Application of Abelt
| Citation | 82 S.D. 308,145 N.W.2d 435 |
| Decision Date | 12 October 1966 |
| Docket Number | No. 10343,10343 |
| Parties | Application of William R. ABELT for a Writ of Habeas Corpus. |
| Court | South Dakota Supreme Court |
Carleton R. Hoy, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for petitioner and appellant.
Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.
The applicant is serving a life term in the penitentiary under a sentence imposed by the Circuit Court of Harding County on March 16, 1965. His claim in this proceeding is that he was improperly sentenced as an habitual criminal. The trial court concluded that the sentencing court did not have jurisdiction to sentence him to life imprisonment as an habitual criminal, but since that court did have jurisdiction to sentence him for any term not less than ten years on the substantive offense to which he pled guilty, it entered judgment quashing the writ. He appeals from that judgment.
On February 16, 1965, he was arraigned on a two-part information. See Ch. 183, Laws of 1961. The principal offenses were charged in the first part in three counts. The first two counts charged him with burglary in the first degree, each committed on January 29, 1965, and the third count with indecent molestation also committed on that date. The second part of the information charged three former felony convictions against him. He appeared at this arraignment with court appointed counsel and entered a plea of guilty to the two counts charging burglary in the first degree. The third count was then dismissed on motion of the prosecution.
The sentencing court, without advising him of his right to be tried as to the truth of the second part of the information, asked him as to each alleged former conviction whether he was the same person as charged therein. His answer to each was in the affirmative. Pronouncing of sentence was postponed until March 16, 1965, at which time applicant again appeared with his counsel. When asked if he had any legal cause to show why the sentence of the court should not be pronounced his counsel responded that they had none. He was then sentenced to the term which he is now serving. The judgment contains only one sentence. It was upon his conviction of the crime of 'Burglary in the First Degree (Two Counts), and Under the Habitual Criminal Statute'. At the time of this arraignment he was about 28 years old.
Our habitual criminal statute SDC 13.0611 in subsection (3) requires that the person charged with the prior convictions shall be informed 'of the allegations contained in such information and of his right to be tried as to the truth thereof according to law'. In State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130, we said that:
'In view of this clear legislative declaration we must conclude that the court is not privileged to inquire of the defendant if he is the same person, until after the defendant has been cautioned as to his rights, or has effectively waived them.'
In that case the defendant was appearing without counsel. In State v. Ruffing, 78 S.D. 556, 105 N.W.2d 541, we had occasion to consider the failure of the court to so advise the accused when he appeared with counsel. We there said:
The same conclusion must be drawn here. Even though the described conduct waives the right to the statutory caution, it nevertheless would be well to give it.
SDC 13.0611 also provides that: 'A person who, after having been convicted within this state of a felony or an attempt to commit a felony, or under the laws of any other state, government, or country, of a crime which, if committed within this state, would be a felony, commits any felony within this state, is punishable * * * (2) If a person has been three times convicted as hereinbefore provided and thereafter commits a felony within this state, such person may, in the discretion of the court, upon such fourth * * * conviction of a felony, be sentenced to imprisonment in a State Penitentiary for the term of his natural life'. One of the prior convictions relied on to bring the applicant within the purview of subsection (2) of this statute was a violation of 18 U.S.C.A., § 2312, commonly referred to...
To continue reading
Request your trial
-
State v. Med. Eagle
...is clear the question has not been squarely presented and addressed on the merits. See, e.g., Graycek, 368 N.W.2d at 818;In re Abelt, 82 S.D. 308, 145 N.W.2d 435 (1966). Nor does the Chief Justice's opinion rely upon these cases as controlling authority for its conclusion that the error her......
-
Orricer v. State
...charged by the information against him. 39 Am.Jur.2d, Habeas Corpus, § 157, 39 C.J.S. Habeas Corpus § 102. See also Application of Abelt, 82 S.D. 308, 145 N.W.2d 435. On the claim of perjured testimony the court found that there were some minor changes in the sworn testimony of the officer ......
-
State v. Salway, 17510
...the convictions are valid, "the sentencing court's power is exhausted only by pronouncing a valid judgment." Application of Abelt, 82 S.D. 308, 313, 145 N.W.2d 435, 437 (1966). Because the punishment ordered in this case was legally impermissible, resentencing is required. Upchurch, supra. ......
-
State v. Moves Camp
...ch. 22-7, must be strictly construed, see Black v. Erickson, 86 S.D. 86, 90, 191 N.W.2d 174, 176 (1971), and Application of Abelt, 82 S.D. 308, 312, 145 N.W.2d 435, 437 (1966). We believe such a strict construction is appropriate for SDCL 23A-7-7; however, the deviation here, although an ir......