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.
Notes of Decisions
Cited in
29
cases (
1 in the last 5 years), 1994–2024 · leading case:
State v. Fettig, 884 N.E.2d 341 (Ind. Ct. App. 2008).
State v. Fettig, 884 N.E.2d 341 (Ind. Ct. App. 2008).
· cites it 10× “See I.C. § 35-34-1-8. Moreover, when the law defining the rights of teachers to discipline students is considered, it is apparent that the trial court did not abuse its discretion by ultimately finding that Fettig's actions fell with in the bounds of her protection from…”
Ceaser v. State, 964 N.E.2d 911 (Ind. Ct. App. 2012).
· cites it 4× “The purpose of Indiana Code section 35-34-1-8, which governs the dismissal of charging informations, is to establish facts that aid in a determination of whether an offense has properly been charged against the defendant as a matter of law.”
Timothy L. Hahn v. State of Indiana, 67 N.E.3d 1071 (Ind. Ct. App. 2016).
· cites it 4× “Ind.Code § 35-34-1-8 governs motions to dismiss by a defendant and provides in part that “[t]he defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.”
Zitlaw v. State, 880 N.E.2d 724 (Ind. Ct. App. 2008).
· cites it 4× “See Ind.Code § 35-34-1-8. On appeal, the reviewing court will review a trial court's grant of a motion to dismiss an information for an abuse of discretion.”
Edward Gilliland v. State of Indiana, 979 N.E.2d 1049 (Ind. Ct. App. 2012).
· cites it 4× “at 6-7 (citing Ind. Code § 35-34-1-8 , which states, “A motion to dismiss an indictment or information under section 4 of this chapter shall be in writing.”
Stratton v. State, 791 N.E.2d 220 (Ind. Ct. App. 2003).
· cites it 4× “See I.C. § 35-34-1-8. It is a function of the prosecuting attorney to make certain that a person is not erroneously charged.”
State v. Isaacs, 794 N.E.2d 1120 (Ind. Ct. App. 2003).
· cites it 2× “Facts permitted to be raised under Section 35-34-1-8 typically concern only pre-trial matters.”
Harris v. State, 824 N.E.2d 432 (Ind. Ct. App. 2005).
· cites it 2× “Ind. Code § 35-34-1-8 (f). Thus, on appeal, the defendant is appealing from a negative judgment, and we will reverse the trial court's ruling only if the evidence is without conflict and leads inescapably to the conclusion that dismissal was proper.”
Benham v. State of Indiana, 637 N.E.2d 133 (Ind. 1994).
· cites it 2× “" Ind. Code § 35-34-1-8 (f). Because of the defendant's failure to establish that all of the charged criminal conduct necessarily occurred on the Kentucky side of the Indiana's southern territorial boundary so as to demonstrate a jurisdictional impediment to conviction, we…”
State of Indiana v. Yvonne S. Morgan, 60 N.E.3d 1121 (Ind. Ct. App. 2016).
· cites it 2× “[10] As mentioned, the basis of the trial court’s dismissal of all of the charges against Morgan was its conclusion that it was impossible for Morgan to have known, as a non-physician, whether her actions and those of Dr.”
State v. Gill, 949 N.E.2d 848 (Ind. Ct. App. 2011).
· cites it 2× “In the order dismissing the information, the trial court cited three grounds from Indiana Code section 35-34-l-4(a): the facts stated do not constitute an offense; there exists a jurisdictional impediment to the conviction of the defendant for the offense charged; and any other…”
State v. Virtue, 658 N.E.2d 605 (Ind. Ct. App. 1995).
· cites it 4× “In the instant case, in accordance with I.C. § 35-34-1-8(a), Virtue filed a motion to dismiss accompanied by a supporting memorandum in which he set forth two questions of law and various facts supporting a dismissal.”
Ind. Code § 35-34-1-8(1): 1 case
Ind. Code § 35-34-1-8(6): 1 case
Ind. Code § 35-34-1-8(F): 1 case
Ind. Code § 35-34-1-8(a): 4 cases
State v. Fettig, 884 N.E.2d 341 (Ind. Ct. App. 2008).
“See I.C. § 35-34-1-8. Moreover, when the law defining the rights of teachers to discipline students is considered, it is apparent that the trial court did not abuse its discretion by ultimately finding that Fettig's actions fell with in the bounds of her protection from…”
State v. Virtue, 658 N.E.2d 605 (Ind. Ct. App. 1995).
“In the instant case, in accordance with I.C. § 35-34-1-8(a), Virtue filed a motion to dismiss accompanied by a supporting memorandum in which he set forth two questions of law and various facts supporting a dismissal.”
Ind. Code § 35-34-1-8(c): 2 cases
State v. Virtue, 658 N.E.2d 605 (Ind. Ct. App. 1995).
“In the instant case, in accordance with I.C. § 35-34-1-8(a), Virtue filed a motion to dismiss accompanied by a supporting memorandum in which he set forth two questions of law and various facts supporting a dismissal.”
Ind. Code § 35-34-1-8(f): 4 cases
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