and the
defendant waives the preliminary hearing, the committing magistrate
shall forthwith
must 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
must 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
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.
Section 2. That 23A-6-3 be AMENDED:
23A-6-3.
An information may
be filed without a preliminary hearing against a fugitive from
justice.
No other information may be filed against any person for any felony
until that person has had a preliminary hearing, unless that person
waived his or her right to a preliminary hearing. All informations
shall
or any offender charged with a Class 4, Class 5, or Class 6 felony
who is not entitled to a preliminary hearing under 23A-4-3.
An information must
be filed with the court having jurisdiction of the offense by the
prosecuting attorney prior to arraignment.