Honomichl v. State
333 N.W.2d 797
S.D.
1983
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*1 HONOMICHL, Lee Ronald Appellant,

STATE South Appellee.

Supreme Court of Dakota. South

Argued Feb. April

Rehearing May Denied Falls, Stickney,

Paul D. Sioux for defend- ant appellant. Kludt, Gen., Pierre,

Douglas Atty. Asst. plaintiff appellee; Mark V. Meier- Atkinson, Gen. henry, Atty. and Judith A. Gen., Pierre, Atty. Asst. on brief. HENDERSON, Justice. PROCEDURAL HISTORY/FACTS stems from issued appel- lant 23, 1981, in County, Minnehaha Dakota, for driving intoxicated while 32-23-1(2).

(DWI) in violation of SDCL Appellant, representation by coun- sel, entered in magistrate court which resulted his conviction sentence on each twenty-five of a one hundred dollar incarceration, plus days lat- thirty suspended on the condition that appel- fines; lant: attend DWI pay school; 3) no violation of his work *2 agree Both that a dispute. parties with the Dakota without 4) cooperate permit; months; 5) have Council for six Safety mat- must driving offense for one no alcohol-related a jurisdiction may ter before it act on crimi- meet failed to his year. nal Constitution charge. Our South Dakota n thus, warrants were is- obligations; bench provides: in sued for his arrest. for a person No shall be held criminal September chargea- DWI Appellant’s or presentment on the in- offense unless felony due his two ble as a Class 6 grand jury, or information dictment DWI convictions. On No- previous May prosecutor, except cases public filed appellant vember cognizable impeachment, by cases to vacate set magistrate court a motion courts, by justices peace, county Appel- aside the army arising and in cases correctly motion asserted that infor- lant’s in the militia when in actual navy, or by the on mations were not filed public danger: in time of war or service facts Undisputed offense. include: either provided, grand jury be were pleas entered af- appellant’s guilty (Emphasis law. by or abolished modified rights, being fully ter advised of includ- added.) hearing; ing preliminary Appellant’s May DWI were filed for each violat- offense; 3) 32-23-1 were 1 misdemean- Class did not re- voluntarily; 4) appellant required ors. informations were 23A-34-1. After ing, appellant’s motion istrate’s stipulation his ary quest preliminary ruling Appellant appealed action to the briefing hearing. circuit court and was set was denied on Janu- pursuant and oral After a hear- as to SDCL one for argu- mag- by vant portion, pursuant cuted Every public offense must signed by to SDCL an indictment or provides: 23A-6-1 prosecuting by which, an informa attorney in rele- prose ment, relief was appellant’s post-conviction Without formal and sufficient Findings denied on of fact July information, a court does indictment or and conclusions of law were entered. The acquire subject thus had court found that informations not been an not be for a crime. punished accused and then it had filed concluded States, Albrecht v. United 273 U.S. filed applica- an 71 L.Ed. 505 of probable tion for issuance certificate emphasized necessity has likewise cause, and a certificate was issued on Au- case, previous in a motion gust Appellant’s and order 292 N.W. 875 on authorizing appeal was filed rehearing, rev’d on remand. 1982. We reverse and N.W. wherein an information rehearing and on we was not filed held: ISSUE point is that from this The result THE DID THE OF STATE TO FAILURE county court was without AN LEAVE FILE INFORMATION proceed further in the case until THE COURT WITH- MAGISTRATE had attorney filed an information. state’s MATTER OUT SUBJECT JURISDIC- respondent It is contended TION TO AND SEN- CONVICT part failure TENCE APPELLANT? object to further DECISION judge because no information had county filed, from estopped he is now ob- been applica Most the substantive law the court but jecting ble to rule, here, exceptions are set forth in SDCL 23A-6-1. 1. Four to this which are not relevant of the court hearing matter.cannot Grego unless acquired by estoppel. dispositive clearly The erroneous. judg- pronounce ry void be con judgment wholly Subject ment and such whatever. waiver. and without force or effect ferred (N.D. Higgins, *3 State, 111, 46 82 A.2d 387 See Harris v. Del. also, Cochrun, 1966); see 328 State v. Accord, Ex 40 F. (1951). parte McClusky, reviewing 271 N.W.2d A (C.C.D.Ark.1889). is that 71 Our conclusion subject required to consider the issue of is a vital docu information is substantive where it was not matter even a mere technicality. ment rather than unwar raised below in to avoid an parties stipulated: We note that the judicial authority. exercise of ranted State Mo- allegations original There are Wiese, (Iowa 1972). N.W.2d As v. 201 734 violations of Constitu- tion of the State 875, subject mat we held juris- tion and that the court was without estop- acquired by sentence, which impose to both diction of findings the pel. circuit court’s grounds post-conviction fit within for of law support of fact do not its conclusions 23A-34-l(l) (2) relief. SDCL and erred as of law in its and the court a matter party for each therefore 2. Counsel subject jurisdiction. decision on matter matter, be con- stipulate that shall reverse and remand with We therefore post-conviction re- sidered a to remove appellant’s directions lief. since the magistrate this action before properly We hold that is subject without us relief under as one 23A-34-l(l) (2). and of- FOSHEIM, C.J., MORGAN, J., and con- findings of fact and conclu- proposed fered cur. objected findings sions of law and to DUNN, JJ., dissent. WOLLMAN adopted the circuit conclusions court. WOLLMAN, (dissenting). Justice v. would have us invoke State Appellee of the record before sparse the basis On Heumiller, (S.D.1982), and 317 N.W.2d 126 us, denying I would affirm the order error herein hold that constitutional petition for relief. Ap- was We are not so inclined. harmless. subject Although be true that felony. 6 pellant charged is a Class conferred cannot be convictions, he would Absent the waiver, impor- it is charged with a misdemeanor. We distinguish subject matter tant to between conclusion, unwilling conjure legal authority in terms court’s that fil- speculation, on surmise and based certain of cases and a adjudicate classes changed would not have offense particular over a court’s or the result. As stated particular defendant. represented counsel “to sus- Jersey, Court New generally, during See af- appear ... it must tain conviction [a] Erickson, 122, 85 178 Nachtigall v. is within firmatively that offense Brech, (1970); State v. N.W.2d authority. delegated court’s ambit of [the] Sewell, (1969); State v. within the over a crime not Jurisdiction (1943) (setting 12 N.W.2d 198 by consent cannot be conferred boundaries tak standard for heightened forth the by waiver persons involved —as counsel). en from defendants trial by jury.” Monroe, N.J. 152 A.2d post- standard of review

Our (1959). jurisdiction of the to hold that “Criminal conviction into law, inquire fact, power court to conclusions of matter is findings of crime, law, apply effect, amI unwilling to assume that punishment declare the in the court appellant’s pleas would have been different a judicial proceeding and is conferred had formal informations been filed. Pillsbury law.” Wis.2d I would affirm order appealed from. (1966): “In a criminal N.W.2d prosecution necessary the trial I am authorized state Justice court have joins DUNN in this dissent. is, ter —that the offense —as well as the person of the defendant. Jurisdiction matter is derived from the law.” Rigg, 258 Minn. See also (1960).

Tickle, 238 N.C. 77 S.E.2d 632 Law, C.J.S. Criminal

Had the court in kept this distinction STATE of South mind, may well adhered to its Appellee, original opinion, which held that defendant had waived the of an filing If the Fifth guilty. Amend KOENIG, Laverne guarantee ment’s grand to a Appellant. jury presentment or indictment as a condi precedent liability to criminal privilege federal courts is a personal of South Dakota. defendant, Barkman v. may be waived Sanford, (5th Cir.1947), cert. 162 F.2d 592 Argued Jan. denied, U.S. L.Ed. April 27, why it not be held that the alternative charging provided by document VI, 10 of Dakota the South Constitu §

tion is a privilege may also be

waived? The of an purpose satisfy requirements

information is to

of Art. our Constitution

apprising a defendant the nature of the

charges against him with sufficient specific so

ity that he defend plead and may later the indictment

or information as a bar to a subsequent Belt,

charge. Sinnott,

N.W.2d 588 As the majority

opinion points out, is undisputed that pleas were entered after

he was fully rights. advised of his In addi

tion, complaints were filed for offense,

each

voluntarily, did not request

preliminary hearing charges. In ef

fect, then, the verified served in

lieu should have

been filed. In the absence of evidence to