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Accused of a Crime in South Dakota

Similar criminal procedures exist in all states but there are some differences affecting bail, release, pretrial hearing and trial. A brief introduction to South Dakota's criminal processing system is presented in this article.

When Arrested

An arrest can be made by an arrest warrant issued by a court or if an officer has probable cause that a person committed a criminal offense. A misdemeanor defendant can only be arrested if the offense was committed in the officer's presence.

Along with your right to an attorney during any questioning by police or prosecutor, you have the right to remain silent. You also must be told that anything you say may be used against you and that an attorney will be appointed if you cannot afford one. These are your Miranda rights.

After arrest, you will be brought to a booking facility to be photographed and fingerprinted. You will be asked for identification, and your personal effects will be seized and inventoried. You will have access to a phone to make bail arrangements, if possible. If in custody, you must appear for an arraignment within 48 hours.

Posting Bail and Getting Released

If bail is set, you can be released by posting a cash bond for the entire amount, securing a bond upon payment to a bond agent of 10 percent of the amount and pledging security up to value of the bail, or having a person co-sign a pledge without the need for collateral if he or she is working and owns or rents a residence in the same area.

For serious offenses, bail is based on the offense, defendant's criminal history and record of non-appearances, community connections and risk of danger to the community.

Initial Appearance and Arraignment

At the initial appearance, defendants are informed by the magistrate of the complaint, their right to counsel and right to a preliminary hearing if a felony or Class 1 misdemeanor. For less serious matters, any one of the following pleas are made:

  • Guilty — You are admitting your guilt.
  • Not guilty — You are challenging the charges. This gives you time to negotiate a plea or prepare a defense.
  • No contest — You are not disputing the charges. The court must approve this plea. The plea cannot be evidence in a civil lawsuit against the defendant.

Negotiating a Plea

Most criminal cases are resolved by a plea negotiation between defendants or their counsel and prosecutor to plead to the charges or a lesser offense. The prosecutor will dismiss other charges, agree not to oppose a particular sentence or agree to a specific one, and inform victims if the offense was a violent one or other particular crime.

Right to a Preliminary Hearing/Grand Jury

In felony and Class 1 misdemeanors, the preliminary hearing, or probable cause determination, must be held within 15 days of the initial appearance if the defendant is in custody or 45 days if released. If a grand jury indictment is issued, no preliminary hearing is held.

Grand juries are only held in cases of public offenses or misconduct in public office and is optional.

Trial Procedures/Sentencing Issues

Felony trials and Class 1 cases are held in Circuit Court and are either jury trials of 12 or a court or bench trial if a jury trial is waived. The parties may stipulate to less than 12 jurors. An unanimous verdict is required for conviction.

For misdemeanor offense where there is no jail time, defendants are only entitled to bench trials.

Lower-level misdemeanor defendants are usually sentenced immediately once a guilty verdict is obtained. For felonies and Class 1 misdemeanors, a judge can order a pre-sentence investigation report. The report will consider a defendant's criminal history, mental health or drug history, family and job history, and other factors that will best serve the community and defendant.

Hire a Criminal Attorney

Getting a lawyer at your earliest opportunity is in your best interests. Be aware that court procedures in each state are not always the same, so consult with a South Dakota criminal defense attorney if facing criminal charges.

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