APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA HONORABLE JOHN L. BROWN Judge.
The opinion of the court was delivered by: Konenkamp, Justice (on reassignment).
ARGUED ON FEBRUARY 18, 2009
REASSIGNED MARCH 31, 2009
[¶1.] Defendant was indicted on multiple counts, but the State dismissed the indictment, only to later reindict him on essentially identical charges. Defendant moved to dismiss the subsequent indictment, claiming a violation of the 180-day rule. In granting the motion to dismiss, the circuit court calculated the 180 days from the date of defendant's appearance on the first indictment and, after excluding certain days, concluded that the 180-day rule had been violated. We reverse and remand because the State's dismissal was not an attempt to circumvent the 180-day rule; therefore, the time between the dismissal and defendant's appearance on the subsequent indictment should be tolled.
[¶2.] Doug Andrews (defendant) was indicted by a Hughes County Grand Jury on May 4, 2007. He was charged with seven counts of bribing a public officer, in violation of SDCL 22-12A-6, and one count of grand theft, in violation of SDCL 22-30A-1 and SDCL 22-30A-17. The grand jury also indicted Clayton Sonnenschein of seven counts of solicitation of a bribe by a public officer and one count of grand theft. Sonnenschein's and defendant's charges arose out of the same incidents.
Both defendants made their initial appearances on May 7, 2007.
[¶3.] Over the next several months, defendant filed several motions. The circuit court addressed all outstanding defense motions at a joint motions hearing on August 1, 2007. After resolving these motions, the court discussed the issue of trial scheduling. The State requested that defendant's trial be set for a date after Sonnenschein's trial. Counsel for Sonnenschein indicated that he had a conflict with the court's available date, November 26, and offered to give that date to defendant. Accordingly, the court set defendant's trial to start on November 26, 2007, and Sonnenschein's for February 2008.
[¶4.] On August 21, 2007, the State filed a notice of dismissal of the charges against defendant. In February 2008, under a plea agreement, Sonnenschein pleaded guilty to two counts of soliciting a bribe by a public officer and agreed to testify truthfully and fully at any future proceedings against defendant.
[¶5.] On April 22, 2008, defendant was indicted on six counts of bribing a public officer and one count of grand theft. The charges were identical to the previous indictment, less one charge for bribing a public officer. Defendant made an initial appearance on the new charges on May 1, 2008. Thereafter, he moved to dismiss the indictment, alleging that the 180-day rule under SDCL 23A-44-5.1 was violated. The circuit court examined the two-part test adopted by this Court, which provides that "[t]he 180-day period commences when the defendant has first appeared on the re-indictment if '(1) the earlier indictment was properly dismissed by a competent judicial officer and (2) the record does not reveal evidence of a prosecutorial attempt to circumvent the 180-day rule.'" State v. Karlen, 1999 SD 12, ¶12, 589 NW2d 594, 598 (citations omitted).
[¶6.] In concluding that the State violated the 180-day rule, the circuit court held that the first part of the test had not been met because the dismissal by the State of the earlier indictment was not a dismissal by a competent judicial officer. Therefore, it calculated the elapsed days as: 14 days as of August 21, 2007, plus 254 days from August 21, 2007, when the first indictment was dismissed, to May 1, 2008, when defendant first appeared on the second indictment. The court apparently deemed the second part of the test irrelevant. The State appeals contending that it did not violate the 180-day rule.*fn1
[¶7.] Under our Supreme Court rule, a criminal defendant must be brought to trial within 180 days from the date the defendant "has first appeared before a judicial officer on an indictment, information or complaint." SDCL 23A-44-5.1(2). This rule excludes certain days from the 180-day computation.*fn2 A review of the rule's list of exclusions, however, does not reveal whether a court should exclude the time between the dismissal of the original charge and the initial appearance on the recharged offense. Nonetheless, in State v. Tiedeman, this Court adopted a two-part test from Pennsylvania to determine the date from which the 180-day period begins to run when charges are dismissed and later refiled. 433 NW2d 237, 239 (SD 1988) (citing Commonwealth v. Davies, 492 A2d 1139, 1142 (PaSuperCt 1985)). The test provides:
[T]he 180-day period begins to run anew upon reindictment if (1) the earlier indictment was properly dismissed by a competent judicial officer and (2) the record does not reveal evidence of a ...