*1 rely upon that infor right in the world plea. entering his and advice
mation trial court’s that the
Are we to construe simply incorrect pre-Olesen
advice was probe tongue? do we slip Or
or a judge was reflect that the deeply
more canvassing the matter with
then and there making sure that the accused and was intelligent be plea free and
accused’s plea? Ac entered his the accused
fore cases, appellant two now in the first
cused nature and
here, to know the was entitled Ala plea. Boykin v.
consequences of his
bama, 89 S.Ct. State, v. Spirit Track
L.Ed.2d 274 Nachtigall
Erickson, Dakota, Plaintiff
STATE South Appellee, FEIOK,
Jeffrey Defendant R. Appellant. Dakota. South 7, 1985.
Considered on Briefs Jan. 13, 1985.
Decided March *2 Smith, Gen., Pierre, Atty.
Mark Asst. plaintiff appellee; V. Meierhen- Mark Gen., Pierre, ry, Atty. on the brief. Timothy Bjorkman, Bridgewater, W. appellant. defendant and WOLLMAN, Justice. appeals judgment
Defendant from the affirming the circuit court the law-trained magistrate’s imposed liability decision upon defendant under SDCL 32-22-55. We affirm. 18, 1983,
On October defendant was transporting soybeans a semi-trailer load of when he stopped South Dakota Highway trooper Patrol and asked to drive nearby his truck to a scale site. After weighing vehicle, trooper charged defendant with a violation SDCL 32-22- revealing the scale ticket defend- 5,160 of this section is a misde- pounds overweight. tion Class truck was ant’s meanor. fine of and costs imposing a $88 After of the Class violation $12 the amount of provides: 32-22- provided by SDCL 2 misdemeanor Any who is convicted of court magistrate then operating a motor vehicle offense $1,290 in accord- “fine” the amount public highways this state upon the *3 set forth ance with the schedule wheel, weight upon any axle or with upon 32-22-55. than one groups of axles or more greater per- than the maximum thereof pro- penalty that the Defendant contends §§ 32-22-33, by to inclu- mitted 32-22-2 a dou- by 32-22-55 constitutes vided §§ sive, 32-22-48 and acts 32-22-47 and the offense punishment for same ble amendatory fined in ad- thereof shall be §VI, of the South Article 9 violation of any to and not in substitution for dition prohibition and the Dakota Constitution provided by all now law for and in the against jeopardy contained double following in the amounts: such offense the United States Con- Fifth Amendment to equal per In an to five cents amount agree. do not stitution. We or pound pound of such excess each provides: weight over one thou- combined excess pounds such excess is three sand when or of No combination motor vehicle pounds less. thousand or public highway a operating on vehicles per equal In an to ten cents amount may weight: have a pound of such excess or pound each (1) twenty thousand In excess of weight ex- combined excess when such axle, including pounds any one all on pounds three thousand cess exceeds However, a tolerances. enforcement pounds or is four thousand less. pneumatic with tires equipped vehicle equal per cents In an amount fifteen spaced or eight. axles feet with or pound pound for each of such excess may not ten thou- apart more exceed weight ex- excess when such combined wheel; a pounds sand on pounds exceeds four thousand cess (2) thirty-four In thousand excess pounds or less. is five thousand axle, including pounds any tandem equal twenty-five In an amount However, all enforcement tolerances. pound pound per for each of such cents pneumatic equipped a vehicle weight or excess when excess combined eight feet spaced tires with axles or pounds is five thousand such excess may nine thou- apart or not exceed less more. pounds sand on a wheel or seventeen The fine schedule this section is axle; pounds on an or thousand single according rate to the assessed a (3) weight of the excess maximum per pound penalty highest cents the more consecutive axles on two or weight violation. by the detailed in determined formula “[Wjhether particular statutorily a § However, in no instance 32-22-16.1. penalty is civil or is a defined criminal weight or gross vehicle statutory construction.” matter United eighty of vehicles exceed combination 242, 248, 100 Ward, States pounds on the interstate thousand (1980). In L.Ed.2d highway. statute, reviewing construing a such axles sets of tandem Two consecutive legisla first determines whether the court gross thirty-four may carry a load of express prefer or implied ture indicated an provided each the over- pounds thousand ence for one label or the other in establish the first and last pre all distance between ing penalizing mechanism. If this legisla tandem liminary consecutive sets of indicates axles such review that the penalty, feet or viola- ture intended to establish thirty-six more. A axles step analysis 39-6, in the of the the second stat- Neb.Rev.Stat. statutory determine ute is to whether punitive purpose is so or scheme either Second, had legislature intended negate as to effect that intention. Id. provided that sanctions 32- penal 22-55 be nature
Applying step the first would have analysis of the reclassified the violation of SDCL question quickly reveals, the statute in (now 2) a low-grade from Class course, misdemean- legislature language used (see 44.9929) or Supp. SDC 1960 to a Class commonly associated with penal or felony, misdemeanor as the amount alone, Standing ties. the words “shall be under SDCL 32-22- fined” and “fine schedule” on their face might 22-6-2(2) warrant. SDCL fixes indicate that the sanctions forth in set maximum for Class 2 misde are to be deemed criminal in na thirty days imprisonment meanor at in a inquiry, ture. That is not end of our county jail fine, one or a hundred dollar *4 however, interpretation the anof “[i]n such imprisonment. both fine and Obvi legislature, act of it is intent the the of that ously, penalty the imposed upon additional body governs and that not the literal mean pursuant defendant to SDCL 32-22-55 ing employed.” of the words Read v. Jer greatly the exceeds maximum fine autho 302, 298, County, auld 70 17 S.D. N.W.2d by the rized law for commission of a Class 269, 271 v. Sperling State ex rel. 2 It shortly misdemeanor. is true that Comm’rs, 361, County Bd. S.D. 43 73 of the after effective date the of statute now (1950). 232 N.W.2d forth in Attorney set SDCL 32-22-55 the General opinions indicating issued two that why are least two reasons There charges pursuant the additional legislature we that in believe the did not that statute in are the nature of a fine. imposed pursuant tend that the sanctions Attorney Reports See 1951-52 General's to SDCL 32-22-55 should be deemed crimi 242; page page opinions 257. Those are First, nal in imposing nature. the statute court, however, binding upon not this weight providing restrictions trucks and they we not conclude that do constitute penalty for a criminal for a of violation that interpretation correct of the statute. See in first enacted 1929. See 1929 ex Esmay, State rel. Widdoss v. §§ 39, 251, S.D.Sess.Laws ch. It was 270, (1948). 33 give N.W.2d 280 To the predecessor not until 1951 of that the interpretation placed by statute the iton SDCL 32-22-55 was enacted. See 1951 Attorney the General would render void S.D.Sess.Laws ch. 235. It is a fundamental imposition the sanction in of excess principle statutory in construction that that authorized for a 2 Class misdemeanor. determining legislative intent a court contrary To hold run so would to the rule legislature “must assume the in that enact permissible that “as two between construc ing provision in previously has mind en statutes, adopted tions the one should be relating acted statutes subject to the same will legislative purpose.” that advance the matter.” State 261 Chaney, v. N.W.2d Gulbrandson, 179, 185, Friese v. S.D. 69 8 674, (S.D.1978). 676 v. See also State 438, 440(1943). Likewise, N.W.2d “[i]f Hirsch, 309 832 N.W.2d State fairly susceptible statute is of two con Comm’n, Wieczorek, Hwy. 248 Etc. v. structions, give one which will effect to (S.D.1976). legisla N.W.2d 369 Had act, it, while the other will defeat ture intended that financial sanctions preferred.” former construction is 73 Am. penal be mandated § Jur.2d Statutes nature, predecessor 32-22-16 therefore, likely according conclude, would have been amended We not that § See, ly. e.g., withstanding Vehicle use Cal. Code of the words “shall be § 1971); (West 95½, Ill.Ann.Stat. Ch. 15- fined” “fine schedule” SDCL 32-22- § 1971); (Smith-Hurd legislature Kan.Stat.Ann. 8- impose intended to only nature We fifth sev- in the a civil conclude sanction Mendoza-Martinez factors enth are rele- may states have penalty. That other inquiry in the us. vant our case before cost out their civil spelled specific overweight in more lan- vehicles factor, respect With the fifth see, 169.871 e.g., Minn.Stat.Ann. guage, whether the behavior to which the sanction §§ 1984); (West N.D.Cent.Code imposed by already a SDCL 32-22-55 is (1980), perhaps may a les- to 39-12-20 crime, led the the same considerations that draftsmanship, is legislative but it son Ward Court in the case to conclude that necessarily to the result we reach a bar therein was in nature sanction civil respect to our statute. compels similar here. us to a conclusion turn, then, in our step We to the second legislature may provide The that one same statute, is analysis of the a determi a civil a criminal act result both statutory Ward, supra. nation whether the scheme is so sanction. United States v. length elapsed either as to punitive purpose effect of time that substantial pen legislature’s between the enactment of the criminal negate impose intention to alty subsequent and the di purely penalty. a civil lutes of the claim the latter the force Ward, supra. Here, Id. in nature. as indi Mendoza-Martinez, Kennedy above, provided by cated the sanction (1963), L.Ed.2d 644 twenty-two SDCL 32-22-55 was enacted forth the United States set years imposed by the criminal after *5 weighed to be in de- seven considerations SDCL 32-22-16. termining sanction or whether a is civil in penal nature: respect to With the seventh fac tor, the the apparent excessiveness of civil the involves an affirm- Whether sanction assigned purpose sanction in relation to the restraint, disability ative or whether it it, the autho to we conclude that regarded historically pun- has been as a 32-22-55, by although rized certain SDCL ishment, only into play whether it comes insubstantial, ly clearly are so ex not scienter, finding oper- a whether its relationship cessive to bear no to the promote ation will the traditional aims of purpose they imposed. We for which are deterrence, punishment —retribution agree the of North applies to which it whether behavior imposition penalty Dakota aof crime, already is whether an alterna- a by upon based the amount a vehicle which may purpose rationally tive be to which overweight way is is a reasonable for it, assignable is for connected wheth- weight set police state to restrictions appears er it excessive relation to the Hjelle rel. State ex forth in statutes. its assigned purpose alternative are all rele- Vehicle, Etc., A Motor inquiry, point to the vant often (N.D.1980). accept To defendant’s conten differing directions. spe must tion that the state establish Mendoza-Martinez, supra, at by cific which the truck amount overloaded 567-68, (foot- at 9 L.Ed.2d 83 S.Ct. damaged high to have can be deemed omitted). pointed As the Court out *6 imposable and it refers to the amounts as a “fine schedule.” MORGAN, J., TAPKEN, and Circuit indicates, majority opinion As the SDCL Judge, concur. apply 32-22-55 must to either a criminal FOSHEIM, C.J., HENDERSON, J., and penalty. fine or a civil It cannot be both. dissent. 32-22-16 and 32-22-55 Both SDCL paid county treasury fines are into for TAPKEN, Judge, sitting Circuit public pursuant of the schools benefit WUEST, Justice, Acting disqualified. constitutional mandate1 and SDCL 23A- FOSHEIM, (dissenting). Chief Justice statutory procedure The for col- 27-25.2 my opinion In magistrate court ex- lecting the SDCL 32-22-55 fine does not jurisdiction. ceeded its limited SDCL 32- employed 32-22- differ from SDCL permissible 22-16 delineates the maximum 16. It is not collected under civil 15-2-14(2), weights provides See, vehicle that a viola- procedures. and SDCL 15-5-2(1); 16-2-30; tion of this statute is a class two misde- SDCL 21-9-11. Legislature meanor. A class two misdemeanor carries The labels the SDCL 32-22-55 fine; days impris- penalty imposes and collects it as an thirty a maximum law, for the violation of ed, state when collect- 1. See S.D. Const. art. VIII paid treasury proper shall be into the of the provides: 2. SDCL 23A-27-25 county, proceeds ap- the net of which shall be pecuniary penalties, other than All fines and plied year and used each for the benefit of the provided for in § 23A-43-23 forfeitures public schools of this state. 23A-27-26, provided in 23-3-52 and §§ costs as 542 32-22-55 to be void as it vio- fine, disperses it as a fine. I hold SDCL safeguard against constitutional in- lates the that it was fact conclude therefore Const, jeopardy in S.D. imposed double embodied of the fine an extension
tended as
Const,
§ 9,
VI,
and U.S.
amend. V.
art.
by SDCL 32-22-16.
The Fifth Amendment
United
magistrates have limited
Law-trained
pertinent
provides in
try
and States Constitution
original jurisdiction
concurrent
subject for
part:
person
“No
shall ... be
cases. SDCL
all misdemeanor
determine
jeopar-
put
offense to
twice
pecuniary pen-
the same
The maximum
16-12A-22.
” The South Dakota
dy
is a one
of life or limb ....
1 misdemeanor
alty for a Class
22-6-2(1).
protects
personal
this
Constitution also
fine.
dollar
thousand
§VI,
9,
provides:
in Article
it
right and
in this case im-
magistrate court
compelled any
crimi-
“No
shall be
32-22-16
under SDCL
posed fines of $88.00
give
against himself or
nal case to
evidence
$1,290.00
32-22-55. This
under SDCL
put
jeopardy
for the same of-
be twice
the fine
renders
combination
Owl,
Grey
316 N.W.2d
fense.”
State v.
permissible under the
greater
than that
801,
(S.D.1982),
expressed with re-
803
we
jurisdiction notwith-
magistrate
court’s
specific
Right composed
Bill of
spect to this
identifies it-
standing
that SDCL
by our forefathers:
II
a Class misdemeanor.
self as
against
guaranty
The constitutional
not raised on
jurisdiction
A
want of
(1)
things:
it
jeopardy does three
double
the trial court is without
appeal. When
against
prosecution
a second
protects
Supreme
does not
Court
jurisdiction
acquittal,
the same offense after
Green
by appeal from the trial
acquire jurisdiction
States,
184, 78 S.Ct.
v. United
Viborg
judgment,
School
court’s
Ward
(1957); (2)
221,
protects
it
ble
therefore unconstitutional. Gen., Bastían, Atty.
John W. Asst. Pierre, appellee; Y. plaintiff and Mark Gen., Pierre, Meierhenry, Atty. on brief. Wilka, Hagen & K. Wilka of Thomas Dakota, Plaintiff of South
STATE Falls, appellant. for defendant and Sioux Appellee, WUEST, Acting Justice. LEE, Christopher Defendant Charles Christopher (appellant) Lee was Charles Appellant. threat, pursu- grand convicted of theft 22-30A-4, in that he obtained ant to SDCL 14587. No. Doug money in excess of from Lund. $200 Dakota. Supreme Court of South Appellant appeals. We affirm. Lund, Doug salvage parts dealer from Briefs Jan. 1985. Considered on Dakota, Harrisburg, South received a tele- 20, 1985. Decided March asleep approximately phone call while The call- p.m. 11:55 on November Lee, stated er identified himself Chris black, Doug he Lund’s son was $1,500, him and that he wanted Chad owed Doug money immediately. Lund was said, but all that was unable understand interpreted as a threat. It the conversation “excited,” for his Lund “scared made (son),” “mad.” Lund discussed the call they immediately went to his wife and Falls, in Sioux South their son’s residence owing Their son admitted Dakota. money purchase that it for the was $1,500 hand, having Lund drugs. Not place to Lund’s of busi- and his son went appel- payable and wrote a check ness $1,500, they amount of lant him immediately delivered to and which subsequently cashed. trial, Lund was unable to remember At by appellant. He any specific threats made did, however, testify that threats were not state them. Lund made but he could put further that the conversation testified safety son’s and his him fear for his his Lund testified that when own. Chad they his residence told parents arrived at $1,500 appel- him had to be taken to “or else someone would be lant’s house notes way upon traveling prior it was to its Ward, supra, the fore- being pur stopped practical would for all considerations, going although neither ex- any civil poses imposing render a nor are dispositive, helpful penalty upon overweight haustive vehicles une cost guidance. some provide nforceable.* 169.871, (§ (§ provides supra) note that Minnesota statute ute for a civil * We provides supra) plus per pound pound $610 for a civil in excess 20 cents each pound pound per 10,001 cents each in excess of pounds. 7,000 pounds overweight. The stat California argument county jail, Defendant’s final is onment one dol- hundred fine, 22-6-2(2). lars or both. imposed by if the SDCL that even sanction SDCL nature, to be he 32-22-55 is deemed civil provides upon con- process hearing is entitled to a due before of, others, among viction violations may impose the Al the state sanction. 32-22-16, person fined, “shall be though process his contention that a due in addition to and not in substitution for hearing necessary is before one can be penalties” provided and all for in other deprived property unexceptionable, is added). (Emphasis statutes. SDCL 32-22- see, Miller, e.g., State v. mandatory, 55 then sets forth (S.D.1976),we conclude that defendant has upon by fines based the amount which vehi- given process been all the that is due him weight cle exceeds the maximum allowed in procedural by safeguards reason of the begins SDCL 32-22-16. The fine schedule 32-22-16, him afforded to under SDCL equal per amount to five cents “[i]n pound pound criminal statute. In order to secure a con for each of such excess statute, weight pounds viction of defendant under that over one thousand when required pounds such excess is three thousand prove state was defendant weights less.” It follows that below the guilty beyond a reasonable doubt. What permissible. SDCL 32-22-16 amounts are greater protection he deems would be af Any weight in excess of the 32-22- subsequent him of a forded virtue 16 maximum amounts but less than one proceeding in which the state would be pounds subject only thousand excess required prove only by prepon its case county the one hundred dollars fine and the evidence, derance of the we do not know. jail Any weight sentence. excess over one procedure Whether such a should af pounds additionally thousand activates the prerequisite imposition forded as a to the fine schedule SDCL 32-22-55. provided by of the civil sanction 32- judgment 22-55 is a matter left to the statutory That scheme indicates SDCL See, legislature. e.g., the Iowa and impos- 32-22-55 is an extension of the fine North Dakota statutes cited above. able under SDCL 32-22-16. SDCL 32-22- fined,” 55 states that a “shall be judgment appealed from is affirmed.