Motion to dismiss by defendant; requisites; affidavits;
documentary evidence; hearing; disposition; procedures
Sec. 8. (a) A motion to dismiss an indictment or information
under section 4 of this chapter shall be in writing. The prosecutor
must be given reasonable notice of a motion to dismiss. If the motion
is expressly or impliedly based upon the existence or occurrence of
facts, the motion shall be accompanied by affidavits containing
sworn allegations of these facts. The sworn allegations may be based
upon personal knowledge of the affiant or upon information and
belief, provided that in the latter event the affiant discloses the
sources of the information and the grounds for the belief. If the
motion is expressly or impliedly based upon the existence of any
question of law, the motion shall be accompanied by a memorandum
stating specifically the legal question in issue. The defendant may
also submit documentary evidence tending to support the allegations
of the motion.
(b) The prosecutor may:
(1) file with the court an answer denying or admitting any or all
of the allegations of the motion; and
(2) submit documentary evidence tending to refute the
allegations.
(c) After all papers of both parties have been filed, and after all
documentary evidence has been submitted, the court shall determine
whether, under subsections (d) and (e) of this section, a hearing is
necessary to resolve questions of fact.
(d) The court shall grant the motion without conducting a hearing
only if:
(1) the motion alleges a ground constituting a legal basis for the
motion under section 4 of this chapter;
(2) the ground, if expressly or impliedly based upon the
existence or occurrence of facts, is supported by sworn
allegations of all facts essential to support the motion; and
(3) the sworn allegations of fact essential to support the motion
are admitted as true by the prosecutor or are conclusively
established by documentary evidence.
(e) The court may deny the motion without conducting a hearing
only if:
(1) the motion does not allege a ground constituting a legal
basis for the motion under section 4 of this chapter;
(2) the motion is expressly or impliedly based upon the
existence or occurrence of facts, and the motion does not
contain sworn allegations supporting all the essential facts; or
(3) an allegation of fact essential to support the motion is
conclusively refuted by documentary evidence.
(f) If a hearing is necessary to resolve questions of fact, the court
shall conduct a hearing and make findings of fact essential to the
determination of the motion. The defendant has a right to be present
and represented by counsel at the hearing but may waive this right.
The defendant has the burden of proving by a preponderance of the
evidence every fact essential to support the motion.
As added by Acts 1981, P.L.298, SEC.3.
Last modified: May 24, 2006