Indiana Code

Ind. Code § 35-34-1-4 (2026)

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

✓ current as of May 2026

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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.

Notes of Decisions

Cited in 122 cases (12 in the last 5 years), 1984–2025 · leading case: Allen v. State, 798 N.E.2d 490 (Ind. Ct. App. 2003).

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Allen v. State, 798 N.E.2d 490 (Ind. Ct. App. 2003). · cites it 8× “§ 35-34-1-6 (West 1998); I.C. § 35-34-1-4 (West 1998); see also Rhinehardt v.”

Bei Bei Shuai v. State, 966 N.E.2d 619 (Ind. Ct. App. 2012). · cites it 10× “[9] Ind.Code § 35-34-1-4(a)(5) allows the trial court to dismiss the charges against a defendant if the "facts stated do not constitute an offense.”

Ceaser v. State, 964 N.E.2d 911 (Ind. Ct. App. 2012). · cites it 8× “Though the State cross-examined Ceaser, due to a failure to timely file a witness list, the State did not offer evidence to rebut Ceaser’s testimony.”

Terry v. State, 465 N.E.2d 1085 (Ind. 1984). · cites it 4× “Ind. Code § 35-34-1-4 [Burns 1983 Supp.] provides motions for dismissal, based upon a defective *1087 information, must be filed twenty days prior to the omnibus date.”

Townsend v. State, 632 N.E.2d 727 (Ind. 1994). · cites it 4× “This restriction is imposed by the Indiana statute that governs indictments and informations, I.”

Habibzadah v. State, 904 N.E.2d 367 (Ind. Ct. App. 2009). · cites it 6× “The court also recognized the statutory authority to dismiss provided by Indiana Code Section 35-34-1-4. In addressing this statute, the Davis court observed, "the open ended catchall provision of subsection (a)(11)[ [1] ] is recognition that there may be additional reasons for…”

Edward Gilliland v. State of Indiana, 979 N.E.2d 1049 (Ind. Ct. App. 2012). · cites it 6× “) Therefore, in accordance with Indiana Code 35-34-1-4(a)(8), (d)(3) and (e), the State shall have 72 hours from the date of this Order to amend the charging information to comply with the Statute of Limitations, otherwise these charges shall be dismissed.”

Delagrange v. State, 951 N.E.2d 593 (Ind. Ct. App. 2011). · cites it 4× “DISCUSSION AND DECISION Indiana Code section 35-34-1-4(a) (1983) provides, in relevant part, "[t]he court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds .”

An-Hung Yao & Yu-Ting Lin v. State of Indiana, 975 N.E.2d 1273 (Ind. 2012). · cites it 4× “See I.C. § 35-34-1-4. The Defendants here set forth two grounds for dismissal of the charges: one, dismissal is proper because “[t]he facts stated do not constitute an offense,” I.”

Shawn McBride v. State of Indiana, 94 N.E.3d 703 (Ind. Ct. App. 2018). · cites it 8× “[15] The State argues that McBride's constitutional claims are waived because he did not bring the challenge through a pretrial motion as provided by Ind. Code § 35-34-1-4 . 2 The State acknowledges that courts have occasionally overlooked this procedural bar and addressed…”

Wiggins v. State, 727 N.E.2d 1 (Ind. Ct. App. 2000). · cites it 6× “§ 35-34-1-6 (West 1998); IC § 35-34-1-4 (West 1998); Rhinehardt v.”

Kindred v. State, 524 N.E.2d 279 (Ind. 1988). · cites it 4× “Defendant moved to dismiss the charges pursuant to Ind.Code § 35-34-1-4(a)(11) because the information 1) failed to allege a defrauded party, and 2) did not specifically designate which counts were based on the making and uttering of which instrument.”

Show all 122 citing cases →

— Ind. Code § 35-34-1-4(2) — 1 case

Perkins v. State, 812 N.E.2d 836 (Ind. Ct. App. 2004).

— Ind. Code § 35-34-1-4(5) — 1 case

State v. Fettig, 884 N.E.2d 341 (Ind. Ct. App. 2008).

— Ind. Code § 35-34-1-4(a) — 7 cases

Delagrange v. State, 951 N.E.2d 593 (Ind. Ct. App. 2011). “DISCUSSION AND DECISION Indiana Code section 35-34-1-4(a) (1983) provides, in relevant part, "[t]he court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds .”

Johnson v. State, 749 N.E.2d 1103 (Ind. 2001).

DeWhitt v. State, 829 N.E.2d 1055 (Ind. Ct. App. 2005).

Abbott v. State, 950 N.E.2d 357 (Ind. Ct. App. 2011).

Starlon Lewis v. State of Indiana (mem. dec.) (Ind. Ct. App. 2016).

— Ind. Code § 35-34-1-4(a)(1) — 6 cases

Neff v. State, 915 N.E.2d 1026 (Ind. Ct. App. 2009).

Bei Bei Shuai v. State, 966 N.E.2d 619 (Ind. Ct. App. 2012). “[9] Ind.Code § 35-34-1-4(a)(5) allows the trial court to dismiss the charges against a defendant if the "facts stated do not constitute an offense.”

Brittain v. State, 565 N.E.2d 757 (Ind. Ct. App. 1991).

Kelli Anderson v. State of Indiana (Ind. Ct. App. 2024).

Juwan Jones v. State of Indiana (mem. dec.) (Ind. Ct. App. 2016).

— Ind. Code § 35-34-1-4(a)(10) — 2 cases

An-Hung Yao & Yu-Ting Lin v. State of Indiana, 975 N.E.2d 1273 (Ind. 2012). “See I.C. § 35-34-1-4. The Defendants here set forth two grounds for dismissal of the charges: one, dismissal is proper because “[t]he facts stated do not constitute an offense,” I.”

State of Indiana v. BH (Ind. 2025).

— Ind. Code § 35-34-1-4(a)(11) — 7 cases

Habibzadah v. State, 904 N.E.2d 367 (Ind. Ct. App. 2009). “The court also recognized the statutory authority to dismiss provided by Indiana Code Section 35-34-1-4. In addressing this statute, the Davis court observed, "the open ended catchall provision of subsection (a)(11)[ [1] ] is recognition that there may be additional reasons for…”

Kindred v. State, 524 N.E.2d 279 (Ind. 1988). “Defendant moved to dismiss the charges pursuant to Ind.Code § 35-34-1-4(a)(11) because the information 1) failed to allege a defrauded party, and 2) did not specifically designate which counts were based on the making and uttering of which instrument.”

Azania v. State, 730 N.E.2d 646 (Ind. 2000).

State v. DMZ, 674 N.E.2d 585 (Ind. Ct. App. 1996).

Lavern Ceaser v. State of Indiana (Ind. Ct. App. 2012).

— Ind. Code § 35-34-1-4(a)(2) — 1 case

Townsend v. State, 632 N.E.2d 727 (Ind. 1994). “This restriction is imposed by the Indiana statute that governs indictments and informations, I.”

— Ind. Code § 35-34-1-4(a)(22) — 1 case

Stratton v. State, 791 N.E.2d 220 (Ind. Ct. App. 2003).

— Ind. Code § 35-34-1-4(a)(3) — 1 case

Kelli Anderson v. State of Indiana (Ind. Ct. App. 2024).

— Ind. Code § 35-34-1-4(a)(4) — 1 case

Laney v. State, 868 N.E.2d 561 (Ind. Ct. App. 2007).

— Ind. Code § 35-34-1-4(a)(5) — 16 cases

Ceaser v. State, 964 N.E.2d 911 (Ind. Ct. App. 2012). “Though the State cross-examined Ceaser, due to a failure to timely file a witness list, the State did not offer evidence to rebut Ceaser’s testimony.”

State v. Isaacs, 794 N.E.2d 1120 (Ind. Ct. App. 2003).

State v. Kemp, 753 N.E.2d 47 (Ind. Ct. App. 2001).

Anthony P. Sharp, Jr. v. State of Indiana, 16 N.E.3d 470 (Ind. Ct. App. 2014).

— Ind. Code § 35-34-1-4(a)(6) — 2 cases

State of Indiana v. Eastlund B. Wendell (mem. dec.) (Ind. Ct. App. 2019).

— Ind. Code § 35-34-1-4(a)(7) — 2 cases

Johann Schmidt v. State of Indiana, 986 N.E.2d 857 (Ind. Ct. App. 2013).

Bryant Dowdy v. State of Indiana (mem. dec.) (Ind. Ct. App. 2020).

— Ind. Code § 35-34-1-4(a)(8) — 1 case

Edward Gilliland v. State of Indiana, 979 N.E.2d 1049 (Ind. Ct. App. 2012). “) Therefore, in accordance with Indiana Code 35-34-1-4(a)(8), (d)(3) and (e), the State shall have 72 hours from the date of this Order to amend the charging information to comply with the Statute of Limitations, otherwise these charges shall be dismissed.”

— Ind. Code § 35-34-1-4(a)(ll) — 2 cases

State v. D.M.Z., 674 N.E.2d 585 (Ind. Ct. App. 1996).

— Ind. Code § 35-34-1-4(b) — 8 cases

Payne v. State, 484 N.E.2d 16 (Ind. 1985).

Matlock v. State, 944 N.E.2d 936 (Ind. Ct. App. 2011).

An-hung Yao v. State, 953 N.E.2d 1236 (Ind. Ct. App. 2011).

Hall v. State, 482 N.E.2d 1185 (Ind. Ct. App. 1985).

Starlon Lewis v. State of Indiana (mem. dec.) (Ind. Ct. App. 2016).

— Ind. Code § 35-34-1-4(b)(1) — 7 cases

Wendell Brown a/k/a Menes Ankh El v. State of Indiana, 64 N.E.3d 1219 (Ind. Ct. App. 2016).

Foster v. State, 526 N.E.2d 696 (Ind. 1988).

DeWhitt v. State, 829 N.E.2d 1055 (Ind. Ct. App. 2005).

Zavesky v. State, 558 N.E.2d 1124 (Ind. Ct. App. 1990).

Juwan Jones v. State of Indiana (mem. dec.) (Ind. Ct. App. 2016).

— Ind. Code § 35-34-1-4(b)(2) — 3 cases

Matlock v. State, 944 N.E.2d 936 (Ind. Ct. App. 2011).

Azania v. State, 730 N.E.2d 646 (Ind. 2000).

Brittain v. State, 565 N.E.2d 757 (Ind. Ct. App. 1991).

— Ind. Code § 35-34-1-4(c) — 4 cases

Allen v. State, 798 N.E.2d 490 (Ind. Ct. App. 2003). “§ 35-34-1-6 (West 1998); I.C. § 35-34-1-4 (West 1998); see also Rhinehardt v.”

Azania v. State, 730 N.E.2d 646 (Ind. 2000).

Wiggins v. State, 727 N.E.2d 1 (Ind. Ct. App. 2000). “§ 35-34-1-6 (West 1998); IC § 35-34-1-4 (West 1998); Rhinehardt v.”

— Ind. Code § 35-34-1-4(d) — 3 cases

Reeves v. State, 938 N.E.2d 10 (Ind. Ct. App. 2010).

May v. State, 793 N.E.2d 1157 (Ind. Ct. App. 2003).

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