*1 provides ARSD 74:29:04:01 further mining permit notice to
any transfer this replacement surety.” include “shall ... [a] added). (Emphasis pro- 74:29:04:06 ARSD surety hibits “release of the first [of] operator operator until the successor sub- replacement
mits a surety[.]” Taken to- gether, provisions the ma- these contradict jority’s surety conclusion that no “[s]ince possession required
bond was for mere permit, required surety no bond was possession for the mere transfer of permit.”
The Board should not have released surety Homestake’s without either: bond (a) requiring posting of a sufficient bond; (b) replacement surety cancelling permit. permit To allow to remain surety “active” without a bond ad hoc lawmaking support without in the statutes regulations.
or the To now allow this un- “permit” to bonded be “transferred” on replacement condition that a bond be filed compounds later the error and further de- applicable regulatory feats the scheme. We should reverse and remand all the way to the Board of back Minerals and
Environment with instructions to do this gets right.
over until it Dakota, Appellee, STATE South SHILVOCK-HAVIRD, Appellant. Laurie
No. 17220. Supreme South Dakota.
Argued March 1991. Decided June 1991. Rehearing July Denied 1991. *2 774 Gen., A.
Roger Tellinghuisen, Atty. Scott Gen., Pierre, Bogue, Atty. appel- Asst. lee; Schmidt, Pierre, Ethan on the brief. Bradsky, Bradsky, Bradsky A. David & Rapid City, appellant.
ERICKSON, Judge. Circuit (defendant)
Laurie Shilvock-Havird counts of use of false convicted two (Class funds (Class misdemeanors); counts of theft misdemeanors); twenty-eight (Class felonies); perjury one count (1) (Class twenty- felony); None of the cases attempted theft decided to that point had use of false instrument dealt with a case which six counts of had tried, but, felonies); mistrial, been (Class twenty- due to a obtain funds (Class felonies). disposed in 180-days. counts of theft five (2) The brought state the case to trial FACTS well within 180-days. But for *3 jury the being unable to reach a ver- reporter, em- Defendant was a counts, dict on all the case would assigned to the ployed by the state disposed have been of at that time. magistrates in the Seventh Judicial Circuit. Legislative Department (3) of Audit con- parties The had Both at all times been ready, willing an audit of defendant’s vouchers for dispose ducted and able to of indigent transcripts to Pen- criminal billed the case.
nington, and Fall counties Custer River (4) The trial court was unable retry through February November 1986 from (5) day prior 5, five trial to March audit, Penning- As a result of that 1989. 1990, of because trial [the court’s] grand jury County ton indicted defendant trial schedule. eighty-four of criminal miscon- on judge The trial then concluded: duct. (1) 180-day adopted pre- The rule was appeal proce- are Defendant’s issues on delay, procrastinations, vent and dila- ap- in Defendant does not dural nature. tory tactics. peal any factual issues which form the (2) public policy None of the considera- her convictions. basis for support 180-day tions which the rule present. were I ISSUE (3) conduct, she, in which [Defendant’s] A WHAT IS EFFECT OF MIS- counsel, through consented to a TRIAL ON THE COMPUTATIONOF THE 26, date, March 1990 trial waived her 180-DAYS WITHIN WHICH PROSECU- right days. to trial within 180 ALL MUST DISPOSE OF CRIMI- TORS 180-day in The rule effect at that time NAL CASES? “disposal” by “plea required of the case of in arraigned was on the contendere, guilty or nolo trial or dismis- Defendant 6, September dictment on 1989. The 180- days appear- of the first sal” within 180 day by deadline mandated SDCL 23A-44- ance. SDCL 23A-44-5.1. 4, 5.1 was March 1990. The first 180-day rule that the 8, January It ended commenced on 1990. and that absent a motion for is absolute 1990, 16, days January
five trial
later on
delay
by
prosecution
filed
good cause
jury
judge
informed the trial
after the
days,
prior
expiration
to the
of the 180
they
deadlocked.
were
Hoffman, supra,
requires
dismissal.
23, 1990,
court,
filing requirement
motion
is not
January
by
the trial
On
Hoffman
Tiedeman,
letter,
In
suggested to counsel a re-trial date
absolute.
(S.D.1988),
5, 1990,
26,
this court found
or March
1990. N.W.2d 237
of either March
thereafter,
of
case where there is an issue
Shortly
in an unrecorded tele-
court,
conference,
26,
impression”
set
“first
before
phone
March
was
filing requirement is not
eventually
motion
as the trial date. The trial was
Hoffman
14,
controlling.
began May
1990.
reset and
of
the issue
Tiedeman
extend
dealt with
state did not file a motion to
1990,
subsequent refil
dismissal and
180-day period prior
effect of a
to March
charges
running of
Hoffman,
ing
on the
State v.
of criminal
as mandated
instance,
we
180-day period.
(S.D.1987). March
N.W.2d 373
On
of a mis
dismiss,
the issue of the effect
deal with
defendant filed a motion
running
on the
subsequent re-trial
hearing,
After a
trial and
the state resisted.
period.
23A-44-5.1
180-day
specifically found:
of
trial court
Tiedeman,
not
Additionally,
dates.
the record does
silent on this issue.1 As
180-day
in this
ever
impression
first
indicate that
rule was
an
this is
issue
Therefore,
filing re
filing
the motion
or considered
to the
court.
discussed
dispositive
of this issue.
1990.
quirement is
the motion to dismiss March
Feather,
As
State v. Black
findings
the tri
reviewing
(S.D.1978),
delay
any
“caused
ac-
“good
concerning
reasons
al court
of counsel taken without the concur-
tions
clearly
stan
erroneous
delay,”
cause
con-
rence of the defendant” cannot be
Kerkhove,
applies.
dard
review
defendant.
sidered as a waiver
(S.D.1988). All of the trial
support the
this record does not
except
issue of
findings,
on the
court’s
180-day rule.
finding of a
of the
waiver
waiver,
clearly supported by the evi
“dispose”
The failure to
dence
this case.
valid
there
not a
waiver
While
days
not caused
case within
rule,
180-day
light of all
other facts
tactics,
dilatory
but
by procrastination or
circumstances,
delay
mis-
between
*4
inability
jury
of a
come to an
rather the
to
was
and for
trial and re-trial
reasonable
of
Then a combination
ultimate decision.
good cause.
the trial court is
factors, including the trial court’s schedule
issue.
affirmed
complexity
the
of other trials and
five-day
required at
which
least
II and
ISSUES
III
re-trial, caused the second
span
time
for
PERJURY, AS SET FORTH IN SDCL
IS
days.
beyond
180
postponed
to be
trial
4-9-4, A
INTENT CRIME?
SPECIFIC
complex
involving over
This
was
“USE
FALSE
IS
CRIME OF
OF
thirty
and
hundred exhibits
witnesses.
TO OBTAIN PUBLIC
INSTRUMENT
took
parties
All
knew the first trial
five
FUNDS,”
4-9-5, A
IN-
SDCL
SPECIFIC
circum-
days
complete.
to
Under these
CRIME?
TENT
stances,
117-day delay between the
charged
Defendant was
with violations
was
and for
mistrial and re-trial
reasonable
4-9-4 “Declaration in lieu of veri-
of SDCL
good cause.
perju-
or
statement as
fication
oath—False
Additionally, the
found
trial court
4-9-5, “False
to
ry,” and SDCL
instrument
180-day require
that defendant waived
public
as theft.” Defendant
funds
were
in an unre
grounds
ment. The
that
specific intent crimes.
contends these are
therefore,
corded,
tele
non-reviewable
otherwise, and in-
The trial court found
counsel,
phone
with defense
conference
they
general
jury
structed the
that
were
parties
prosecution,
court and
intent crimes.
26, 1990,
upon
agreed
a March
trial date.
complicated
This
is further
matter
“gen
or not a crime is a
Whether
informed
fact
that
the defense had
de
“specific
intent” or
intent” crime
eral
intending
to file a motion
court
it was
upon
legislative enactment. “The
pends
its
change
motion
of venue. That
doing
an act
legislature may forbid the
of
apparently
because the defense
abandoned
knowledge
regard
the intent or
without
county
substitut
could
choose
to be
Nagel, 279 N.W.2d
of the doer.”
time,
ed. For a
this caused the
Rash,
(S.D.1979);
294
space
time
tentatively reserve
and court
(S.D.1980). Additionally,
pending
separate
in at
counties
least two
specific
legislature may make a crime a
filing
motion.
of this
one set of circum
intent crime under
stances,
intent
under a
general
the de-
and a
crime
nothing
There is
to indicate that
to,
circumstances. United
party
aware of
different set of
fendant was a
or was
Lardieri,
(1974),
F.2d
concerning trial
unrecorded discussion
States
26, 1991,
again
follow-
Supreme
re
such
is to
tried
February
If
defendant
1. On
mistrial,
23A-44-5.1,
period
days]
ing
shall
such
pealed
[180
effec
...
reenacted SDCL
1, 1991,
mis-
July
specifically
from the date of the
commence to run
addressed
tive
trial, ....
this issue as follows:
(3rd Cir.1974);
rehearing,
quirement
fully which all instrument. entered its concurrent sentences. While false concurrent, specific sentences were sen part: pertinent 23A-6-23 states tence was set forth each count. The charged may be or offenses Two more question remains whether concurrent sen separate ... same indictment “general tences constitute sentence?” offense, if the offenses for each charged; are of the same or similar ... (even Two concurrent sentences when act based on the same or character or are same) exactly their are constitute terms transaction.... punishments “gen- two for one offense. A eral sentence” is one sentence common case, culminated in each act which two or more convictions for the commission charged the submission of voucher was single example perjury For 22-30A-1) offense. (SDCL use of as theft both offenses, theft are distinct two funds false instrument obtain (SDCL separate 4-9-5). language justify 4- convictions and sentences. of SDCL However, theft instruments to 9-5 states that violation this statute and false In merely theft. each there was as de- constitutes funds theft theft, only resulted in two separate ways accomplish one act of scribe the sin- charges, separate separate convic- gle separate offense of While con- theft. tions. only proper, victions are one common sen- may imposed. example, tence For Defendant moved to consolidate the could read “that for Count sentence indictment. counts contained Use of False Instrument to Obtain Public trial court that motion. Defendant denied Funds, Theft, and Count the Defendant ultimately convicted and sentenced to years. serve ten concurrent sentences on all counts. Teutsch, Therefore, while the af- 80 S.D. trial court (1964), 115-116 this court held: in its denial of the motion consol- firmed idate, and the the sentences reversed may The same consti- act transaction sentencing matter is remanded ac- justify distinct offenses and tute two opinion. separate sen- cordance with this conviction on both and *6 consecutively to if each of- tences run by requires fense as defined statute V AND VI ISSUES of not
proof some fact or element re- IM- WHETHER SENTENCE quired to establish other.... POSED CONSTITUTES AN ABUSE OF sepa- permissible charge It is to in ... AND UN- DISCRETION AND CRUEL rate counts the commission of the same USUAL PUNISHMENT? ways in offense in different order to may meet which be WHETHER THE TRIAL COURT PROP- evidence ad- duced. If a defendant convicted on ERLY THE AMOUNT OF ESTABLISHED offense, counts, relating single two to a RESTITUTION? imposed_(ci- general may sentence be remaining two issues also Defendant’s omitted). tations There- relate to the trial court’s sentence. doctrine remains viable. Teutsch fore, court, of the assistance the trial Baker, (S.D.1989). 440 284 N.W.2d
State those issues will be dealt with. charged with this defendant was (a) discretion/cruel and Abuse accomplished theft under two different sets of Defendant was punishment. unusual count of circumstances. Each describes a of criminal eighty-four of counts convicted accomplishing different method of that of- thirty sentenced to misconduct. She was fense, only one of but there was offense Pennington County jail days in the Baker, supra. As in theft committed. use of false Teutsch, for two counts of of convictions defendant was convicted funds and two offense; obtain relating single counts to a there- misdemeanors), (Class I fore, general may imposed. of theft sentence be counts
779 concurrently. served For the sentence not each to be does shock the of conscience twenty-eight perju- generally, of men nor of convictions this court. sentenced to four ry, she was concurrent appeal this On court is referred to three year penitentiary. in the state De- terms involving other cases theft appear which ordered to concurrent fendant was serve an at attempt arguing that this sentence year penitentiary ten terms on the First, disproportionate. this issue must twenty-six convictions counts of use of be level. State v. raised at funds, false instrument Groethe, (S.D.1989). Sec- (Class felonies). theft attempted For the ond, showing provides inadequate this an (a felony), Class 5 was sen- conviction she probe record to this contention. As years penitentiary. four tenced to Janssen, State v. 371 N.W.2d twenty-five And for the convictions for (S.D.1985) (Henderson, Justice, concurring (Class felonies), counts of theft defendant result): year ten was ordered to serve concurrent statistics, criteria, There no history the penitentiary.2 terms in cases, studies, or court from records could make intelli- an It was further ordered that six gent appellate propor- review as to ... imposed be sus- year the ten terms would tionality Eighth under the conditions, Amendment. pended including certain upon taken, moneys restitution costs (b) Restitution. Defendant contests the audit, prosecution. certain costs of the amount of restitution sen- ordered. This imposed prior tence was to this court’s argues that these sen Tuttle, State decision in an and con tences are abuse of discretion (S.D.1990), where it was mandated that punishment. stitute cruel unusual process hearing due on restitution be held. of a There is a two-fold test to our review state that a review court to determine is so con sentence whether it Tuttle requirements; services satisfies stitutionally offensive as the con to shock had an opportunity defendant First, punishment is the exces science. so sentencing; heard at and that restitution disapproval cruel sive or so “as meet the nature, if prospective this case is and condemnation the conscience and basis, made, voluntary so on a it is done second, generally.” men reason of And therefore, hearing necessary. no punishment whether the is so excessive so cruel as to shock the con collective First, a review court services Reed, science of this court. satisfy process requirements. does due Phipps, (S.D.1990); N.W.2d 409 function is to assist Court services’ court, independent not act as an tribunal. opportunity did have an employed position
Defendant was in a While defendant *7 sentencing, to the time of position trust. used that to be heard at She taxpay- willingness pay to the commit was a did indicate a these crimes. While she offender, back, nothing pat- except a court services’ ers first these offenses formed the the report submitted on issue of period tern of criminal a conduct over Defendant offered which amount of restitution. years almost two one-half from believed, information, which if sub- a Her ac- would she derived income. substantial intentional, stantially to reck- reduce the amount restitution. tions were opposed as tests, formally negligent. should be reviewed. less or this That matter Under both convictions, concurrently, to must be sentences der 2. On the four misdemeanor to run theft counts of instrument and two of false of confinement.” "A sentence place counts of use the same funds, thirty day to obtain county the and one ... in the penitentiary in the jail peni- were run (cita- sentences the concurrent to concurrently.” jail be served out cannot tentiary sentences. omitted). tions sentencing is a limitation on a court’s [T]here Wooley, 461 N.W.2d 120-121 authority to order concurrent of mul- service (S.D.1990). sentences_ sentences, tiple in or- "[T]wo HENDERSON, (concurring in Justice to was sentenced concurring specially part). part; years were of the ten penitentiary. Six the agreed to if defendant suspended to be on issues with the dissertation I concur (sus “SDCL 23A-27-19 restitution. make 1, 2 and 3. gives a sentenc merely pended\sentences) issue 4 which holds that I concur on authority to have condi ing judge is and the matter are reversed “sentences suspended sentence places he on a tions sentencing in accordance remanded by the Board of Charities[.]” enforced Therefore, (a), opinion.” under this with Solem, Turo the trial court must consider issues Therefore, prospec not it was the extent of deter- sentences anew to of Par It for the Board is tive nature. anticipato- mining proper a sentence. It is a and enforce to establish dons and Paroles writer, opinion pass this to ry, 23A-28-3, plan. restitution un- upon the of discretion/cruel and abuse (S.D.1989). How Wolff, 438 N.W.2d punishment aspect of this when usual delivery ever, prior to defendant’s Judicially, being sentence is reversed. juris the circuit court has penitentiary, difficult, impossible, if a is take it desires, diction, plan a if so formulate it until it is on an ultimate sentence position in supra. Wolff, of restitution. adjudicated. stance, to establish the circuit court chose sentencing, In connection with Therefore, a amount of restitution. concerning be made record should below necessary. hearing was process due so that a any future sentence Helm/Weik- analysis may applied by the trial er ordered state nor defendant Neither the permit a record would this court. Such Therefore, we trial to be transcribed. upon an to review sentence based if the amount of unable to determine Janssen, adequate record. State the trial to was established at restitution (S.D.1985). A disproportionali- hearing degree separate that a such appel- analysis raised at ty cannot be If the restitution unwarranted. would be level unless is raised below late court hearing conjunction with the sen- is held studies, data. statistics and with tencing hearing, must know the defendant hearing sufficiently to the to be this under I concur in the entire dissertation the issues. record (b), able contest issues 5 and restitution. to allow determination. insufficient SABERS, (concurring specially). Justice right to a resti- defendant has hearing. tution agreement my specially I write to state resentencing on 26 the remand for
with felony and 26 counts theft CONCLUSION to obtain felony use of false sentencing and restitu- the issues of On agree I that 26 common sen- public funds. tion, and remanded this case reversed on these convic- may imposed tences other issues the trial trial court. On all tions, 52. used but not At the rate is affirmed. court, still amount to could concur- 10-year increments served rently. MILLER, C.J., concurs. may not techni- Although this sentence HENDERSON, J., part concurs punish- cally constitute “cruel and unusual *8 part. concurs in
specially
constitution, it
of the
ment”
violation
to,
one com-
especially
seems
when
sure
J.,
part.
SABERS,
specially concurs
lowly
reporter
court
plight
this
pares
Simpson, 467
attorney
John
with
AMUNDSON, J., dissents.
(S.D.1991),
pay
failed to
who
WUEST,
and federal
ERICKSON,
state sales tax
Judge, for
Dakota
Circuit
South
and
a
period
tax for
income
J., disqualified.
suspended imposition
majority opinion,
received
of sen-
The
by its holding on
1,
tence with restitution.
giving retrospective
Issue
application
to the reenactment of the new 180-day rule
AMUNDSON,
(dissenting).
Justice
adopted by
this court
to its effective
1,
of July
date
1991. The decisions cited
majority opinion disregards
settled
unambiguous
above
clear and
in their
180-day
law of this state on the
rule.
directives
certainly put
State on notice
In
Hoffman,
Under facts of this required addressed mo- simple questions need be answered. tion court in timely with the trial manner. First, stated, disposed previously was the defendant’s case of As it was not filed days within 180 from the date of defen- I case. would reverse. appearance judicial dant’s first before a Second,
officer? No. did State file a mo- good delay prior expi- tion for cause to the 180-day period. ration of the time No. facts, undisputed With these I cannot good join majority. conscience