#29275, #29276, #29277-dismiss-JMK
2020 S.D. 36
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
JARED STEFFENSEN,
TAMI STEFFENSEN,
JOANN M. STEFFENSEN, Defendants and Appellees.
…
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
KINGSBURY COUNTY, SOUTH DAKOTA
…
THE HONORABLE KENT SHELTON
Judge
…
JASON R. RAVSNBORG
Attorney General
MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellant.
…
CONSIDERED ON BRIEFS
APRIL 30, 2020
OPINION FILED 06/24/20
PAUL H. LINDE of
Schaffer Law Office
Sioux Falls, South Dakota Attorneys for defendant
and appellee, Jared Steffensen,
#29275.
MICHAEL J. BUTLER
Sioux Falls, South Dakota Attorney for defendant and
appellee, Tami Steffensen,
#29276.
JEFFREY M. BANKS of
Blue Haeder & Banks
Huron, South Dakota Attorneys for defendant and
appellee, Joann M. Steffensen,
#29277.
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KERN, Justice
[¶1.] The State filed a separate notice of appeal as to each of three jointly
indicted defendants from a trial court order dismissing certain counts of the
indictment against them. We consolidate the three appeals for disposition in this
decision. Because the State has no right of appeal from the dismissal of counts of an
indictment or information, the appeals are dismissed.
Facts and Procedural History
[¶2.] In 2018, the three defendants were jointly indicted in Kingsbury
County on twenty-two counts of violation of financial reporting requirements for
grain buyers and theft. Count one alleged that the defendants conspired to fail to
notify the Public Utilities Commission (PUC) of their grain company’s financial
status and caused financial harm in violation of SDCL 49-45-25 and SDCL 49-45-
27. 1 Counts two through sixteen charged fifteen more counts of violation of the
same statutes, one for each of the fifteen grain suppliers allegedly suffering
1. SDCL 49-45-25 provides in relevant part:
If at any time during the licensing period a grain buyer
becomes aware that the grain buyer is not in compliance
with each financial standard, as set forth in the [PUC’s]
rules, the grain buyer shall immediately notify the [PUC]
of the grain buyer’s financial condition. . . . A willful
violation of this section that results in a financial loss to a
grain supplier is a Class 6 felony.
SDCL 49-45-27 provides:
The owner, manager, or chief executive officer of a grain
buyer, or any other person in a managerial position, who
is responsible for any violation of this chapter by a grain
buyer is subject to any criminal penalty that applies to a
grain buyer under the provisions of this chapter.
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financial loss as a result of the defendants’ failure to notify. Counts seventeen
through twenty-two charged some of the defendants with theft, but those counts are
not at issue here.
[¶3.] The defendants moved to dismiss counts two through sixteen of the
joint indictment on the grounds of multiplicity, claiming that the State “splintered”
a single offense into fifteen separate counts. The trial court granted the motion as
to counts three through sixteen, leaving some counts of the joint indictment for
further proceedings against each defendant. 2 The State appealed, filing a separate
notice of appeal as to each defendant. This Court issued an order to show cause as
to why the appeals should not be dismissed “on the grounds that no appeal of right
exists from the orders sought to be appealed . . . .” 3 The State and the defendants
timely responded to this Court’s order, and having considered their responses and
the applicable authorities, we dismiss the appeals.
Analysis
[¶4.] The parties dispute whether the State has the statutory right to appeal
from the dismissal of certain counts in an indictment. SDCL 23A-32-4 provides in
relevant part:
2. We do not address the propriety of the trial court’s action in this decision.
3. We take notice of issues involving our jurisdiction sua sponte. People, ex rel.,
South Dakota Dept. of Social Services, in interest of L.R., 2014 S.D. 95, ¶ 5,
857 N.W.2d 886, 887 (“It is the rule in this state that jurisdiction must
affirmatively appear from the record and this Court is required sua sponte to
take note of jurisdictional deficiencies, whether presented by the parties or
not.” (quoting State v. Phipps, 406 N.W.2d 146, 148 (S.D. 1987))). “[A] court
always has jurisdiction to determine its own jurisdiction . . . .” Rosado v.
Wyman, 397 U.S. 397, 403 n.3,
90 S. Ct. 1207, 1213 n.3,
25 L. Ed. 2d 442
(1970).
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An appeal by a prosecuting attorney in a criminal case may be
taken to the Supreme Court, as a matter of right, from a
judgment, or order of a circuit court . . . sustaining a motion to
dismiss an indictment or information on statutory grounds or
otherwise . . . .
Notably absent in this language is a right of appeal from the dismissal of counts of
an indictment or information rather than from the dismissal of the whole document.
[¶5.] This Court has previously held that the State’s right of appeal in a
criminal action is strictly governed by the language of the applicable statute. In
State v. Nuwi Nini, we examined the forerunner of SDCL 23A-32-4 noting that we
are “obligated to apply the statute as it is written and must leave to the legislature
the question of whether the right of the State to appeal in a criminal action should
be further expanded.” 262 N.W.2d 758, 761 (S.D. 1978). The Court further
emphasized the limited right of appeal granted to the State concluding that “[t]he
contention of the State that this case should be appealable cannot stand in the face
of the unambiguous statutes involved.”
Id.
[¶6.] It is evident that some states permit a statutory right of appeal from
the dismissal of counts of an indictment or information. See, e.g., State v. O’Boyle,
356 N.W.2d 122, 123 (N.D. 1984) (“An appeal may be taken by the state from . . .
[a]n order quashing an information or indictment or any count thereof.” (emphasis
added) (quoting
N.D. Cent. Code § 29-28-07(1))); People v. Alice,
161 P.3d 163, 165
(Cal. 2007) (“An appeal may be taken by the people from . . . [a]n order setting aside
all or any portion of the indictment, information, or complaint.” (emphasis added)
(quoting
Cal. Penal Code § 1238(a)(1))); State v. Rosseau,
396 S.W.3d 550, 555 (Tex.
Crim. App. 2013) (referring to a statute authorizing “the State to appeal any trial
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court order that ‘dismisses . . . any portion of an indictment, information, or
complaint.’” (emphasis added) (quoting Tex. Code Crim. Proc. Ann. art. 44.01(a)(1))).
[¶7.] However, in contrast with jurisdictions such as those above, our
Legislature has not granted the State a right of appeal from the dismissal of counts
or parts of an indictment, information, or complaint. It is not alone in this regard.
In State v. Campos, 845 N.E.2d 1074, 1076 (Ind. Ct. App. 2006), the State of Indiana
attempted to appeal the trial court’s dismissal of the first count of a three-count
information under a statute that, at that time, granted the state a right of appeal
“from an order granting a motion to dismiss an indictment or information.”
Id. at
1076 (quoting
Ind. Code § 35-38-4-2(1)). 4 Observing that the statute did not
“provide for such an appeal[,]” the court of appeals dismissed it.
Id. In its brief
analysis, the court noted prior caselaw requiring a judgment finally disposing “of
the whole case, and not merely a ruling . . . leaving other counts upon which the
trial may proceed.”
Id. (quoting State v. Evansville & T.H.R. Co.,
8 N.E. 619, 620
(Ind. 1886)). In addition, the court noted that the state’s right “to appeal in a
criminal action is statutory and, unless there is a specific grant of authority by the
legislature, the State cannot appeal.”
Id. (quoting State v. Aynes,
715 N.E.2d 945,
948 (Ind. Ct. App. 1999)). The latter principle is consistent with this Court’s
holding in Nuwi Nini.
262 N.W.2d at 761.
4. The Indiana statute was amended after Campos to grant the state a right of
appeal “[f]rom an order granting a motion to dismiss one (1) or more counts of
an indictment or information.” 2015 Ind. Legis. Serv. P.L. 110-2015, Sec. 2
(S.E.A. 261) (West).
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[¶8.] The State’s response to this Court’s order to show cause cites a number
of federal cases, including United States Supreme Court decisions on double
jeopardy. Those decisions, however, address the anticipated consequences of an
adverse decision and not the primary question of this Court’s appellate jurisdiction
under SDCL 23A-32-4. The State appears to argue that, because double jeopardy
could preclude it from further prosecution of the dismissed counts, it must be
entitled to review of the dismissals. We are not necessarily convinced the State
faces an inevitable double jeopardy bar, but even if it did, that fact cannot serve as a
basis for creating a statutory basis for appeal where none exists. 5
[¶9.] Sanabria v. United States, 437 U.S. 54, 77-78,
98 S. Ct. 2170, 2186,
57
L. Ed. 2d 43 (1978), cited by the State, recognizes a point similar to one noted in
Nuwi Nini that: “Neither
18 U.S.C. § 3731 (1976 ed.) nor the Double Jeopardy
Clause permits the Government to obtain relief from all of the adverse rulings—
most of which result from defense motions—that lead to the termination of a
criminal trial in the defendant’s favor.”
18 U.S.C. § 3731 is the federal
“jurisdictional statute” addressing the Government’s right of appeal from dismissal
5. Campos also indirectly addresses the State’s denial of review argument. The
facts of that case reveal that the State of Indiana filed both a motion for
interlocutory appeal of the dismissal of the contested count and a notice of
appeal. Campos, 845 N.E.2d at 1075. The State here might also have sought
a discretionary appeal of the dismissal of the contested counts under SDCL
23A-32-12, but instead attempts to appeal as a matter of right under SDCL
23A-32-4.
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orders. 6 Sanabria, 437 U.S. at 61,
98 S. Ct. at 2177. Unlike SDCL 23A-32-4, it
grants the Government a right of appeal “from orders ‘dismissing an indictment . . .
as to any one or more counts.’”
Id. (emphasis added) (quoting
18 U.S.C. § 3731 (1976
ed.)). Therefore, the federal authorities cited by the State are inapposite because
these cases highlight the distinction between the applicable federal statute and
SDCL 23A-32-4.
[¶10.] Because SDCL 23A-32-4 does not authorize an appeal of right from a
dismissal of individual counts, the State’s appeals must be dismissed because this
Court lacks jurisdiction to hear them. See State v. Brassfield,
2000 S.D. 110, ¶ 5,
615 N.W.2d 628, 629 (“an attempted appeal from an order from which no appeal lies
is a nullity and confers no jurisdiction on this court, except to dismiss it.” (quoting
Phipps,
406 N.W.2d at 148)).
[¶11.] GILBERTSON, Chief Justice, and JENSEN, SALTER, and
DEVANEY, Justices, concur.
6.
18 U.S.C. § 3731 currently provides in relevant part:
In a criminal case an appeal by the United States shall lie to a
court of appeals from a decision, judgment, or order of a district
court dismissing an indictment or information or granting a new
trial after verdict or judgment, as to any one or more counts, or
any part thereof, except that no appeal shall lie where the
double jeopardy clause of the United States Constitution
prohibits further prosecution.
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