*1 duck, it and looks like a quacks like a duck duck; notwithstanding whatever
must be a subsequent legis- hung on it
moniker is
lature. merits, decided on the
If a case can be consistently deciding deferred from
court has issue. Sheehan v. United
a constitutional Co., Ins.
Pacific Bank the Black v. First Nat. Baldwin Hills, House Seagram, Drug Assam Inc. v. The constitu- only be decided if the trial
tional issue need be that
court’s factual determination would lottery poker
video and video are thing. conclusion, I would remand this matter genuine trial court so the issue of in this case can be
material fact which exists upon.
ruled HAFNER, Petitioner
Richard Appellant, LEAPLEY, of the South
Walter Warden Penitentiary,
Dakota and Dan Ja
cobson, Chairman of the South Dakota Paroles, Appel
Board of Pardons
lees.
No. 18371-a. Falls, Eirinberg, peti- James A. Sioux Supreme Court of South Dakota. appellant. tioner and Considered on Briefs Jan. Barnett, Gen., Atty. E. Mark Frank Gen., Pierre, Geaghan, Atty. appel- July Asst.
lees.
SABERS, Justice. appeals
Richard Hafner an order a writ of habeas We affirm. FACTS plea bargain, pled Pursuant to a guilty degree rape. to one count second *2 underlying petition facts will not detail the Hafner then filed a new We writ of rape perti- because are not corpus. conviction habeas Rather rehear the en- In matter, nent to the issues on return for Judge tire Erickson issued an order guilty plea, prosecution agreed Hafner’s 20, vacating his November 1992 order and rape charges. to dismiss numerous other quashing entered a new order the writ. This complied time Hafner with SDCL 21-27-18.1 16, 1989, Judge March Timm On Robert timely appeal. and initiated a years sentenced Hafner to thirteen 5, 1989, penitentiary. September On Hafner filed a “Petition for Modification of Sentence” DECISION requested he of his juris State contends this Court lacks “upon conditions that include con- appeal entertain this outpatient
tinued
treatment and such other
claims the trial court could not vacate its
premises.”
conditions as are called for in the
order and issue the new order. Under
Judge Timm considered Hafner’s motion
6—60(b),
may grant
SDCL
a court
relief
15—
13, 1989,
and on November
entered an
judgment
“mistake, inadvertence,
from a
suspended eight
amended order in which he
surprise,
neglect,”
or
“[a]ny
excusable
or
oth
years
year
of the thirteen
sentence on condi-
justifying
er reason
operation
relief from the
tion that:
judgment.”
of the
1. Hafner have no direct contact with the
victim.
opinion,
In his memorandum
2. Hafner reimburse the victim for
judge accepted
party
the fault for neither
arising
and future
services
knowing
quashing
that an order
the writ had
out of the offense.
stated,
judge
been entered. The trial
“It
“pay
to
Hafher
the Board of
impossible
strikes the Court that it is
to file a
Codington County
Commissioners of
probable
motion for a certificate of
cause
($8,000.00)
sum of five thousand
dollars
thirty days
judg-
of the
of the
compensation
to be used as
for the Cod-
if
ment
the Petitioner is unaware
ington County victim/[witness] assis-
explained
has been filed.” He further
tant.”
vacating
he was
order to
“[i]n
prison
Hafner was
from
released
on Janu-
problem.”
correct this
ary
parole
from the terms of the
judge clearly
The trial
identified either
February
amended
sentence.
Haf-
jus-
neglect”
“any
“excusable
other reason
petition
corpus.
ner filed a
for writ of habeas
tifying
operation
judg-
relief from the
of the
Judge
presided
Jon Erickson
over the habe-
support
ment” in
of his decision to vacate the
corpus proceedings
as
and on November
judgment. He then entered a new order and
1992 entered an order
the writ of
perfected
appeal
properly
Apparently,
neither
jurisdiction.1 Having
invoked this Court’s
nor Hafner was aware that an order
jurisdiction
concluded that this
Court has
result,
had been entered. As a
Hafner did
appeal,
may proceed
entertain this
we
probable
not file a
for certificate of
address the merits.
thirty days
entry
required
cause within
as
Judge
SDCL 21-27-18.1.
Erickson is-
Hafner contends the trial court had
probable
despite
sued a certificate of
cause
$5,000
him
untimely
no
order
appealed.
Hafner’s
motion. Hafner
appeal
dismissed the
lack
subject
jurisdiction
county
arguing,
victim
Haf-
matter
so
because Hafner
$5,000
satisfy
jurisdictional
erroneously
had failed to
re-
ner
assumes the
was “res
quirements
governed by
titution”
SDCL 21-27-18.1.
restitution statutes
tence,
argues
prison
1. State also
that this
is moot. The
he
be returned to
to serve
Accordingly,
trial court
out the rest of his term.
sen-
validity
suspend-
tence on certain conditions.
If Hafner violates
of the
of the conditions of the
of the conditions of his
sen-
ed sentence is not moot.
Hafner’s as- witness
ch. 23A-28.2
fees
state
found at SDCL
$5,000
sumption
because the
even
the witness fee statute
not
is erroneous
did
rather,
at-
condition
authorize
a fee. This court held that:
tached to a
sentence.
a matter of favor
“Probation is
and to
*3
provides:
accomplish
purpose
SDCL 23A-27-18
the
of the statute an
exceptional
flexibility
degree of
is essen-
conviction,
having juris-
the court
Upon
costs, however,
...
tial.
Those
should not
may suspend
try the offense
the
during
be excessive.” Even
SDCL 19-5-1
imposed
execution of
behavior,
appears
payment of
good
subject to
to forbid
witness fees
such conditions
state,
flexibility
may impose.
the
as the court
restitutions
probation
order or
inherent
in
allows
[the
statute]
The
payment
only by the court in which the con-
such
if not excessive. We do not
made
occurred,
added).
(emphasis
viction
believe the fee here is excessive.
impose
The
is
court’s
conditions
also,
Jackson,
Id. at
State v.
272
878-79. See
only
that
to the extent
the conditions
limited
(S.D.1978).
N.W.2d 102
legal.
Eagle
must be reasonable and
White
As with probation:
(S.D.1979).3
v.
659
280 N.W.2d
imposition
granting
suspended
[t]he
imposition of conditions
The
more strin-
strictly
sentence ...
a matter of
gent
applicable
in
than authorized
statutes
solely
and rests
within the discretion of the
Long,
was
in
v.
State
right
court.
It is not a matter
or enti-
(1971)
185
and
N.W.2d 472
several subse-
tlement
of that
and the exercise
discretion
quent
Long,
the
was
cases.
defendant
includes the
of conditions. Fur-
sentence,
given
proba-
ther,
only
the
on what
limitation
conditions
tion,
and ordered to
certain court costs.
may
they
be imposed
legal
are that
be
and
Long
argued
appealed and
that
the court
Marshall,
reasonable.
State
v.
247
by
costs
the
assessed
exceeded
(S.D.1976); Application
N.W.2d 484
governing
the
amount allowed under
statute
Jerrel,
77
93
614
S.D.
they
held that
costs. This Court
Eagle,
also,
at 660.
See
were
conditions of
ordered as
the
Bell,
v.
State
specially concur. *4 have been addressed direct since AMUNDSON, (concurring special- Justice corpus cannot be used as a substitute ty)- Solem, direct Goodroad question There is no Hafner received a Whether Hafner has lenient sentence from the trial court more deprived rights been basic constitutional his for sentence modifica after if and Hafner is incar- reviewed when precedent of this court is that tion. failing comply cerated with this condi- sen tion/restitution. and should not tences should be reasonable I am authorized to state that Justice payments. Rip excessive joins special in this concur- HENDERSON perger, rence. Eagle v. The trial court’s Amended Sentence re-
quires Hafner to the Board County Codington Commissioners used as to be
Codington victim/assistance being responsi- is in addition to Hafner reimbursing the victim for
ble counseling future services. The record does EXCHANGE; STOCKMEN’S LIVESTOCK $5,000.00 payment when this not disclose Auction; Live- Kist Livestock Western payable Does it due. Is installments? Inc.; Myers, individually, stock Jane accrue interest? How did the Estate of and as Executrix of James ability Hafner had determine Appellees, Myers, Plaintiffs and payments amount? Should precedent over the amount the victim take And, County? hap- owed to what THOMPSON, Tommy Thompson, Ted ability to pens if Hafner does not have the Thompson Company and Livestock St. payments? certainly appears make these It Auction, Inc., Onge Defen- Livestock Hafner received from the trial Appellants. dants position has he court but been 18356, 18357, 18358 and 18360. Nos. opportunity to fail is almost a
where the many certainty. presents too This record Supreme Dakota. South questions with no answers. April on Briefs Considered restitution, Admittedly just this is not restitution, like Aug. suspended sen- condition of the amended trial courts tence. “reasonably to see if a defendant is able
look - 23A-28-1 and to make” restitution. SDCL provides plan for a
4. Also SDCL 23A-28-5