City of Rapid City v. Albertus
| Decision Date | 16 September 1981 |
| Docket Number | No. 13233,13233 |
| Parties | CITY OF RAPID CITY, Plaintiff and Appellee, v. Velma ALBERTUS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Timothy F. Tobin, Rapid City, for plaintiff and appellee.
Velma Albertus, pro se.
This is an appeal from an order of the circuit court affirming a judgment of guilty entered by a law trained magistrate. We reverse and remand.
On February 1, 1979, defendant, Velma Albertus, received a Uniform Complaint-Summons for speeding in violation of a Rapid City traffic ordinance. She appeared without a formal arraignment and requested a trial. The trial before a law trained magistrate resulted in a finding of guilty and an $11 fine, plus costs. * After trial, defendant filed a document captioned "judicial notice," setting out errors in the original proceedings. Defendant took no action to pursue this notice as an appeal. Although no order for new trial was entered, defendant was retried and once again found guilty. She filed a notice of appeal; the circuit court affirmed the law trained magistrate's finding of guilty.
Defendant contends that the failure to arraign her on the traffic offense denied her due process of law. "Due process ... does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution." Garland v. Washington, 232 U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772, 775 (1914). The state has adopted a procedure for traffic offenses sufficient to meet these standards. SDCL 32-33, SDCL 23-1A-1. An arraignment would have been required had an information or an indictment been filed. SDCL 23-35-1 (Repealed by Sess.L. 1978, ch. 178, § 577, effective July 1, 1979). See SDCL 23-2-5(3) (Repealed by Sess.L. 1978, ch. 178, § 577, effective July 1, 1979).
Defendant contends that her retrial placed her twice in jeopardy for the same offense in violation of the state and federal constitutional double jeopardy clauses. We agree that the second trial should not have occurred, but for other reasons. Defendant did not make a motion for a new trial. At the time of defendant's trial, the court's authority to grant a new trial on its own motion was limited to jury trials and had to be exercised, if at all, at the time the verdict was returned. SDCL 23-50-3 (Repealed by Sess.L. 1978, ch. 178, § 577, effective July 1, 1979). Defendant's...
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R.P., Matter of, 17767
...notice was sufficient to satisfy due process in criminal matters. State v. Winters, 414 N.W.2d 1, 2 (S.D.1987); City of Rapid City v. Albertus, 310 N.W.2d 167, 168 (S.D.1981) (quoting Garland v. Washington, 232 U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772, 775 (1914)). A modification of t......
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State v. Winters, 15354
...232 U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772, 775 (1914). We specifically adopted the Garland test in City of Rapid City v. Albertus, 310 N.W.2d 167 (S.D.1981). We have no doubt that Winters had sufficient notice of the accusation and had an adequate opportunity to defend himself. Alt......
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Cook v. Hinrichs, CIV 07-4108.
...had not pointed to any state obstacle preventing him from raising his federal claims in the state proceedings); City of Rapid City v. Albertus, 310 N.W.2d 167 (S.D.1981) (South Dakota Supreme Court considers appeal alleging violation of due process in prosecution for traffic offense). Becau......
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City of Sioux Falls v. Ewoldt, 19732
...case such as this with sufficient notice of the accusation and an adequate opportunity to defend himself (see City of Rapid City v. Albertus, 310 N.W.2d 167, 168 (S.D.1981)), the complaint must tell the accused exactly what he is charged with: the speed he is alleged to have driven, the law......