State v. Litschewski, 807 N.W.2d 230

In 1997, Litschewski was convicted by a jury of three offenses: Count II third-degree rape (1989), Count I first-degree rape (1991), and Count III sexual contact with a child (1996).
The circuit court sentenced Count I to 7.5 years, Count II to 12.5 years, and Count III to 7.5 years; it ordered Count II to run consecutive to Count I and Count III to run consecutive to Counts I and II.
Litschewski appealed the conviction; this Court affirmed the convictions.
In 2010, he moved to vacate or modify an illegal sentence, arguing the court lacked authority to make Count II run consecutive to Count I because Count II occurred first in time.
The circuit court denied the motion; Litschewski timely appealed, challenging both timeliness and the legality of the consecutive sentence under the then-applicable SDCL 22-6-6.1.
The Court held the appeal timely because the denial was an order, not a judgment, and remanded to address the illegal-consecutive-sentence issue under the 1983 amended version of SDCL 22-6-6.1 which governed sentencing at the time of Litschewski’s 1997 sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal from the denial	Litschewski argues the appeal was timely because the decision was an order, not a judgment.	State agrees timeliness if the decision is an order.	Timely; decision treated as an order, triggering a 30-day window from notice.
Authority to impose consecutive sentence for a prior offense	Count II (1989) should not be consecutive to Count I (1991) because it occurred first in time under the 1983 SDCL 22-6-6.1.	The statutorily broad grant allowed consecutive sentences for offenses and offenses; combinable with the later offense.	Unlawful; under the 1983 amended SDCL 22-6-6.1, a consecutive sentence could not be imposed for a prior offense; reverse and remand.

State v. Goulding, 2011 S.D. 25, 799 N.W.2d 412 (S.D. 2011) (timeliness and jurisdiction under SDCL 23A-32-15; order vs judgment distinction)
State v. Arguello, 1996 S.D. 57, 548 N.W.2d 463 (S.D. 1996) (interpretation of SDCL 22-6-6.1; subsequent offense concept)
State v. Meyers, 1997 S.D. 115, 571 N.W.2d 847 (S.D. 1997) (application of 1983 amendment to SDCL 22-6-6.1 regarding consecutive sentences)
State v. Perovich, 2001 S.D. 96, 632 N.W.2d 12 (S.D. 2001) (consecutive sentences under 1983 amendment; interpretation of limitations)
State v. Sieler, 1996 S.D. 114, 554 N.W.2d 477 (S.D. 1996) (consecutive sentences for crimes within same time frame; limits under prior rule)
In Iverson, State v. Iverson, 269 N.W.2d 390 (S.D. 1978) (final judgment vs order timing for notices of appeal (historical precedence))