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Rule 7. Proceedings before magistrate.

(a) When a summons is issued in lieu of a warrant of arrest, thedefendant shall appear before the court as directed in the summons.

(b) When any peace officer or other person makes an arrest with orwithout a warrant, the person arrested shall be taken to the nearest availablemagistrate for setting of bail. If an information has not been filed, one shallbe filed without delay before the magistrate having jurisdiction over theoffense.

(c)(1) In order to detain any person arrested without a warrant,as soon as is reasonably feasible but in no event longer than 24 hours afterthe arrest, a determination shall be made as to whether there is probable causeto continue to detain the arrestee. The determination may be made by anymagistrate, although if the arrestee is charged with a capital offense, themagistrate may not be a justice court judge. The arrestee need not be presentat the probable cause determination.

(c)(2) A written probable cause statement shall be presented tothe magistrate, although the statement may be verbally communicated bytelephone, telefaxed, or otherwise electronically transmitted to themagistrate.

(c)(2)(A) A statement which is verbally communicated by telephoneshall be reduced to a sworn written statement prior to submitting the probablecause issue to the magistrate for decision. The person reading the statement tothe magistrate shall verify to the magistrate that the person is reading thewritten statement verbatim, and shall write on the statement that person's nameand title, the date and time of the communication with the magistrate, and thedetermination the magistrate directs to be indicated on the statement.

(c)(2)(B) If a statement is verbally communicated bytelephone, telefaxed, or otherwise electronically transmitted, theoriginal statement shall, as soon as practicable, be filed with the court wherethe case will be filed.

(c)(3) The magistrate shall review the probable cause statementand from it determine whether there is probable cause to continue to detain thearrestee.

(c)(3)(A) If the magistrate finds there is not probable cause tocontinue to detain the arrestee, the magistrate shall order the immediaterelease of the arrestee.

(c)(3)(B) If the magistrate finds probable cause to continue todetain the arrestee, the magistrate shall immediately make a baildetermination. The bail determination shall coincide with the recommended bailamount in the Uniform Fine/Bail Schedule unless the magistrate findssubstantial cause to deviate from the Schedule.

(c)(4) If a probable cause statement is presented to themagistrate more than 24 hours after the arrest, the magistrate shall order therelease of the arrestee unless the probable cause statement establishes thatthe delay was caused by a bona fide emergency or other extraordinarycircumstances.

(c)(5) The presiding district court judge shall, in consultationwith the Justice Court Administrator, develop a rotation of magistrates whichassures availability of magistrates consistent with the need in that particulardistrict. The schedule shall take into account the case load of each of themagistrates, their location and their willingness to serve.

(c)(6) Nothing in this subsection (c) is intended to preclude theaccomplishment of other procedural processes at the time of the determinationreferred to in paragraph (c)(1) above.

(d)(1) If a person is arrested in a county other than where theoffense was committed the person arrested shall without unnecessary delay bereturned to the county where the crime was committed and shall be taken beforethe proper magistrate under these rules.

(d)(2) If for any reason the person arrested cannot be promptlyreturned to the county and the charge against the defendant is a misdemeanorfor which a voluntary forfeiture of bail may be entered as a conviction underSubsection 77-7-21(1), the person arrested may state in writing a desire toforfeit bail, waive trial in the district in which the information is pending,and consent to disposition of the case in the county in which the person wasarrested, is held, or is present.

(d)(3) Upon receipt of the defendant's statement, the clerk of thecourt in which the information is pending shall transmit the papers in theproceeding or copies of them to the clerk of the court for the county in whichthe defendant is arrested, held, or present. The prosecution shall continue inthat county.

(d)(4) Forfeited bail shall be returned to the jurisdiction thatissued the warrant.

(d)(5) If the defendant is charged with an offense other than amisdemeanor for which a voluntary forfeiture of bail may be entered as aconviction under Subsection 77-7-21(1), the defendant shall be taken withoutunnecessary delay before a magistrate within the county of arrest for thedetermination of bail under Section 77-20-1 and released on bail or heldwithout bail under Section 77-20-1.

(d)(6) Bail shall be returned to the magistrate havingjurisdiction over the offense, with the record made of the proceedings beforethe magistrate.

(e)The magistrate having jurisdiction over the offense chargedshall, upon the defendant's first appearance, inform the defendant:

(e)(1) of the charge in the information or indictment and furnisha copy;

(e)(2) of any affidavit or recorded testimony given in support ofthe information and how to obtain them;

(e)(3) of the right to retain counsel or have counsel appointed bythe court without expense if unable to obtain counsel;

(e)(4) of rights concerning pretrial release, including bail; and

(e)(5) that the defendant is not required to make any statement,and that the statements the defendant does make may be used against thedefendant in a court of law.

(f) The magistrate shall, after providing the information underparagraph (e) and before proceeding further, allow the defendant reasonabletime and opportunity to consult counsel and shall allow the defendant tocontact any attorney by any reasonable means, without delay and without fee.

(g) If the charge against the defendant is a class B or Cmisdemeanor, the magistrate shall call upon the defendant to enter a plea.

(g)(1) If the plea is guilty, the defendant shall be sentenced bythe magistrate as provided by law.

(g)(2) If the plea is not guilty, a trial date shall be set. Thedate may not be extended except for good cause shown. Trial shall be held underthese rules and law applicable to criminal cases.

(h)(1) If a defendant is charged with a felony or a class Amisdemeanor, the defendant shall be advised of the right to a preliminaryexamination. If the defendant waives the right to a preliminary examination,and the prosecuting attorney consents, the magistrate shall order the defendantbound over to answer in the district court.

(h)(2) If the defendant does not waive a preliminary examination,the magistrate shall schedule the preliminary examination. The examinationshall be held within a reasonable time, but not later than ten days if thedefendant is in custody for the offense charged and not later than 30 days ifthe defendant is not in custody. These time periods may be extended by themagistrate for good cause shown. A preliminary examination may not be held ifthe defendant is indicted.

(i)(1) Unless otherwise provided, a preliminary examination shallbe held under the rules and laws applicable to criminal cases tried before acourt. The state has the burden of proof and shall proceed first with its case.At the conclusion of the state's case, the defendant may testify under oath,call witnesses, and present evidence. The defendant may also cross-examineadverse witnesses.

(i)(2) If from the evidence a magistrate finds probable cause tobelieve that the crime charged has been committed and that the defendant hascommitted it, the magistrate shall order that the defendant be bound over toanswer in the district court. The findings of probable cause may be based onhearsay in whole or in part. Objections to evidence on the ground that it wasacquired by unlawful means are not properly raised at the preliminaryexamination.

(i)(3) If the magistrate does not find probable cause to believethat the crime charged has been committed or that the defendant committed it,the magistrate shall dismiss the information and discharge the defendant. Themagistrate may enter findings of fact, conclusions of law, and an order ofdismissal. The dismissal and discharge do not preclude the state frominstituting a subsequent prosecution for the same offense.

(j) At a preliminary examination, the magistrate, upon request ofeither party, may exclude witnesses from the courtroom and may requirewitnesses not to converse with each other until the preliminary examination isconcluded. On the request of either party, the magistrate may order allspectators to be excluded from the courtroom.

(k)(1) If the magistrate orders the defendant bound over to thedistrict court, the magistrate shall execute in writing a bind-over order andshall transmit to the clerk of the district court all pleadings in and recordsmade of the proceedings before the magistrate, including exhibits, recordings, andany typewritten transcript.

(k)(2) When a magistrate commits a defendant to the custody of thesheriff, the magistrate shall execute the appropriate commitment order.

(l)(1) When a magistrate has good cause to believe that anymaterial witness in a pending case will not appear and testify unless bond isrequired, the magistrate may fix a bond with or without sureties and in a sumconsidered adequate for the appearance of the witness.

(l)(2) If the witness fails or refuses to post the bond with theclerk of the court, the magistrate may issue a warrant and commit the witnessto jail until the witness complies or is otherwise legally discharged. If thewitness is arrested on a warrant issued by the magistrate, the custodialauthority shall notify the issuing magistrate before the end of the nextbusiness day, and the magistrate shall provide a hearing for the witness withinthree days or, upon a showing of good cause, within a reasonable period of timeafter being notified of the arrest.

(l)(3) If the witness does provide bond when required, the witnessmay be examined and cross-examined before the magistrate in the presence of thedefendant and the testimony shall be recorded. The witness shall then bedischarged.

(l)(4) If the witness is unavailable or fails to appear at anysubsequent hearing or trial when ordered to do so, the recorded testimony maybe used at the hearing or trial in lieu of the personal testimony of thewitness.

Advisory Committee Notes