Petition of Brockmueller, 14740

• Decision Date: 06 September 1985
• Docket Number: No. 14740,14740
• Citation: 374 N.W.2d 135
• Parties: In the Matter of the Petition of Scott BROCKMUELLER For a Writ of Error Coram Nobis.
• Court: South Dakota Supreme Court

Page 135

374 N.W.2d 135

In the Matter of the Petition of Scott BROCKMUELLER For a

Writ of Error Coram Nobis.

No. 14740.

Supreme Court of South Dakota.

Argued April 10, 1985.

Decided Sept. 6, 1985.

Craig K. Thompson, Clay County State's Atty., Vermillion, for appellant.

John Blackburn of Blackburn & Stevens, Yankton, for appellee; Donna K. Dietrich of Blackburn & Stevens, Yankton, on brief.

WOLLMAN, Justice.

This is an appeal by the state from an order of the trial court that granted Scott Brockmueller's petition for a writ of error coram nobis and vacated Brockmueller's conviction on a third offense driving while intoxicated charge. We affirm and remand.

On February 4, 1981, Brockmueller was convicted in Turner County, South Dakota, of DWI. On May 27, 1981, Brockmueller was convicted in Yankton County, South Dakota, of DWI. In neither of these cases was an information filed by the state.

On February 19, 1982, Brockmueller was arrested for DWI in Clay County, South Dakota. He was indicted by a Clay County Grand Jury on March 26, 1982. On March 31, 1982, the state filed a Part II information charging Brockmueller with a Class 6 felony based upon his two prior DWI convictions. SDCL 32-23-4.

Brockmueller was convicted by a jury on June 4, 1982, on the principal DWI offense. On July 22, 1982, Brockmueller admitted the convictions contained in the Part II information and was sentenced to one year in the county jail, with nine months suspended on certain conditions, and placed on probation for a period of two years. No post-conviction proceedings were initiated by Brockmueller.

On April 20, 1983, we held in Honomichl v. State, 333 N.W.2d 797, 798 (S.D.1983), that a court cannot acquire subject matter jurisdiction over a DWI offense unless a "formal and sufficient indictment or information" is filed. Consequently, on January 26, 1984, and February 1, 1984, Brockmueller's DWI convictions in Turner County and Yankton County were, upon application to the respective magistrate courts, vacated due to lack of subject matter jurisdiction.

On July 27, 1984, Brockmueller petitioned the Clay County circuit court for a writ of error noram Nobis seeking to vacate his Class 6 felony conviction on the ground that his two prior DWI convictions were void and had been vacated. It is from the order granting the petition that the state appeals.

Coram nobis is an extraordinary writ of common law origin. United States v. Morgan, 346 U.S. 502, 507, 74 S.Ct. 247, 250, 98 L.Ed. 248, 254 (1954). See also Fanning v. State, 85 S.D. 246, 249, 180 N.W.2d 853, 854 (1970). It has been held that

[t]he jurisdiction of a court to grant relief under it is of limited scope. Any proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise. United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Only where there are errors of fact of "the most fundamental kind, that is, such as to render the proceeding itself irregular and invalid," can redress be had. Relief will be granted only when circumstances compel such action "to achieve justice." United States v. Morgan, supra, 346 U.S. p. 511, 74 S.Ct. p. 252.

United States v. Cariola, 323 F.2d 180, 184 (3rd Cir.1963) (quoted with approval in Byrnes v. United States, 408 F.2d 599, 602 (9th Cir.1969) (citations omitted)). See also United States v. Scherer, 673 F.2d 176, 178 (7th Cir.1982).

Generally, this extraordinary writ is only available to attack convictions involving collateral legal disadvantages which survive the satisfaction of a sentence. Byrnes v. United States, supra, citing (United States v. Morgan, supra ). See United States v. Scherer, supra. More importantly, statutory remedies must be unavailable or inadequate before a petition for coram nobis relief can be granted. Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir.1973); United States v. Katz, 494 F.Supp. 1287, 1291 (M.D.Fla.1980).

The principal questions on appeal are (1) whether the writ of coram nobis is available in South Dakota, and (2) whether the facts of this case warrant its application.

SDCL 1-1-24 provides in pertinent part: "In this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in Sec. 1-1-23." SDCL 1-1-23 reads:

The will of the sovereign power is expressed:

(1) By the Constitution of the United States;

(2) By treaties made under the authority of the United States;

(3) By statutes enacted by the Congress of the United States;

(4) By the Constitution of this state;

(5) By statutes enacted by the Legislature;

(6) By statutes enacted by vote of the electors;

(7) By the ordinances of authorized subordinate bodies;

(8) Rules of practice and procedure prescribed by courts or adopted by departments, commissions, boards, officers of the state or its subdivisions pursuant to authority so to do.

Thus, to the extent not supplanted under the provisions of SDCL 1-1-23, the rules of the common law apply. The state contends that the legislature has preempted the writ of coram nobis by enacting statutes that govern the vacating of judgments. We disagree.

In 1966 the legislature enacted the Uniform Post Conviction Procedure Act, SDCL ch. 23A-34, providing in part:

[T]his chapter comprehends and takes the place of all other common law, or statutory or other remedies which have heretofore been available for challenging the validity of a conviction or sentence, and shall be used exclusively in place of them.

SDCL 23A-34-2.

In Fanning v. State, supra, this court construed the Act as, inter alia, preempting the common law writ of coram nobis. 85 S.D. at 249, 180 N.W.2d at 854. There is no question that pursuant to the Act Brockmueller could have obtained the relief he presently seeks. In 1983, however, the legislature repealed the Post Conviction Procedure Act, 1983 S.D.Sess.Laws ch. 169, Sec. 15, incorporating it in large part within the Habeas Corpus Act as amended in 1983. SDCL ch. 21-27. The writ of habeas corpus will be issued only if the applicant is imprisoned or restrained of his liberty. Moeller v. Solem, 363 N.W.2d 412, 414 (S.D.1985) (citing Application of Painter, 85 S.D. 156, 160, 179 N.W.2d 12, 14 (1970)). See SDCL 21-27-1, 21-27-3, and 21-27-16. Because Brockmueller's term of incarceration has been completed, habeas corpus will not issue.

Furthermore, it is apparent that no other statutory remedy is available to Brockmueller to vacate his invalid felony conviction. SDCL 23A-30-1 authorizes a court to arrest judgment for lack of jurisdiction over the offense charged, but only upon motion to the court made within ten days after the verdict. Brockmueller correctly argues that he could not be charged with the knowledge that approximately nine months subsequent to his felony conviction this court would hold that a court could not acquire jurisdiction over a DWI offense in the absence of an information. Honomichl v. State, supra.

SDCL 23A-31-1 empowers the court to correct an illegal sentence at anytime or reduce a sentence illegally imposed within one year from its imposition. Federal decisions interpreting Rule 35 of the Federal Rule of Criminal Procedure, on which SDCL 23A-31-1 is modeled, hold that a motion for correction of an illegal sentence presupposes a valid conviction. See Fooshee v. United States, 203 F.2d 247, 248 (5th Cir.1953); Cook v. United States, 171 F.2d 567, 570 (1st Cir.1948). See also Moss v. United States, 263 F.2d 615 (5th Cir.1959) (rule relating to correction or reduction of sentence contemplates the correction of a court having jurisdiction); 3 Wright & Miller, Federal Practice and Procedure, Sec. 582 at 380-81 (2nd ed. 1982).

Inasmuch as Brockmueller has been convicted of a Class 6 felony based on two subsequently vacated DWI convictions, and because the foregoing statutes provide no recourse to vacate the invalid felony conviction, we hold that the writ of error coram nobis is the appropriate remedy.

The state nevertheless contends that Brockmueller waived the jurisdictional defects by admitting the Turner and Yankton County DWI convictions at the time he entered a plea of guilty to the felony charge.

The state's argument ignores the rule of Honomichl that jurisdiction cannot be acquired by estoppel. See also State v. Mee, 67 S.D. 589, 591, 297 N.W. 40, 41 (1941). Simply stated, jurisdictional defects cannot be waived.

The state further argues that coram nobis is inapplicable in this case as the writ is available to redress only errors of fact and not of law. We hold, however, that coram nobis encompasses legal errors of constitutional significance such as jurisdictional defects. United States v. McCord, 509 F.2d 334, 341 (D.C.Cir.1974); United States v. Wickham, 474 F.Supp. 113, 116 (C.D.Cal.1979); 3 Wright & Miller, Federal Practice and Procedure, Sec. 592 at 428 (2nd ed. 1982).

The error presented in this case is of the fundamental nature contemplated by coram nobis. To allow a felony conviction to stand when it is based upon void convictions would be an injustice of the first magnitude.

We hasten to add, however, that our holding should not be construed as equating the writ of error coram nobis with the broader remedies formerly encompassed within the Uniform Post Conviction Procedure Act and now encompassed within our habeas corpus statutes. It will be the rare case indeed in which coram nobis will be recognized as the appropriate remedy. It will not be countenanced as merely another avenue of appeal, but will be limited to those cases, such as the one before us, when its application is necessary to remedy what would otherwise be a profound injustice.

There is some question whether the trial court's order is so broadly worded as to vacate the principal DWI offense on which Brockmueller was convicted on June 4, 1982. Brockmueller concedes that no jurisdictional defect exists...