State v. Hoffman

сonstrued to so policy shall be every such policy to the anything in such

provide, notwithstanding.

contrary argument problem with Klatt’s provides a direct action statute insureds) (for

against the insurer In policy.” terms of the other

“under coverage

words, if there insurance policy,” Klatt terms of the

“under the against insurer not prevail

could agents. As

against the insured’s insurance no point there is cover- above

indicated

age policy. under provide injured person an does

58-23-1 bring against action ‍‌​‌​​‌‌‌‌​​‌‌‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​​​‌‌‌‌‌​​​‌​​‌‍an right agent for failure to

insured’s insurance Therefore,

provide coverage. Klatt full come within the statute and he

does not standing City’s insurance

has no sue coverage. inadequate

agents claimed

Therefore, summary judg- affirm in favor of Continental

ments

FIC/Worth. Justices

All the concur. Dakota, of South Plaintiff

STATE Appellee, Itzen, HOFFMAN,

Chadley R. Robert C. Hartog, Gege Richard T.

Gloria Den Otton,

Breum, Michael David and Les Estenson, Appel

ter Defendants

lants. 15358, 15393, 15417, 15420,

Nos.

15423 and 15533.

Supreme Court of South Dakota.

Argued March

Decided delay. prose-

for the In the event of the dispose cution’s failure to of the action required by within the time limit section, the action shall dismissed. adopted by The rule was this court on after consideration at the hearing previous rules the December. The rule took effect on of 1985. Each the defendants had been arrested made appearance prior their first to the effective оf date the rule. None the of defendants brought days were to trial within 180 the of effective date the rule. Hoffman’s appeal is on petition before us for interme- appeal diate and the balance are direct peals judgments from of conviction entered County. charged Minnehaha Hoffman is felony triable circuit court charged the others while all with mis- Kern, Gen., Atty. Pierre, Janine Asst. demeanors triable court. plaintiff appellee; Mark V. Meierhen- ofAll the motions for dismissal these brief; ry, Atty. Gen., Pierre, on appeals were heard before the same trial Kading Moore, D. Rasmussen, Scott of judge pretrial motions. trial court Kading & McGreevy, Falls, for Sioux de- denied the various motions because it Hoffman, Chadley appellant fendant and R. the found that satisfy defendants failed to Larson, Jeff County Minnehaha Public Wingo, factors set out Barker Falls, Defender, Sioux for defendants and U.S. S.Ct. L.Ed.2d 101 appellants Robert C. Itzen and Lester Es- (1972), particularly the of lack affirmative tenson. showing trial of demands for and the lack Titze, County Drake A. of prejudice Minnehaha Pub- defendаnts. Defender, lic Falls, Sioux defendants trial court found that cause exist appellants Gege Hartog, Gloria Den delay totality ed for based Breum, T. Richard and Michael David Ofc- circumstances. ton. passing We note in that denials of

MORGAN, Justice. dismissals under SDCL 23A-44-5.1 are not appealable to either the circuit court or this The defendants in this consolidated aс- lacking judgment petition final or a appeal tion denial of the motions to dismiss appeal for an intermediate as was done ‍‌​‌​​‌‌‌‌​​‌‌‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​​​‌‌‌‌‌​​​‌​​‌‍in respective their cases due to State’s failure appeal. the Hoffman comply provisions of SDCL 23A-44-5.1, so-called rule. glean We three essential from issues We reverse and remand with instructions. parties. First, of thе briefs we must deter- provides:

SDCL 23A-44-5.1 mine whether the defendant must make any showing beyond expiration prosecution shall of all period by plea stated guilty criminal cases statute. nolo Secondly, contendere, must define trial or we what constitutes dismissal within one “good eighty days delay, cause” for hundred from the date the which would toll running period. has appеared statutory first before a Final- judicial ly, officer on complaint or indict- we must determine if a dismissal for delay Any ment. shall be ex- violation statute is a dismissal with cluded the trial prejudice. court finds statutory prior expiration must filed to the creates 23A-44-5.1 180-day period.* recognize, constitu We to a defendant’s rights addition however, way By trial. that SDCL 23A-44-5.1 does not right to a tional statute, affirmatively require stated on its face to file a motion for right disposition prior expiration to a defendant’s unless therefore case within 180 deter his criminal delay. may thirty days shown for the mine that have good cause can be State statutory filing is a and not of this decision to file 23A-44-5.1 motions for requirement, thus it stands delay pending cause constitutional that footing than constitu legal on a different have exceeded the analysis sepa requires an claims and tional parties disagree The also as to what claims. distinct from constitutional rate and delay should constitute cause for un Wentland, 582 F.2d States v. See United der the statute. The main reason for the denied, cert. (5th Cir.1978), 439 U.S. 1022 State, according delаy, to was that (1979); 1056, 1133, 59 L.Ed.2d 96 99 S.Ct. congested very court docket was and the Farmer, People v. (Mich. 218 339 N.W.2d system could not handle the volume of Ferris, ex rel. Rabe v. State 1983); 97 agree cases. We the docket (1980). 63, 151 293 N.W.2d Wis.2d Indeed, congested. second circuit was these fundamen recently underscored have congestion ultimately docket was a factor involving differences in сases habeas tal leading adoption to the of SDCL 23A-44-5.- Solem, corpus relief. Goodroad 406 agree Michigan Appellate 1. We (S.D.1987). 141 N.W.2d “[e]xcept for Court and hold that short- 23A-44-5.1 is We believe SDCL congestion by caused term docket extraor It re unambiguous on its face. clear and circumstances, dinary delay by caused disposition of criminal matters quirеs a congestion docket is attributable Smith, lacking good for prosecution.” People v. days 180 within 143 Mich. the statute to be delay. We do not deem 122, 127, 496, App. 371 499 N.W.2d re Court of California Rhine with the constitutional synonymous Ct., trial, speedy Mun. thus the four- quirement hart v. Santa Barbara-Goreta for a a test used to determine whether 916, factor Cal.Rptr. 35 200 677 Cal.3d trial set has receivеd (1984), congestion that court 1206 also held Wingo, in Barker v. 407 U.S. 92 forth good cause for does not constitute (1972), inappli 33 L.Ed.2d S.Ct. 180-day statute. The California under a alleged analysis of an violation to an cable agreed that the burden of show court also Id. the trial court 23A-44-5.1. Since of SDCL ing good prosecution. cause is factors, we find that it utilized the Barker Cal.Rptr. 677 P.2d at at error. We hold that committed reversible run defendant has established the once a claim sympathic to State’s Nor are we period he has ning have 23A-44-5.1 should been that SDCL dismis prima facie case for established years. We of two phased over Holiday, sal. See also State 335 N.W.2d war- that such a was do not believe (S.D.1983), simply this court wherein ranted, the faсt that especially view of preliminary if a days to determine counted announced proposed rule was required time hearing held within the November, 1984, Bar Newsletter and period. prior to hearings held public 180-day rule. Further- adoption 180-day period may be tolled more, adopted by this court on the rule was good cause for and can show Statе moves 7, 1985, in ad- nearly six months finality, certainty and delay. To foster for date. effective vance of the for a hold that a motion * running Thus, any delay granted toll the any should applies extent to the court if a defendant purpose, statutory period, delay apply State should also for whatever to what the court for a determination to periоd, MILLER, J., to this initial six-month

In addition dissents. had additional which HERTZ, Judge, sitting Circuit pending criminal actions. SABERS, J., disqualified. Considering flexibility of our Unified System we that this nine- Judicial believe WUEST, (concurring spe- Chief Justice period provided month sufficient transi- cially). period. tional opinion concur the majority State also claims that SDCL 23A- judicial take congestion notice the so-called ‍‌​‌​​‌‌‌‌​​‌‌‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​​​‌‌‌‌‌​​​‌​​‌‍apply 44-5.1 should not cases where the dilatory was a result of practices which appearance place prior initial took been adopted now corrected. We 1,1985. reading While a strict the stat prevent delay, rule to procras- claim, arguably supports it ute would tinations, dilatory practices, and we interpret be absurd statute allow intend enforce it. Justice Henderson ing in pending that result. We hold that strong against makes a argument ap initially cases where defendant “grace period thirty days.” of If our rul- peared prior July to ing applied only to the situation in the began running period on circuit, probably support second I would his position. But, applies it does not—it Finally, of we address the issue State. whole We have now made it clear required by whether dismissal SDCL good the motions for must be prej 23A-44-5.1 should be a dismissal with prior made the expiration to of the 180 simply open leaving udice or dismissal days. 30-day grace Even period, with possibility charge. Allowing of a new good the State must show cause. simply recharge to offenders State dismissal under 23A-44-5.1 would SDCL HENDERSON, (concurring Justice totally purpose defeat the behind the rule. part, dissenting part). charge again once new would place may burdens on the which This decision spirit flows with the of counsel, legal include the retention of new 85-4, Rule Court now codified as bond, posting spending of a new and 28A-44-5.1, with one salient ex- jail, time in of additional each would which сeption, which is elucidated below. hardship expense involve new to Although I agree rationale, its with basic Dooling, defendant. Hilbert v. 476 F.2d following sentence, way to my of think- (2d Cir.1973). 365 ing, holding: its core debauches and remand the trial court reverse We therefore may determine that State grant instructions to with motions thirty days have filing after the of this prejudice dismiss with under SDCL 23A- good decision to file motions for 44-5.1. We further this determine pending cases that already prospective only decision is be and shall exceeded the applicable to defendants whose beyond my It is ken to arrive a final peals proceeding we have considered conclusion, expressed such in the appeals such other defendаnts whose majority opinion, when the rationale all prior entry filed have been supporting of the authorities absolute and decision. complete discharge contrary run to such a duty is prosecu conclusion. It

HERTZ, Judge, Circuit concurs. courts, defendant, tion and the not the WUEST, C.J., specially. concurs dispose of a case. See United States v. HENDERSON, J., pаrt Didier, (2d Cir.1976).* concurs in 542 F.2d 1187 part. and dissents the Commonwealth must come * special permit laxity the first four words SDCL 23A-44-5.1. under its Note court rule. states, prosecution Deason, (Colo.1983). "The dis- It pose. inter alia: shall People See (Emphasis supplied.) Colorado will ...” request an extension of time fice of forward rule letter which is expired. the time under the rule has September dated 1985. This letter fore- before McLaughlin, See Commonwealth cloud, reflected, inter warned a storm for it Pa.Super. 488 A.2d 63 alia, as follows: creating purpose entire behind this Su- During August, the month of I was preme Court Rule South Dakota was to working Wright your with Tom office disposed ensure that cases be within 180 Daugherty and Bill attempt to re- prosecution days unless the сomes forward duce the appear misdemeanor cases that showing then, Why, cause. piling up Magistrate’s to be Divi- majority opinion permit does the and toler- began sion. We seventy-nine cases. delay by giving months of now ate six By setting trial, these cases for we were thirty days neglect to whitewash its able to of most but not all of and, therefore, very self dеstruct the core them. There a matter that should still holding of the decision? These criminal concern, some however. disposed cases are mandated with- undoudtedly You are aware of the [sic] in 180 or be dismissed unless [day] requires dispos- which grace period cause is shown. There is no any al of criminal matter within that thirty days. majority opinion As the unless cause is shown. This unambig- expresses, the rule “is clear and became effective on 1985. A uous on its face.” Let us examine how goodly number of the the Au- special another state looks at its court rule: gust trial list were older than Although the time for trial under the days. begin While the rule does not constitutional trial rule is deter- to work or mark time on a July case until basis, case-by-case mined on a this court 1, 1985, age of these cases should be special requir- adopted has a court rule potential problem. some indication of a ing dismissal when certain time limits are why backlogs I am not sure these con- provide degree in a not met order to but, appear; problem tinue to does specificity provided by cаse-by- that ‍‌​‌​​‌‌‌‌​​‌‌‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​​​‌‌‌‌‌​​​‌​​‌‍not seem to be an annual one in this circuit. analysis. case The State must act not suggest you I would like to review this only conformity provisions your matter If you with staff. need trial constitution, also the stric- but within judges, judges either the local circuit special tures of court [the rule]. help judges brought could would be Edwards, 208, 213, 94 Wash.2d from another circuit. Darden, 620, In (1983), During frame, storm-brewing 99 Wash.2d 663 P.2d 1352 Washington held that magistrates policy Court in this circuit had a Edwards applied retroactively should in misde- one “free” reset for state rule, reveal, because it was not a new an in this meanor cases. Statistics interpretation already existing rule. record, of an from that a six-month grace period applied, A not at should the circuit time, enabling “get the State to its feet judges disposed court of ten misdemeanor ground,” speak, on the so to because it has cases which transferred to their re- were appellate confronted with a loss at the been magistrate spective court from court but If the not level. has been fifty transferred more than misdemeanor followed, ruling in accordance with the core from the circuit court back to the cases majority opinion, the rule has no during magistrate It is noted that level. Allowing recharge, thirty- teeth. via a period, this same six-month there were day grace period, make the rule would magis- dates of proximately twelve trial counterproductive and thus reward a fail- left trate cоurt calendar time which were comply ure to with the rule. open Friday afternoons. Per the tran- on evidence, script Motion to Dismiss before A, received in Cir- Via Exhibit 23-25, 1986, Judge Hoyt April the Cir- Judge on cuit Gene Paul Kean warned the case load Attorney’s cuit Court Administrator offered County Minnehaha State’s Of- Attorney’s udice,” has, lists to the State’s Office but majority essencе, partial- ly, fully, offer declined. Six cases were repealed 23A-42, was not SDCL ch. magistrate tried jury to a court legislature from wherein created statutes of 1,1985 to October there were limitations criminal actions. during no cases tried 2. the months November and December To hold the motion must be filed backlog of A tremendous cases de- expiration of bеfore the the 180 is too veloped, respect particularly with to driv- strict and harsh. If cause for ing alcohol, while the influence of under exists, truly why presented can it not be Deputy Attorney and one State’s as- was the court within reasonable time after the primary responsibility signed the of han- expiration of days, the 180 with timeliness dling all of these cases. After mоtions to along to be considered other filed, began flurry dismiss were there applying factors usual tests for due activity backlog. to take care Exam- diligence, neglect excusable and reasonabil- ples: magistrates adopted a new “reset ity? majority’s interpreta- draconian policy”; try a committee was formed to will, fear, tion cоme back to haunt this problems; meetings cure future trial took day Court. I envision the that some mur- place Attorney’s between State's Office derer, rapist, or child molester will be dis- personnel scheduling and court discuss charged under because problems. Candidly, motions to dismiss fide, some clerical error or bona triggered heightened effort to oversight, leaving (who the People also and it is indeed unfortunate cases that the rights in society) our no remedy warning Judge by Circuit Gene Paul Kean truly courts. It is fortunate that the not harkened unto earlier was are principally involved here DWIs peril It after the unperiled time. was felony serious injured cases with meetings and procedures new dead victims. adopted. my opinion, held and the State ran, warned and the time under this We must remember that this rule was rule, began the State before it make principally passed to respond address and remedy efforts to this situation. These to the unfortunate and ineffective schedul- increasing backlog efforts ing practices truly system" that “the reflect had (which, Sioux pointed Falls by out ability cope problem earlier had Justice, Chief apparently been now only, diligence it gusto, due and so corrected). Little, if any, blame Thus, for join majority acted. me delay in these can be attributed to opinion “grace period” in thirty-day runs prosecutor’s office, yet they have the purpose counter to the and the facts burden under the rule аnd the sanctions which the rule was established. majority opinion. under the This truly is MILLER, (dissenting). Justice unfortunate, especially they since have lit- I dissent. would affirm the trial input tle no into scheduling practices application Wingo court’s of the Barker v. of the courts. Additionally, criteria. far- because The scheduling practices of magis- reaching, widespread possible ramifications court, in trate addition to other obvious decision, majority I must make the causing extending frailties in these de- following points: lays, prey laid to defendants and defense recognize counsel who is one characterization SDCL 23A-44- the best defenses and therefore attempt to by 5.1 majority statutory provision aas system use the to their by own benefit misleading. procedural somewhat It is a causing perpetuating delays. We should adopted by recognize this Court as Rule 85-4 are every there two sides to (the “180-day rule”). holding controversy so-called and be realistic in our applica- that dismissal under this rule prej- important Rather, is “with tion of such issue. goes beyond majority strict requirement pronouncеs that is unnecessary and unreasonable. A. and Dr. Franklin

Cecil JOHNSON Johnson,

C. Plaintiffs and

Appellants, BIEGELMEIER,

Frank Defendant Appellee.

No. 15433.

Supreme Court of South Dakota. Ridgway Brady, E.

Michael Kabeise- man, Johnson, Yankton, plain- Reade & appellants; R. tiffs and John Kabeiseman Kabeiseman, Brady, Johnson, Reade & Yankton, on brief. Goetz, T.

James Goetz Hirsch & Klim- isch, Yankton, appellee. for defendant ‍‌​‌​​‌‌‌‌​​‌‌‌‌​‌‌‌​​​​‌​‌‌​‌‌​​‌​​​‌‌‌‌‌​​​‌​​‌‍and MORGAN, Justice. appellants,

Plaintiffs Cecil A. John- (Johnsons) Dr. son and Franklin C. Johnson appeal from an adverse decision of the trial court after a trial conducted to the court. Biegelmeier appellee, Defendant and Frank (Biegelmeier), adjudged the owner of

Case Details

Case Name: State v. Hoffman

Court Name: South Dakota Supreme Court

Date Published: Jul 15, 1987

Citation: 409 N.W.2d 373

Docket Number: 15358, 15393, 15417, 15420, 15423 and 15533

Court Abbreviation: S.D.