State ex rel. Burns v. Erickson, No. 10073

CourtSupreme Court of South Dakota
Writing for the CourtHOMEYER
Citation80 S.D. 639,129 N.W.2d 712
Docket NumberNo. 10073
Decision Date30 July 1964
PartiesSTATE of South Dakota ex rel. Alfred BURNS, Defendant-Petitioner and Appellant, v. Donald R. ERICKSON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Respondent.

Page 712

129 N.W.2d 712
80 S.D. 639
STATE of South Dakota ex rel. Alfred BURNS,
Defendant-Petitioner and Appellant,
v.
Donald R. ERICKSON, as the duly appointed, qualified and
acting Warden of the South Dakota State
Penitentiary, Respondent.
No. 10073.
Supreme Court of South Dakota.
July 30, 1964.

Page 714

[80 S.D. 642] W. H. Ranney, Jr., Sioux Falls, for defendant-petitioner and appellant.

Frank L. Farrar, Atty. Gen., Alfred E. Dirks, Asst. Atty. Gen., Pierre, for respondent.

[80 S.D. 643] HOMEYER, Judge.

Defendant appeals from a judgment quashing a writ of habeas corpus after hearing. He claims his constitutional rights were violated because (1) the court did not release and discharge his court-appointed attorney and provide him with a substitute attorney, and (2) his oral request for a different judge made when arraigned was denied. The record does not support his claim of a denial of fundamental rights and we affirm the judgment.

Upon a meager record from which we must glean the essential facts, it appears defendant was charged with forgery in the third degree and brought before the Circuit Court of Brookings County for arraignment on January 17, 1961. Before pleading, he was advised of his right to counsel, and upon expressing a desire therefor and satisfying the court that he was indigent, Alvin F. Schulz, a competent, experienced lawyer and a member of the State Bar of South Dakota, was appointed as his counsel. Shortly thereafter Schulz conferred with defendant who was in jail. There is some uncertainty as to the duration of the conference.

On January 26, 1961, defendant and Schulz were both before the court. Schulz informed the court that soon after his appointment he had talked with the defendant and had gone over the case with him; that subsequently defendant had written a letter in which he asked that Schulz no longer represent him. Schulz then stated to the court: '* * * it is my feeling that I should honor that request, and I ask therefore to be relieved from representing this defendant in any manner. I will say that, so far as I have been able, I have advised him to the best of my ability. I believe that I have certain responsibility and that I should not be dictated to, and that I should be allowed to exercise my judgment; and I would say to the Court that certain directions have been given to me that I have refused to follow, and so I would ask to be relieved.' The court did not release Schulz, but advised defendant it was his privilege either to use Schulz or defend himself. The arraignment followed, and when asked for his plea to the information, defendant responded, 'My plea would be not guilty at this time.' Trial time was fixed for the following Monday at 10 a. m. and defendant was again told [80 S.D. 644] 'You have an attorney if you care to use him, or you may defend the case yourself,' after which he said: 'Well, then, I would like to say this, that I have no hard feelings or anything, but I would like to have a different judge. I may not get it, however, I think you can request a different judge if you want; is that right?' He then asked for one of the judges from Sioux Falls expressing disapproval of a second judge in the Brookings circuit and a third judge in the Sioux Falls circuit. Before pleading defendant was also told a supplemental information charging him as a habitual criminal had been filed

On January 27, 1961, defendant and Schulz were again before the court which opened with the following colloquy: 'BY THE COURT: The defendant may stand. Q. You are here now represented by your attorney, Mr. Schulz? A. Yes, sir.' He then was fully informed as to the supplemental information and that it could be considered only so far as concerned enhanced punishment on a forgery conviction. Defendant asked that his plea of not guilty be withdrawn and he entered a plea of

Page 715

guilty to the forgery charge. He admitted the five prior felony convictions set forth in the supplemental information correcting some dates and places, admitted knowledge that he could receive a life sentence, and was aware that it was not mandatory. The state's attorney made some remarks favoring leniency after which the court called upon Schulz who made this statement:

'If the Court please, I was trying to think of something during the progress of this hearing, and I don't know if I can recall it all, but I have advised my client on this supplemental information that...

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47 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Junio 1970
    ...340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 ......
  • McCafferty v. Solem, Nos. 16121
    • United States
    • Supreme Court of South Dakota
    • 29 Agosto 1988
    ...21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that, since the remedy is in the nature of a collateral attack upon a final judgment, the scope......
  • St. Cloud v. Leapley, No. 18332
    • United States
    • Supreme Court of South Dakota
    • 31 Agosto 1994
    ...86 S.D. 208, 210, 193 N.W.2d 793, 794 (1972); In re Kiser, 83 S.D. 272, 283, 158 N.W.2d 596, 602 (1968); State ex rel. Burns v. Erickson, 80 S.D. 639, 645, 129 N.W.2d 712, 715 (1964); State ex rel. Anderson v. Jameson, 51 S.D. 540, 545, 215 N.W. 697, 699 (1927). " '[H]abeas corpus can be us......
  • State v. Iverson, No. 14402
    • United States
    • Supreme Court of South Dakota
    • 27 Febrero 1985
    ...a judge is statutory and not a constitutional right, except as it may be implicit in the right to a fair trial. State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964). Iverson had a fair We affirm the convictions. All the Justices concur. FOSHEIM, Chief Justice, WOLLMAN, Justice, and WUEST, ......
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47 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Junio 1970
    ...340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 ......
  • McCafferty v. Solem, Nos. 16121
    • United States
    • Supreme Court of South Dakota
    • 29 Agosto 1988
    ...21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that, since the remedy is in the nature of a collateral attack upon a final judgment, the scope......
  • St. Cloud v. Leapley, No. 18332
    • United States
    • Supreme Court of South Dakota
    • 31 Agosto 1994
    ...86 S.D. 208, 210, 193 N.W.2d 793, 794 (1972); In re Kiser, 83 S.D. 272, 283, 158 N.W.2d 596, 602 (1968); State ex rel. Burns v. Erickson, 80 S.D. 639, 645, 129 N.W.2d 712, 715 (1964); State ex rel. Anderson v. Jameson, 51 S.D. 540, 545, 215 N.W. 697, 699 (1927). " '[H]abeas corpus can be us......
  • State v. Iverson, No. 14402
    • United States
    • Supreme Court of South Dakota
    • 27 Febrero 1985
    ...a judge is statutory and not a constitutional right, except as it may be implicit in the right to a fair trial. State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964). Iverson had a fair We affirm the convictions. All the Justices concur. FOSHEIM, Chief Justice, WOLLMAN, Justice, and WUEST, ......
  • Request a trial to view additional results

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