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Indiana Code - Criminal Law and Procedure - Title 35, Section 35-34-1-4

Legal Research Home > Indiana Law > Criminal Law and Procedure > Indiana Code - Criminal Law and Procedure - Title 35, Section 35-34-1-4

Motion to dismiss by defendant; grounds; requisites; disposition;
effect of order

Sec. 4. (a) The court may, upon motion of the defendant, dismiss
the indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, is
defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of
allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense
with sufficient certainty.

(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense
charged.
(7) The prosecution is barred by reason of a previous
prosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been denied the right to a speedy trial.
(10) There exists some jurisdictional impediment to conviction
of the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter
of law.
(b) Except as otherwise provided, a motion under this section
shall be made no later than:
(1) twenty (20) days if the defendant is charged with a felony;
or
(2) ten (10) days if the defendant is charged only with one (1)
or more misdemeanors;
prior to the omnibus date. A motion made thereafter may be
summarily denied if based upon a ground specified in subdivision
(a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. A motion to
dismiss based upon a ground specified in subdivision (a)(6), (a)(7),
(a)(8), (a)(9), (a)(10), or (a)(11) of this section may be made or
renewed at any time before or during trial. A motion to dismiss based
upon lack of jurisdiction over the subject matter may be made at any
time.
(c) Upon the motion to dismiss, a defendant who is in a position
adequately to raise more than one (1) ground in support thereof shall
raise every ground upon which he intends to challenge the indictment
or information. A subsequent motion based upon a ground not
properly raised may be summarily denied. However, the court, in the
interest of justice and for good cause shown, may entertain and
dispose of such a motion on the merits.
(d) Upon the motion to dismiss, the court shall:
(1) overrule the motion to dismiss;
(2) grant the motion to dismiss and discharge the defendant; or
(3) grant the motion to dismiss and deny discharge of the
defendant if the court determines that the indictment or
information may be cured by amendment under section 5 of this
chapter and the prosecuting attorney has moved for leave to
amend.

If the court grants the motion under subdivision (3) and grants the
prosecuting attorney leave to amend, any prior order imposing
conditions of release pending trial shall stand unless otherwise
modified or removed by order of the court.
(e) If the court grants a motion under subsection (a)(3) and the
prosecuting attorney informs the court on the record that the charges
will be refiled within seventy-two (72) hours by information:
(1) the court may not discharge the defendant; and
(2) any prior order concerning release pending trial remains in
force unless it is modified or removed by the court.

(f) An order of dismissal does not, of itself, constitute a bar to a
subsequent prosecution of the same crime or crimes except as
otherwise provided by law.

As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.20; P.L.320-1983, SEC.12.

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Last modified: May 25, 2006