State v. Davis, 515 N.W.2d 205

State v. Davis

515 N.W.2d 205

S.D.

1994

Check Treatment

*1 205 J., MILLER, C.J., AMUNDSON, and Rudge and Ail states that affidavit which concur. him money from under tried to extort Dakota agreement, prosecution the of and an threat HENDERSON, JJ., concur WUEST and detailing Rudge, allegedly authored in result. the extortion.

terms of result). WUEST, (concurring in Justice Co., v. Power In Packard Central Maine I concur in result. (Me.1984), argued plаintiff 477 A.2d 264 process his of claim that the support of abuse HENDERSON, (concurring in re- initiated showed defendant evidence sult). complaint only he had criminal after refused majority opinion I concur with the pay electricity to for the defendant claimed rulings court’s affirmance of the trial on sum- he The trial cоurt found for had stolen. However, mary judgment. I wish to elabo- Supreme and the Maine Court defendant (or rate that commencement non-com- affirmed, stating process of “dif- abuse mencement) judicial proceeding is not a of prosecution in that fers from malicious it lies by jury; question of to be fact dеtermined use it improper process of has after law, it left to the is matter of decision issued, maliciously causing pro- not been for judicial District tribunal. See Jackson v. of (emphasis cess 477 267 to issue.” A.2d at Columbia, (D.D.C.1989); F.Supp. 13 710 added) (citation omitted). See, Keeton, Pros- Ferre, Pub. Co. Miami Herald v. 121, § ser and Keeton on Law of Torts at (S.D.Fla.1985). ap- F.Supp. glaringly (“Abuse process of from malicious differs pears judicial proceeding was insti- prosecution gist in that of the tort not forgery. prosecution for tuted. There was commencing causing process an action or to question jury. Bogh is for v. A of fact justificatiоn, misusing, or issue without but Beadles, (1961). 23, 107 79 S.D. justified process misapplying itself for an question court to A of law is the trial designed end other than that which it was to SDDS, 502, re determine. In purpose accomplish. pro- The for which the (S.D.1991). Therefore, in ac- I am not issued, used, cess once it is is the majority decidendi cord the ratio added)). importance.” thing of opinion. light Viewing the in the most evidence Miessner, attempted to Defendants

favorable Miessner, the threat crim- induce rights relinquish

inal his prosecution, Miessner, they According

All Dakota. damaging released the information Dakota, Plaintiff STATE of South attempt alleged at authorities when Appellant, prov- Even if had coercion failed. Miessner wrongfully reporting en acted Defendants officials, to law such matters enforcement Jerry DAVIS, Appellee. L. Defendant allegation evidence is not relevant to an 18310. No. process because this does consti- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍abuse improper process tute “the use of it has Dаkota. South Packard, at 477 A.2d 267. issued.” 3, 1993. Considered on Briefs Dec. may an incidental While there have been process spite, the used for the April motive of Decided which it intended. purpose for While Rehearing May Denied may prosecu- acts amount to malicious these tion, process. they do nоt constitute abuse of

Therefore, summary trial court’s process is affirmed.

judgment as to abuse of *2 residence and took

the two to his them back home, stopping along way pur- to his chase some beer. renting a room in a

Graham trader (Carlson) from Richard Carlson and his wife. and the When Graham two ladies arrived at trailer, up the Carlson Carlson’s wife was with the Carlsons’ infant son. Graham invit- sleep in ed Davis and Viсe to the trailer for night and went to bed. Carlson’s wife and son later went to bed as well. Davis and and, Vice drank a few more beers in the conversation, course of their Davis men- tioned she had seen Graham cash a check he, money and that “had a bunch of on him.” large glass jar change The two also saw a sitting living they in the room where were to, staying. Needing money “go out and drinking,” continue Davis instructed Vice to dig change jar out of the while she went money into bedroom to Graham’s find the from the check he had cashed. Davis went emerged into the bedroom and a short time money. later with Graham’s The two then departed the trailer.

Carlson awoke at about 7:00 a.m. the next morning change and missing discovered the Barnett, Gen., Atty. Mark Charles D. jar living from room. Carlson also Gen., Pierre, MeGuigan, Atty. plain- Asst. missing cigarettes discovered some and a appellant. tiff and missing cap. attempted Carlson to wake Hood, Rapid David R. Wurm Wurm and up missing Graham and tell him about the City, appellee. for defendant and money apparently passed but Graham had out from the effects of alcohol. When Gra- WUEST, Justice up morning, ham woke later that he discover- missing pants pocket ed from his and $200 appeals State the trial court’s issuance of a cigarettes also found that some and beer vacating Jerry writ of error coram nobis L. missing. were (Davis) degree Davis’s conviction for second burglary. We reverse. arrangements Graham Carlson made nearby meet some friends at a bar. With support, they go friends’ intended to

FACTS belonging back to the trailer to Davis’ sister Early 1, 1992, morning August and confront Davis and Vice about the miss- (Graham) Jerry Michael Graham met Davis ing money. However, when Graham and (Davis) (Vice) sister, Cindy and her Vice at a designated Carlson arrived at the bar/meet- Rapid City, bar South Dakota. Graham ing place, they sitting found Davis and Vice gave lаter Davis a ride to another sister’s possession in the establishment of some of Rapid City residence trailer court. Gra- property taken from the trailer. Graham acquainted ham was one of the other and Carlson notified the authorities and de- residents of the trailer court and attended tained until Davis Vice law enforcement party at that residence for time. When he arrived at the scene. party, again left the he encountered Davis 8, 1992, quarreled and Vice who had with their sister On October state filed an informa- place go. and needed a charging Graham invited tion Davis with one count of second 22-32-3). (SDCL granting petition. of law and order burglary Davis sions degree applied that to dismiss the The trial court concluded Oster pre-trial motion filed retroactively, prevented she had not remained it would have basis purposes against Carlson residence of a conviction at the thereforе, and, did not com- committing theft no other and that Davis had *3 its burglary as defined ele- mit this court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Accordingly, the circumstances of her case. T.J.E., 426 N.W.2d 23 ments in Matter granting the order the writ vacated her con- of (S.D.1988). pre- at a The motion was denied appeals. viction. State 1, hearing 1992. trial motions on October ISSUE trial conducted on Davis’s court was Octo- case, 7, DID TRIAL COURT ERR IN 1992. At close of state’s THE ber FOR indicated she would have witnesses GRANTING DAVIS’S APPLICATION Davis acquittal a of on and moved for A WRIT OF ERROR CORAM NOBIS? grounds including state’s failure to several extraordinary an of Coram nobis is writ in that she remained prove origin. common law has been held establish required trailеr as bur- Carlson jurisdiction court of a re- [t]he T.J.E., supra. The motion was glary under Any scope. lief it is of limited guilty Davis and the trial court found denied proceeding challenged which is A and sentence charged. as were presumed is to be and the writ correct 29, Davis on October 1992. entered burden rests on its assailant to show years peniten- to five in the state sentenced Only where are errors otherwise. there plus of costs and tiary and a fine resti- $500 kind, of fact “the most fundamental of year five in the amount of The tution $284. is, proceeding as to render the such suspended a penitentiary sentence was on invalid,” irregulаr itself can redress including Davis’s variety of conditions con- only granted will be be had. Relief county jail days. in for 180 finement compel such action when circumstances appeal a on November Davis filed notice of justice.” “to achieve 20, 1993, 23, However, January on extraordinary Generally, this writ is aрpeal. her Davis made a motion to dismiss involving available to attack convictions motion, supporting In affidavit her Davis an disadvantages sur- legal collateral which product of stated that the motion was of a More vive the satisfaction sentence. “free, her, voluntary and informed decision.” statutory importantly, remedies must be granted motion. This Court inadequate peti- a or unavailable before 29, 1993, petition Davis filed On March granted. can be tion coram nobis relief for seeking a writ of error coram nobis Petition petition her conviction. The vacate omitted) (S.D.1985) (citations upon this Stаte v. based court’s decision added). the issuance of State contends (S.D.1993) Oster, 495 N.W.2d which was case was coram nobis this writ error 27,1993. January on asserted decided Davis had an available erroneous because misapplied the trial court stat- that the had statutory trial remedy for the court’s error defining burglary: ute statutes, interpretation of the its opin- Dakota per South i.e., her We appeal a direct conviction. slip [495 305] ion in State N.W.2d agree. (filed 1/27/93),which, on # 17745 facts op. out, supra points case, re- [Davis’s] identical those un statutory remedies must be generally, a 1991 for Second De- versed conviction petition for inadequate or before a available Burglary ground on that the ele- gree granted. will be Given eoram nobis relief require that the ments of the offense limitation, recog various authorities such remaining unlawful[.] or nize that: hearing petition was conducted A Davis’s 29, 1993, to cases a writ of еoram nobis limited

on March On March fact, provided by law. findings where other entered conclu- trial court its Statutory HENDERSON, (concurring). remedies such as a motion for a trial, judgment, new motion to vacate a joining opinion, In the reader should judgment, motion in arrest motion to note the difference between Petition of reargue, appeal, and motion to recall re- Brockmueller, (S.D.1985), 374 N.W.2d 135 mittitur, regarded materially have as and this case. abridging largely superseding sup- or or Broekmueller’s first two DUI convictions planting original office and functions of were ruled void and vacated due to Honom the writ of eorаm it nobis as was known to State, ichl v. Thus, the common law. such a writ has decision handed down Brockmueller’s been held not to be available where a conviction, third DUI which was enhanced to proper remedy by appeal is afforded felony. a Class 6 Once the first two convic ordinary error, by writ a motion for a *4 erased, only tions were Brockmueller had trial, by new judg- motion arrest of name, one DUI conviction to his but was still ment, by plea. a motion to withdraw a being punished as if it was his third convic (1985) (em- tion. Because the recent conviction § 18 Am.Jur.2d Coram Nobis 12 was val added). statutory Accord, illegal id and the time to рhasis correct an 24 C.J.S. Criminal (1989) (res passed, sentence had since judicata § writ of coram Law 1619 bars claims only remedy nobis was the available to elimi post proceedings conviction relief nate the enhanced sentence. could have been raised or decided on direct also, Nilles, appeal). See Petition 412 Instanter, Davis moved dismiss the sec- (S.D.1987) (Henderson, J., 119 degree burglary charge, citing ond Matter of (coram specially concurring) nobis not an T.J.E., (S.D.1988), 426 N.W.2d 23 because appeal). instrument of she had not remained at the purposes residence for committing theft. Here, very ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍grounds urged the She now seeks the writ on based State v. petition in her for a writ of error coram nobis 495 N.W.2d 305 a decision pre-trial were also raised in her motion to handed down her conviction. after dismiss and in her motion for a True, Davis could not have utilized Oster i.e., acquittal, unlawfully remaining on trial; however, at her cоmpletely Oster relied premises requisite was a element to sus T.J.E., legal precedent which Davis did tain her conviction for and the facts utilize. The release of parallel Oster is not a in this case fail to reflect that she remained by to the release of Honomichl. As noted premises unlawfully. Davis laid the majority opinion, other remedies were necessary groundwork appeal the denial of Davis, including available to appeal. a direct and, thereby, these motions possibly obtain Not so for Brockmueller. Coram nobis “ex relief from her appeal. conviction in a direct remedy against injustice— ists to afford a Yet, Davis, voluntarily appeal dismissed that remedy when no other is available.” Brock “voluntary as a result of a and informed mueller, (Henderson, J., 374 N.W.2d at 139 Thus, pursue decision[.]” Davis failed to concurring specially). “Coram nobis cannot prescribed statutory remedy for the errors simрly relitigate be invoked original urged she petition her for the writ of error case. is not an appeal.” instrument of and, coram precedents nobis under the cited (S.D. Nilles, Petition above, the writ should have been denied. 1987) (Henderson, J., specially concurring). Reversed. Hence, complete agreement I am in with the

majority writing. MILLER, C.J., AMUNDSON, J., SABERS, (dissenting). concur. majority opinion argues

While that the HENDERSON, J., issuance of a writ of error coram nobis was in writing. concurs with statutory'reme-

error because Davis had the SABERS, J., available, dissents. dy appeal remedy direct is therefore, enough! has an interest in is Even the State I would longer available through tape. This cutting this red order. See affirm the though (affirming order even of error cor'am nobis in should a writ N.W.2d 135 were initiated proceedings post-conviction accordance with Petition of Brockmueller). (S.D.1985).” (Sa this court stated Id. at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍166 N.W.2d 135 Brockmueller, “statutory be bers, J., remedies must specially). conсurring petition coram ... unavailable before remedy appeal is not Because avail granted.” Id. at nobis relief can Davis, affirm, reverse, able to I would (citations omitted). added) conviction to trial court. To allow this stand statutory other apparent that no [I]t injustice magnitude. is an of the first Brоck available to Brockmueller mueller, 374 N.W.2d at 138-39. felony conviction. SDCL vacate his invalid a court to arrest 23A-30-1 authorizes jurisdiction over the for lack of upon motion to charged,

offense but days made within ten

the court correctly argues

verdict. Brockmueller charged

that he could not be *5 approximately months

knowledge that nine felony subsequent conviction this to his Appellee, KOST, M. Plaintiff and Merle that a court could not court would hold in acquire jurisdiction over a DWI offense v. information. the absence of an KOST, Karen M. Defendant added) (citation at omit-

Id. Appellant. ted). No. 18101. Brockmueller, be cannot knowledge days charged seven Dakota. of South Court ap after she a motion dismiss her made Aug. Briefs Considered on peаl, this would hold “the accused court unlawfully occupied in an must remain” April Decided (em Oster, at 311-12 structure. 495 N.W.2d phasis original). See J., (Henderson, concurring

N.W.2d at

specially).* If the word “remains” means majority

“unlawfully as the subse remains”

quently then Davis held in is entitled interpretation.

to have of that the benefit (“Events occurring after the

Id. as within the ambit of

have treated nobis.”) any It doesn’t make sense

coram majority as a to free Oster result ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍interpretation but refuse to vacate I stated

Davis’ conviction. As Moeller

Solem, “Enough 395 N.W.2d part. plea on his writing: of his and without fault in his *As Justice Henderson stated part. fact on his This was was mistake of was called to trial on When Brockmueller plea trial court when the also unknown to the (felony), he the Part position Information was in II accepted. was If known to Brockmueller attention thе trial to call to the court, felony court made Honom- a decision the trial rendition of the State, (S.D.1983). This ichl v. legal point N.W.2d 797 place. Coram taken nobis would have judgments, That the is critical.... therefore lies. upon felony predicated, would which the (citations at 140 omit- defects, jurisdictional vacated due to later ted). him at the fact unknown to time