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06/01/88 STATE SOUTH DAKOTA v. DAVID HERRLEIN

June 1, 1988

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
DAVID HERRLEIN, DEFENDANT AND APPELLANT



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL COURT CHARLES MIX COUNTY, SOUTH DAKOTA, HONORABLE E. W. HERTZ Judge

Miller, Justice, Wuest, Chief Justice, Morgan and Sabers, Justices, concur. Henderson, Justice, concurs in result.

The opinion of the court was delivered by: Miller

MILLER, Justice.

This is an appeal from a revocation of probation grounded on a conviction for a subsequent criminal offense. We affirm, holding that by virtue of a prima facie showing by State, defendant had the burden of establishing the claimed invalidity of the subsequent conviction.

FACTS

In November, 1986, defendant, represented by counsel, entered a guilty plea to third-degree burglary in Charles Mix County, South Dakota. He was represented by counsel at that time. The trial court (Judge Hertz) ordered a suspension of imposition of sentence and placed defendant on probation under various terms and conditions, including that he obey all laws and that he refrain from the use of alcohol.

Subsequently, and while on probation, he apparently was charged by information in Brule County, South Dakota (another judicial circuit) with two counts of contributing to the delinquency of minors (SDCL 26-9-1) and one count of having an open container of alcohol in a motor vehicle (SDCL 35-1-9.1). (The information, a copy of which is appended to State's brief, alleged: Count I, that he furnished beer to three minor girls; Count II, that he transported the juvenile girls (two of which had been reported to the police as runaways) to another community; and Count III, that he had an open container of an alcoholic beverage in a motor vehicle. The Brule County State's Attorney later dismissed Counts II and III of the information.)

Defendant appeared before a circuit Judge in Brule County and pleaded guilty to Count I of the information. At those proceedings he was not represented by counsel.

Upon becoming aware of this conviction, defendant's probation officer (Mr. McCabe) submitted a "Probation Violation Report" to Judge Hertz advising of the conviction. *fn1 The report further advised that on the night of the violation defendant had been drinking alcohol, as indicated by a portable breath test administered by the arresting officer.

The Charles Mix County State's Attorney filed a petition for revocation of probation attaching the probation violation report and a copy of the Brule County judgment of conviction as the grounds for revocation. A hearing was held on that petition before Judge Hertz, at which time defendant was represented by counsel. At this hearing, the only substantive evidence submitted was a certified copy of the Brule County conviction. The probation officer was called as a witness, but since he had no personal knowledge of the facts surrounding the incident in Brule County, he gave no substantive testimony. *fn2 The only resistance to the probation revocation presented by defendant was his argument that the Brule County conviction resulted from a proceeding where defendant was not represented by counsel and the record did not affirmatively establish that his right to counsel had been waived. He argued that the language in the judgment of conviction to the effect that the court had "advised the defendant of all constitutional and statutory rights pertaining to the charge that had been filed" was insufficient to establish a knowing waiver of his right to counsel.

Judge Hertz, in both his oral ruling and his written findings of fact and Conclusions of law revoking probation, relied exclusively upon the Brule County conviction. *fn3 ...


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