Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State of South Dakota v. Richard Litschewski

December 21, 2011

STATE OF SOUTH DAKOTA,
PLAINTIFF AND APPELLEE,
v.
RICHARD LITSCHEWSKI,
DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT WALWORTH COUNTY, SOUTH DAKOTA THE HONORABLE JACK R. VON WALD Judge

The opinion of the court was delivered by: Severson, Justice

#25876-rev & rem-GAS

CONSIDERED ON BRIEFS ON AUGUST 22, 2011

[¶1.] Richard Litschewski appeals the circuit court's denial of his motion to vacate or modify an illegal sentence. He argues that his sentence was illegal because the circuit court imposed consecutive sentences in an order that was inconsistent with the chronological order in which his crimes occurred. We reverse the circuit court's denial of Litschewski's motion to modify an illegal sentence and remand for further proceedings.

Facts and Procedural Background

[¶2.] In 1997, a jury convicted Litschewski of three separate offenses. On Count II, he was convicted of third-degree rape, based on an incident that occurred in 1989. On Count I, he was convicted of first-degree rape, based on an incident that occurred in 1991. And on Count III, he was convicted of sexual contact with a child, based on events that occurred in 1996. The circuit court imposed a 7 1/2-year sentence for Count I, a 12 1/2-year sentence for Count II, and a 7 1/2-year sentence for Count III. The sentence for Count II was to run consecutive to the sentence for Count I. The sentence for Count III was to run consecutive to Counts I and II. Litschewski appealed to this Court, which affirmed his conviction. In June 2010, he filed a motion to vacate or modify an illegal sentence, arguing that the circuit court lacked the authority to order his sentence for Count II to run consecutive to Count I because Count II occurred first in time. The circuit court denied the motion. Litschewski appeals.

Analysis and Decision

Timeliness of Appeal

[¶3.] The circuit court's denial of Litschewski's motion to vacate or modify an illegal sentence was entitled a "Judgment" and was filed on September 28, 2010. Litschewski did not file his notice of appeal until January 13, 2011. Thus, the State argues that Litschewski has failed to comply with the thirty-day notice of appeal requirement found in SDCL 23A-32-15. The statute provides in part:

[A]ny appeal other than from a judgment must be taken within thirty days after written notice of the filing of the order shall have been given to the party appealing. An appeal from the judgment must be taken within thirty days after the judgment is signed, attested, and filed.

SDCL 23A-32-15.

[¶4.] Litschewski agrees that SDCL 23A-32-15 provides the statutory authority for this Court's exercise of jurisdiction, but argues that the circuit court's entitlement of its decision as a "Judgment" was erroneous. Litschewski argues that, under South Dakota law, the circuit court's decision was actually an order. Therefore, the thirty-day time limit set forth under SDCL 23A-32-15 did not begin to run until Litschewski received written notice of the filing of the order. Because he did not receive written notice until January 5, 2011, Litschewski argues his appeal is timely.*fn1

[¶5.] Whether the circuit court's decision was properly entitled a "Judgment" is a question of statutory interpretation this Court reviews de novo.

State v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412, 414 (citing State v. Miranda, 2009 S.D. 105, ¶ 14, 776 N.W.2d 77, 81). "It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute." Kauth v. Bartlett, 2008 S.D. 20, ¶ 9, 746 N.W.2d 747, 750 (quoting Huber v. Dep't of Pub. Safety, 2006 S.D. 96, ¶ 14, 724 N.W.2d 175, 179). "We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject." State v. Anders, 2009 S.D. 15, ¶ 10, 763 N.W.2d 547, 551 (quoting Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 8, 727 N.W.2d 291, 294). [¶6.] Black's Law Dictionary 918 (9th ed. 2009) defines the term "judgment" as "[a] court's final determination of the rights and obligations of the parties in a case." An "order," on the other hand, is defined as a "written direction or command delivered by a court or judge." Id. at 1206. Here, the circuit court's denial of Litschewski's motion to vacate or modify an illegal sentence was not a judgment because it did not constitute a "final ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.