APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE JEFF W. DAVIS Judge.
The opinion of the court was delivered by: Sabers, Retired Justice
[¶1.] The State appeals the circuit court's decision that a felony driving under the influence (DUI) conviction cannot be used to enhance the sentence for a principal felony. We reverse.
[¶2.] On December 20, 2007, Martha Anders was indicted for conspiracy to commit first degree murder and attempted first degree murder, or in the alternative, aggravated assault. The State later filed a Part II Information alleging Anders was a habitual offender under SDCL 22-7-7, based on Anders' felony DUI conviction from May 14, 2007. This is Anders' sole prior felony conviction.
[¶3.] On February 20, 2008, Anders filed a motion to strike the Part II Information arguing that, under Carroll v. Solem , 424 NW2d 155 (SD 1988), a felony DUI should not be used to enhance the sentence for a principal felony. The State resisted this motion, asserting State v. Fender , 504 NW2d 858 (SD 1993) as the controlling authority. The circuit court disagreed with the State and granted Anders' motion to strike, concluding that the habitual offender statute was intended to penalize offenders for repeated felony conduct, and not merely because of their status as felons. The court also concluded that a felony DUI is not a true felony in that it does not define an offense, but merely increases the punishment upon a second or subsequent conviction for the same offense. Lastly, it noted that habitual offender statutes must be strictly construed and applied. The State appeals, raising the following issue:
Whether a felony DUI conviction qualifies as a "felony" for the purposes of enhancing a sentence under SDCL 22-7-7.
[¶4.] During oral argument, Anders asserted this Court lacks subject matter jurisdiction over the State's appeal based on an untimely notice of appeal. Procedurally, the circuit court entered its order striking the Part II Information filed by the State against Anders on April 4, 2008. Pursuant to SDCL 23A-32-4, the State filed a notice of appeal as a matter of right from that order. As provided in SDCL 23A-32-6 an appeal under that statute "must be taken within ten days after written notice of entry of the judgment or order." The notice of entry of that order indicates it was provided on April 4, 2008. The certificate of service specifies that Anders served the document "by depositing a copy thereof by Interoffice Mail, and addressed to the said addressee:
Lara R. Roetzel State's Attorneys Office 300 Kansas City Street HAND DELIVERED[.]"
Notice of appeal was filed on April 15, 2008. Anders now contends that the notice of appeal was untimely. The State maintains the notice of appeal was timely filed based on a defective service of the notice of entry or was timely when calculated with the additional days for service by mail even assuming the service was properly effectuated. We decide the threshold issue whether this Court has jurisdiction before reaching the merits of this appeal.
[¶5.] Whether this Court has jurisdiction is a legal issue which is reviewed de novo. State v. Owen, 2007 SD 21, ¶10, 729 NW2d 356, 362. Jurisdictional issues can be raised at any time and determination of jurisdiction is appropriate. Sazama v. State ex rel. Muilenberg, 2007 SD 17, ¶9, 729 NW2d 335, 340 (citations omitted).
[¶6.] Whether this Court has subject matter jurisdiction when the State's notice of appeal was filed 11 days after Anders' notice of entry of order was deposited in interoffice mail.
[¶7.] The ten-day time period to file an appeal under SDCL 23A-32-4 is triggered by the service of the notice of entry. SDCL 23A-32-6. In this case, Anders maintains that she is entitled to have that date calculated from the date she placed the notice of entry in interoffice mail as though it had been hand delivered; thus eliminating days being added to the time ...