State v. Heftel

¶1(concurring in part; dissenting in part).

¶2I.

¶3On Issue I pertaining to sufficiency of evidence, I concur.

¶4II.

¶5True, Heftel’s counsel did not make an objection to the sentence or present evidence on proportionality below, as required. State v. Christians, 381 N.W.2d 214, 217 (S.D.1986). However, due to the position of this writer on Issue III, set forth herein, the sentence is excessive.

¶6III.

¶7Due to the sloppy, ineffectual, and procedural non-compliance regarding (a) statutory mandate and (b) settled precedent in this Court, an enhancement of the sentence to 70 years was improper. SDCL 22-7-11 provides, inter alia, “An allegation that a defendant is an habitual criminal must be filed as a separate information at the time of or before his or her arraignment.” (Emphasis supplied mine.) It was not done. A resentenc-ing, without benefit of employing the Part II Information, should now take place. Accordingly, I so vote.

• September 29, 1992, Heftel arraigned on principal charge before Circuit Judge Johnson.

• October 13,1992, Heftel also arraigned in principal charge before Circuit Judge Johnson.

• October 14, 1992, Information on Part II is filed. THE FILING STAMP BY THE CLERK REFLECTS OCTOBER 14, 1992.

¶8Majority opinion expresses “We do not approve of the procedure employed by the State in ‘putting a copy on your desk’ as a method of filing legal documents with the court.” I share that opinion — that is why I dissent on this issue.

¶9“The habitual offender act is a highly penal enactment and, therefore, it should be strictly construed and applied.” State v. Grooms, 339 N.W.2d 318 (S.D.1983); State v. Alexander, 313 N.W.2d 33 (S.D.1981). We should stand by precedent.* The “papers” or “pleadings” were not filed with “him” (the judge). They were placed on his desk and the judge did not know it. Any rookie in the trial practice in this state knows you should (1) hand a document to the trial judge and (2) have “him” (or “her”) place thereon a statement “filed with the Court,” the date, and the signature of the trial judge affixed thereon. There are (ordinarily) many documents on a trial judge’s desk. To just informally place an Information on a trial judge’s desk, with*404out the judge having any idea that it is there, is hardly “filing with the court.”

¶10SDCL 23A-6-3 unambiguously provides in no uncertain terms: “All informations shall be filed with the court having jurisdiction of the offense by the prosecuting attorney prior to the arraignment.” (Emphasis added.) “Arraignment” is defined by SDCL 23A-7-1 as follows:

An arraignment shall be conducted in open court ... and shall consist of reading the indictment, information or complaint, as is applicable, to the defendant or stating to him the substance of the charge and calling on him to plead thereto. (Emphasis added mine.)

¶11Thus, it is obvious that an information must be filed before the defendant is called upon to enter his plea to the charges set forth. Failing this, the trial court has no subject matter jurisdiction to take the plea. State v. Mee, 67 S.D. 589, 297 N.W. 40, 41 (1941), on rehearing (reversing 67 S.D. 335, 292 N.W. 875 (1940) due to lack of jurisdiction). See also Honomichl v. State, supra.

¶12The Supreme Court of the state should not countenance placing papers on a trial judge’s desk as a “filing.” Such a procedure condones neglect. And such is, also, a marked contradiction to the express terms of state statute. Filing of an information is a serious, eventful procedure in the criminal law. It is a matter of vital substance — necessary to invoke the jurisdiction of a trial court to act — to proceed. We are not dealing with a mere technicality; nay, we are considering a statutory necessity.

¶13ADDENDUM

¶14Footnote 3 of the majority opinion attempts to circumvent the thrust of the dissent by reflecting that, in effect, the dissenter only has a “claim” as to the true facts of placing the Part II Information “on his [circuit court judge’s] desk and the judge did not know it.”

¶15In effect, the footnote accuses this writer of making up facts. At the arraignment, the trial court, as plainly indicated by the transcript quoted on page 8 of the conference opinion, found it necessary to ask if the Part II Information had been filed. This was not a rhetorical question nor was the trial court invoking the Socratic method for instructional purposes. The judge desired an answer because he did not know if such had been filed. Why ask if he knew? When informed by the State that the State had “put” the Part II Information on his desk, the judge simply remarked, “All right.”

¶16Majority writing, per footnote 3, states, “There is nothing to indicate whether the judge knew the paper had been placed on his desk or not — it is irrelevant.” Completely erroneous. Again, why ask if he knew? If the judge does not know of the Part II Information, such document could not have been filed with him. It is relevant. This legally repugnant informality of “filing,” by placing vital papers on a judge’s desk, conflicts with SDCL 15-6-5(e) which permits filing with the judge and mandating that the judge “shall note thereon the filing date[.]” (Emphasis added.) Majority goes to great lengths to explain this. However, no notations by the judge appear on the Part II Information, thus it cannot be said to have been filed with him. It was put on his desk and he was unaware of it.

¶17Footnote further argues “[t]he relevant question is whether the judge possessed the Part II Information at the time of the arraignment.” This is contrary to SDCL 15-6-5(e) which requires filing not merely possessing.

¶18Majority then claims “the judge had the Information during the arraignment[.]” Really? The very transcript quotations indicate he was unaware of it. The best answer was that it was back on his desk where it was placed by the State.

¶19I take offense of the accusation that I have invented facts. No claims, no assumptions, hardly a logical inference was necessary to read the transcript quoted in the conference opinion.

¶20AMUNDSON, J., joins this special writing and I am authorized to so state.