Hansen v. S. DAKOTA BD. OF PARDONS, No. 20820.

CourtSupreme Court of South Dakota
Writing for the CourtPER CURIAM.
Citation601 N.W.2d 617,1999 SD 135
Decision Date20 October 1999
Docket NumberNo. 20820.
PartiesPaul J. HANSEN, Petitioner and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.

601 N.W.2d 617
1999 SD 135

Paul J. HANSEN, Petitioner and Appellant,
v.
SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee

No. 20820.

Supreme Court of South Dakota.

Considered on Briefs September 13, 1999.

Decided October 20, 1999.


601 N.W.2d 618
Michael B. Thompson, Sioux Falls, for petitioner and appellant

Mark Barnett, Attorney General, Gary R. Campbell, Assistant Attorney General, Pierre, for appellee.

PER CURIAM.

[¶ 1.] Paul J. Hansen appeals the dismissal of his appeal from a decision by the South Dakota Board of Pardons and Paroles for failure to timely file the appeal. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Hansen is presently an inmate at the South Dakota State Penitentiary. On August 5, 1998, the Board of Pardons and Paroles revoked his parole and served notice of entry of its decision the following day. On September 3, 1998, Hansen attempted to appeal the Board's decision pursuant to SDCL 1-26-31 by mailing a notice of appeal to the Minnehaha County Clerk's Office and the Attorney General's Office. Fellow inmates assisted Hansen in preparation of his appeal. Hansen did not include a filing fee or application for waiver of this fee with his notice.

[¶ 3.] Because the notice of appeal was not accompanied by fee or application for waiver, the clerk of the circuit court refused to file Hansen's appeal and returned Hansen's notice to William Delaney, an attorney on contract with the state penitentiary to assist inmates with their legal matters. Attorney Delaney conferred with Hansen and subsequently filed an amended notice of appeal and application for waiver of the filing fee on September 11, 1998. This was after the thirty-day deadline for filing an appeal under SDCL 1-26-31.

[¶ 4.] The State filed a motion to dismiss the appeal based on its untimely filing. The circuit court determined that due to the untimeliness of the appeal, it lacked jurisdiction and granted the State's motion. Hansen appeals.

ANALYSIS AND DECISION

[¶ 5.] The question in this case is whether a filing fee or waiver thereof is required to perfect an appeal under the Administrative Procedures Act? SDCL 1-26-31 provides:

An appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, and upon the hearing examiner, if any, who rendered the decision, and by filing the original with proof of such service in the office of the clerk of courts of the county in which the venue of the appeal is set, within thirty days
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2 practice notes
  • WATERTOWN COOP. ELEVATOR v. Dept. of Rev., No. 21570.
    • United States
    • South Dakota Supreme Court
    • May 2, 2001
    ...the thirty day appeal period. The Department anchors its claim on our holding in Hansen v. South Dakota Board of Pardons and Paroles, 1999 SD 135, 601 N.W.2d 617. We review the grant or denial of a motion to dismiss as a legal question, asking, "is the pleader entitled to judgment as a......
  • Johnson v. Clark, 4:21-CV-04116-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • October 22, 2021
    ...hear the appeal. Schreifels v. Kottke Trucking, 631 N.W.2d 186, 188 (S.D. 2001); Hansen v. South Dakota Board of Pardons & Paroles, 601 N.W.2d 617, 619 (S.D. 1999). Mr. Johnson admits that he never filed an appeal or a habeas petition in state court presenting the claims he now presents......
2 cases
  • WATERTOWN COOP. ELEVATOR v. Dept. of Rev., No. 21570.
    • United States
    • South Dakota Supreme Court
    • May 2, 2001
    ...the thirty day appeal period. The Department anchors its claim on our holding in Hansen v. South Dakota Board of Pardons and Paroles, 1999 SD 135, 601 N.W.2d 617. We review the grant or denial of a motion to dismiss as a legal question, asking, "is the pleader entitled to judgment as a......
  • Johnson v. Clark, 4:21-CV-04116-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • October 22, 2021
    ...hear the appeal. Schreifels v. Kottke Trucking, 631 N.W.2d 186, 188 (S.D. 2001); Hansen v. South Dakota Board of Pardons & Paroles, 601 N.W.2d 617, 619 (S.D. 1999). Mr. Johnson admits that he never filed an appeal or a habeas petition in state court presenting the claims he now presents......

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