June 14, 1983

Mr. Roger Schiager 
City Attorney 
City of Sioux Falls 
Sioux Falls, South Dakota 57102

Official Opinion No. 83-24

Ability to Conduct Criminal Proceedings in a County Adjacent to The County Where The Alleged Crime Was Committed

Dear Mr. Schiager:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The city of Sioux Falls has expanded beyond Minnehaha County and into Lincoln County.  Not only is this a different county, but also a separate judicial circuit.  This creates some perplexing problems in the enforcement and prosecution of criminal laws due to the requirement of Article VI, Section 7 of the South Dakota Constitution

which gives an accused the right to a trial before a jury of the county or district in which the offense is alleged to have been committed.  The problem for Sioux Falls is mainly in transporting police officers from Sioux Falls to Canton, South Dakota, for all judicial proceedings on charges that have been filed on citations or investigations conducted by your officers. 

SDCL 23A-16-5 allows proceedings on other than 'issues of fact' to be 'heard and determined at any place in the judicial circuit in which is situated the county where the same is brought or pending.' As stated, Minnehaha and Lincoln County are in different circuits, and you therefore cannot take advantage of this provision. 

When a person is arrested for a criminal offense committed in the Lincoln County portion of Sioux Falls, that person may be taken to the Minnehaha County Jail and then to the Minnehaha County Magistrate since the law  specifies taking the person 'before the nearest available committing magistrate.'  See SDCL 23A-4-1.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Can all preliminary proceedings on a criminal or traffic offense committed in the City of Sioux Falls, Lincoln County, other than proceedings considering issues of fact, be heard in Sioux Falls, Minnehaha County, Second Judicial Circuit, without a change of venue?  For instance, could a Minnehaha County Magistrate take a guilty plea for such an offense? 

2.  Can legislation be enacted making it possible for an offense to be heard and tried in any county in which is situated the city in which the offense occurred without the necessity of a constitutional amendment?

IN RE QUESTION NO. 1:

The answer to your question is contained in SDCL 23A-17-1: 

A defendant arrested, held or present in a county other than that in which the indictment, information, or complaint is pending against him may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in  the county in which the indictment, information, or complaint is pending and to consent to disposition of the case in the county in which he was arrested, is held, or is present, subject to the approval of the prosecuting attorney for each county.  Upon receipt of the defendant's statement and of the written approval of the prosecuting attorney, the clerk of the court or the court in which the indictment, information, or complaint is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court or court for the county in which the defendant is held and the prosecution shall continue in that county.

The answer then is YES, if the provisions of the above statute are complied with.

IN RE QUESTION NO. 2:

Article VI, Section 7 of the South Dakota Constitution provides in part that 'In all criminal prosecutions the accused shall have the right to . . . a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.'  It is also provided in SDCL 23A-16-3 that 'The accused has the right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.'  The constitutional provision has been repeatedly affirmed by the  South Dakota Supreme Court.  See Croan v. State, 295 N.W.2d 728 (S.D. 1980); Violett v. State, 295 N.W. 2d 730 (S.D. 1980); Blindert v. State, 295 N.W. 2d 731 (S.D. 1980); State v. Graycek, 278 N.W.2d 184 (S.D. 1979); In re: Nelson, 19 S.D. 214, 102 N.W. 885 (1902). 

It is obvious from a reading of those cases that no statute could be promulgated which could circumvent the intent of Article VI, Section 7 of the South Dakota Constitution.  The answer to your question, therefore, is NO. A constitutional amendment would be needed before an offense could be tried in a county other than the county where the offense occurred but in which is situated the city in which the offense occurred.  This answer, of course, assumes that the defendant will not consent to such a disposition.

Respectfully submitted,

Mark V. Meierhenry
Attorney General