Indiana § 35-34-1-8 - Motion to dismiss by defendant; requisites; affidavits; documentary evidence; hearing; disposition; procedures

§ 35-34-1-8. 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.