State v. Anderson
331 N.W.2d 568
S.D.
1983
Check Treatment

*1 568 bond, in his hard- oper- family shared

or failure to such relief would importantly, they more perhaps ate as fraud claimants. and ships, farming ethic and life- his work embraced evidence, the standards to the Applying Ricky’s and labor could be style. If Gerald trial court concluded: valued, 15-2-15(5) forecloses recov- SDCL presented that Nor- No evidence was after the cause of ery wages years two During the later incompetent. man was men young These two devot- action occurs. life, to some crippled he was years of his an uncle. It is their lives to a farm and ed extent, way in no affected his but this enforce the bar- right just equity and Neither has their capacity. mental [sic] gain. fraud, misrepresen- evidence of tation, or other unfair undue influence Therefore, specific perform- we hold that practice. the facts of allowed on properly ance was agreement, the oral Don-

In reliance of this case. ald, Gerald, assisted Ricky Jeffery and Affirmed. in a man- their uncle to their detriment time cannot be measured ner that at this concur. All the Justices records and cents. No accurate in dollars recon- and none could be kept have been Further, by granting specific

structed. parties will suffer

performance, no other hardship or loss. may enter into a con pérson make a will property devise

tract equity by third-

which is enforceable Kuhn, v. beneficiary. Kuhn party Dakota, Plaintiff of South STATE (N.D.1979). Being equitable an N.W.2d 230 Appellee, does not lie remedy, specific performance remedy exists at law. adequate where an ANDERSON, Tracy Richard Carter, Crawford v. S.D. Appellant. Defendant (1952). As was held in Peterson Cussons, 258 N.W. 63 S.D. 13782. No. (1935): Dakota. Supreme Court spe- will decree equity That a court of of oral contracts to con- performance cific Jan. 1983. Argued or to make a devise of vey property real March 1983. Decided per- the claimant has property real where specified in the con- formed the services settled to warrant

tract is too well support

citation of authorities in

rule; just rule that is as well but another is that where the value of

settled of meas- susceptible rendered is

services cents, specific per-

urement in dollars and be decreed.

formance will not

Here, for Gerald and legal remedies and dedication

Ricky’s years of hard work inadequate be

to their Uncle Norman are the dollar impossible quantify

cause it is their uncle. boys

value the bestowed unto

Donald, Gerald, dece Ricky provided they labor:

dent with far more than farm *2 Hallem,

Jeffrey P. Asst. Atty. Gen., Pierre, plaintiff for appellee; and Mark V. Meierhenry, Gen., Atty. Pierre, on brief. Larson, Jeff Office, Public Defender’s Falls, Sioux for defendant appellant. DUNN, Justice.
This is an appeal revoking from an order suspended imposition of sentence and the subsequent imposition of af- sentence. We firm. 5, 1980, May

On Tracy Richard Anderson (appellant) was driving arrested for under the influence intoxicating beverage of an 32-23-1(2). violation of SDCL In addition to being charged violating provi- sion, appellant charged was also for viola- tion of SDCL 32-23-4 which makes the third offense of while under the beverages influence of alcoholic a felony. 18,1980, September On appellant entered into a plea bargain with the The State. plea bargain terms of the were reduced to writing the trial court in its order of suspension In of sentence. counts, return for pleading guilty to both appellant received a unsupervised of sentence on placed and was eighteen part months. As the plea bargain, appellant was ordered to spend thirty days jail privileg- with work pay court-ap- es and ordered to a fine and pointed pro- order also attorney fees. The a motor appellant operating hibited from Dakota vehicle in the state of South years. three In addition to the written order, verbally apprised appellant the court plea bargain of the substance of the from that he received assurances understood its contents. 2, 1981, appellant was

On December again arrested for while under the beverage. Follow- influence of an alcoholic arrest, suspicion the State revocation of a violation ing the stop justified. before the will be imposition of had violated grounds supplied). at (emphasis him mo- operating order from prohibiting standard, will as the which we define tor vehicle in Dakota. revocation standard, suspicion was more reasonable hearing was on March held Ingle, precisely defined *3 trial court that had violat- found 413, 67, 330 N.E.2d 39 N.Y.2d 369 N.Y.S.2d suspended imposition ed terms the standard, (1975). Discussing the the court sentencing hearing sentence. At a held on said: 16, 1982, the a imposed March trial court emphasized It that the factu- should two-year penitentiary in the state support stop for a al basis a required $2,000 imposed and also a fine. is minimal.... “routine traffic check” required stop that the be not All is is that the court Appellant contends trial whim, product of or idle caprice, the mere in the applying suspicion” erred “reasonable stop It curiosity. enough is if the is Instead, stops. ap standard to automobile “specific facts based pellant police asserts that officers must which, together with rational infer- taken “probable have cause” to believe an offense facts, reasonably ences from those war- they was committed before can make a rant [the] intrusion[.]” stop. routine traffic be Since 420, 74, 330 36 N.Y.2d at 369 N.Y.S.2d at lieves was probable cause not established (citation omitted). N.E.2d at 44 hand, at he case contends the evidence opportunity We take this to extend procured as a result of the stop is not suspicion to automobile reasonable standard admissible. We agree. cannot case at stops present the nature in the recently While we had occasion to discuss Here, hand.1 an officer experienced police grounds necessary to make an investi special training in the detection of gatory stop pedestrian, Soft, of a State v. drinking appellant’s driv- drivers observed 329 (S.D.1983), N.W.2d 128 we have not ing morning skills in the hours of early reached this precise issue as relates to 2,1981. appel- December noted officer stops. routine traffic We find the approach snow-packed was veering lant’s vehicle into Minnesota, followed in as articulated in areas on back weaving the road and then State, Marben v. Dept. Safety, of Public 294 lane, leaving the clear the traffic frequently (Minn.1980), 697 persuasive. N.W.2d to be activities, lane. We believe these observed There, the appealing party contended the blocks, over several provided police offi- stop initial by without a warrant a police cer with a and articulable reason to specific officer was inconsistent with Fourth appellant’s stop motor vehicle to determine protections. Amendment In addressing this whether while under appellant was issue, the Supreme Minnesota beverage. Court stated: of an influence alcoholic is well settled that in accordance Appellant next contends trial court’s with the Fourth Amendment of the Unit- failure to him on maximum

ed police States Constitution a officer two-year thirty days sentence for the he may not stop a vehicle without a reasona- spent jail aas condition of his doing ble basis for so. Consistent with imposition of sentence violates the double principles Ohio, out Terry set v. 392 jeopardy clauses of both the United States 1, U.S. 88 20 S.Ct. L.Ed.2d 889 We can- and South Dakota Constitutions.2 (1968), the officer must have a specific agree. not applied 1. This standard has this court 2. The Fifth States Amendment of United Soft, in other factual situations. See State v. Constitution reads: Coe, (S.D.1983); 329 N.W.2d 128 State v. 286 person No shall be to answer for a held Boardman, (S.D.1979); State v. N.W.2d 340 capital crime, or infamous otherwise unless (S.D.1978). presentment jury, 503 grand of a indictment except arising the land or naval cases

571 Lohnes, (S.D. Lohnes, In State v. 266 N.W.2d 109 sentence. v. supra; See State Vez 1978), we said: served on State, “Time ina (Minn.1979); 289 N.W.2d 408 need not be imposed credited on sentence Fuentes, Ariz.App. 444, State v. 26 549 P.2d after is true revocation. This even where (1976) Ariz. aff’d 113 551 P.2d 554 one of the of probation includes (1976). Although party neither cites it for form some Id. at incarceration.” 114 authority, we believe pro- SDCL 23A-27-13 (citations omitted). Appellant contends legislative support vides intent to prop- the extension Lohnes beyond its osition. This statute discusses the situa- facts will result in constitutional violations tions in which a Pearce, set forth in North Carolina sentence can be and when revoca- U.S. S.Ct. L.Ed.2d 656 tion of such is suspension warranted. The (1969). While Lohnes was denied credit for provides, pertinent statute part: served, time appellant asserts this did not suspension court revoke such at the subsequent imposition involve of a max *4 any during probationary time the period imum sentence in the case at as exists hand. impose and execute sentence without Following Michigan precedent, recent ap any diminishment or credit for of the pellant believes that to failure probationary period. prior will incarceration “lead to the anomalous result of a defendant suffering Finally, strong we there are also believe longer a result of having incarceration as public which to policy compel reasons us placed on than probation initially if deny credit for served while proba- time prison sentenced to the maximum term pos tion. Those reasons best stated in sible for the offense.” v. Sturdi Minn. Young, State 141 N.W.2d vant, 412 Mich. 312 N.W.2d (1966): required is given, credit were to be it [I]f acknowledge position While we the sentencing foreseeable court that a would Court, taken the Michigan Supreme we impose be less to the of inclined risks adopt decline the to it invitation in this probation upon society, knowing that Pearce, jurisdiction. supra, addresses the might such concessions hinder communi- basic guarantee against constitutional dou of cating impact to the defendant the full punishment ble in cases where credit is and, possibly his responsibility for acts denied for time on a served void conviction frustrate The effect upon rehabilitation. when the later defendant is sentenced fol probationer a well respect could be less lowing his That reconviction. situation var probation for the restraints of and obedi- ies considerably from the case at hand. of law, danger ence to the increased Here, we are asked to consider whether a recidivism. essential that a court is person placed is jeopardy in double when he original should retain threat of the the is following resentenced violation of proba probation of upon sentence breach in or- tion and credit is for time denied served as to a effectively discipline proba- der more condition probation. a of We believe time of protect against tioner and the risk probation served as a condition of need not repeated injury society. to be credited on a sentence after revocation, (emphasis Id. at at 20 even if resentencing that results the imposition in maximum statutory supplied).3 of the

forces, service, VI, or in the when in militia actual Article South Dakota 9 of the Constitu- § danger; public any in time tion reads: of war or nor shall person compelled any person in criminal subject No shall be be the same offense to be give against himself or be put limb; case to twice evidence jeopardy twice life or of nor shall put jeopardy for the same offense. compelled, case, criminal to be a against himself, life, deprived witness nor be of present sixty days 3. The restricts to the statute liberty, property, process or without due of judge sentence an individual time trial can law; private property nor shall be taken for county jail probation. as a condition of public compensation! just use without We do not read this deci- SDCL 23A-27-18.1. of vehicle

Appellant upon public highways contends revocation motor the period violated state for a of three years. of sentence of this right his due to be of the process informed supplied.) (Emphasis While not be a no Appellant claimed violation. received clarity, clearly model of the order states tice that be being revocation was driving part of is privileges that denial of prohibition against cause the he breached imposition sentence. of Giv- driving which was in the order. contained driving en here occurred that violation asserts, however, Appellant prohi eighteen-month probationary pe- within the driving bition of was not a condition riod, appellant’s we find revocation of sus- term In unsupervised probation. of his imposition of sentence for pended stead, appellant prohibition asserts violation order does not constitute a against is distinct separable process liberty denial of without due law. from the as set out future, however, expect trial In the we agree. the order. We cannot to more which ac- precisely courts define prohibited probationary tions during are suspending The order imposition prohibited which are be- period and actions states, pertinent part: period. yond that ORDERED, DE- ADJUDGED AND judgment CREED that no shall guilt Appellant’s allegation of de second be entered at this time and the Court process nial of due the trial court asserts suspend does hereby appellant’s relied on failure reimburse place sentence and the Defendant county for attorney fees rationale for *5 unsupervised during for and the suspended of sen revoking imposition period of months the date eighteen from receive prior tence. did not Since following hereof and con- terms violation, this he asserts notice of claimed ditions: process rights Appel his due were denied.

1. That the said defendant thir- lant notice serve received that revocation would ty (30) jail, days work release authoriz- for a vehicle South ed, with sentence said to be served Dakota violation of the terms of the either Pipestone County Hennepin Although findings of fact or order. no filed, County, and said sentence to be of law were the record conclusions Any served November costs was clearly 1980. indicates revocation warranted of said paid by incarceration to be said violation once this was established. defendant. past attorney of due fees was discussion peripheral brief and in nature since the

2. That the said defendant a fine pay revocation, reason for primary plus of $25.00 for $500.00 LOTF. order, of violation the terms of was 3. That the said defendant reimburse regard established. While the statements County Minnehaha fees in- attorney ing possible grounds other for revocation of volved in case this in CR. involved beyond parameters of order 80-139, fine, with payment of said costs violations, of the notice claimed was not fees attorney to be monitored proc which resulted in denial due error through the Court Department Service Hunter, ess to appellant. See paid and all to be within 18 months. Mich.App. 4. said That the defendant waive ex- tradition back Da- State there is insuffi- Finally, asserts kota upon request by appear the Court to to find a cient evidence the record viola- in this matter. tion of the of sen- IT IS FURTHER that the Appellant’s ORDERED tence. contention is based on prohibited defendant is from operating prohibi- the erroneous conclusion that broadly responding being given sion so as to assert there are no length legislature limits to the of time the after revocation. probationary fix incarceration a cor- without tion against driving in South Dakota was European checks are authoritative culture. not part of the terms and They are the advent of a police state on the order highway. of sentence.

We have already prohi- established that the

bition was a condition of the order and we ample

find evidence in the record to estab-

lish that this condition was violated.

The order is affirmed.

FOSHEIM, C.J., and WOLLMAN and MORGAN, JJ., concur. Dakota, STATE of South ex rel. Randi HENDERSON, J., concurs in result. KEUCK, Appellee, Plaintiff and

HENDERSON, Justice (concurring in re- sult). GAMBER, Howard Defendant Appellant. herein, portrayed by

As the facts this arrest was anything but a routine traffic No. 13717. stop. Although I concur in the results of Supreme Court of South Dakota. case, I approve do not language contained in the 1975 New York citation set Considered on Briefs Nov. 1982. majority forth in the opinion. appears Decided March 1983. me that the New York decision takes a more approach liberal than the United Supreme

States Court in this matter of

stopping highway cars on the for a “routine

traffic check.” The New York decision

goes beyond Supreme the Minnesota Court

decision and the United Supreme States

Court decision of Terry v. Ohio. Erosions

of liberty do not come in giant leaps, they

come in miniscule encroachments often hid-

den to the trained and educated mind.

Like a night, thief in the language can steal

a liberty deeply ingrained in the fabric of way American of life. I am afraid of

each little encroachment on the liberty of

my fellow Americans on the highway.

There must be a reasonable basis for

stopping a vehicle on the highway and that rooted, facts,

reasonable basis must be give

which specific rise to a

suspicion of a violation. When a routine made,

traffic stop is where is the inherent thereof)

evil (gravity which is sufficient to

outweigh the interest of an individual’s lib-

erty, who is temporarily restrained? If the

reasonable suspicion test is ap- standard

plied, an liberty individual’s must be bal- against

anced the prevention of an evil. Texas,

See Brown v. U.S. S.Ct.

2637, 61 L.Ed.2d 357 Routine traffic