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State v. Duncan

Supreme Court of South Dakota

May 10, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
STEVEN R. DUNCAN, Defendant and Appellant.

          CONSIDERED ON BRIEFS APRIL 24, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA THE HONORABLE JON SOGN Judge

          MARTY J. JACKLEY Attorney General GRANT FLYNN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          RACHEL R. RASMUSSEN of Peterson, Stuart, Rumpca & Rasmussen, Prof. LLC Beresford, South Dakota Attorneys for defendant and appellant.

          WILBUR, Justice

         [¶1.] Defendant appeals the circuit court's conclusion that the State did not violate the 180-day rule. We affirm.

         Background

         [¶2.] Law enforcement officers arrested Steven Ray Duncan in Lincoln County, South Dakota, and placed him in the Minnehaha County Jail on September 4, 2015, after he crashed his vehicle into the vehicle ahead of him at a stop sign. He was charged with vehicular battery, driving under the influence (DUI), driving under revocation, open container in a motor vehicle, and following too closely. On September 8, 2015, while Duncan remained in custody, the Lincoln County State's Attorney filed a formal complaint against him in circuit court alleging that he committed the above-listed offenses, which included one felony and five misdemeanors. The circuit court, in Duncan's absence, reviewed the complaint and accompanying traffic citations. The court issued a determination that probable cause supported his arrest and detention. The court also set his bond for release at $5, 000 cash. Duncan did not post bond.

         [¶3.] On September 12, 2015, a Lincoln County grand jury indicted Duncan on one count of vehicular battery, alternate counts of DUI, and one count of driving under revocation. The State filed a part II information to enhance the DUI charge from a class 1 misdemeanor to a class 4 felony, alleging that he had five prior DUI convictions. Duncan remained in custody.

         [¶4.] On October 5, 2015, Duncan first appeared before the circuit court for his arraignment on the indictment. The court advised him of his constitutional rights, amended his bond, entered a scheduling order, and set an initial trial date for December 9, 2015. The State requested and received three continuances. Duncan never waived his right under SDCL 23A-44-5.1 to be brought to trial within 180 days. On March 3, 2016, the court entered an order for the trial to start March 15, 2016.

         [¶5.] Prior to the start of trial on March 15, Duncan moved to dismiss the charges against him for the State's failure to bring him to trial within 180 days. He argued that although he did not appear before the circuit court on September 8, 2015, he constructively appeared when the circuit court conducted a paper review of his case and set bond for his release. Counsel claimed that Duncan operated under the belief that 180 days began on September 8, 2015. The circuit court took the matter under advisement, indicating however that "at this time" it would deny his motion to dismiss.

         [¶6.] At the conclusion of the trial, Duncan again moved the circuit court to dismiss the charges based on the State's violation of the 180-day rule. He conceded that he did not appear before a judicial officer on the complaint against him. But he argued that based on certain rules governing a defendant's right to be brought before a committing magistrate and a right to a preliminary hearing, his constructive appearance constituted his first appearance before a judicial officer for purposes of the 180-day rule. In particular, he emphasized that he had a right to be brought before a committing magistrate within 48 hours of his arrest under SDCL 23A-4-1 (Rule 5(a)). He then referred the court to SDCL 23A-4-3 (Rule 5(c)), which provides that the committing magistrate shall inform the defendant (charged with a felony) of certain rights, including the right to a preliminary hearing. Based on the language of these statutes, counsel for Duncan argued that the State cannot "have it both ways." The State cannot claim that his first appearance was October 5 for purposes of the 180-day rule while at the same time argue that his initial appearance was September 8 for purposes of calculating the date of his right to a preliminary hearing.

         [¶7.] The circuit court again denied Duncan's motion to dismiss. The court said that the 180-day rule and his right to a preliminary hearing were separate and independent issues. The court concluded that under the plain language of SDCL 23A-44-5.1, 180 days did not begin to run until the date Duncan first appeared before a judicial officer. It was undisputed that he first appeared before a judicial officer on October 5, 2015. So the court held that the State did not violate the 180-day rule. On the issue of Duncan's right to be brought before a committing magistrate and right to a preliminary hearing, the court also denied his motion to dismiss.

         [¶8.] The jury found Duncan not guilty of vehicular battery and guilty of DUI and following too closely. In a subsequent trial on the part II information, the jury found that he was the same person convicted of DUI on five prior occasions. The court ...


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