State v. Anderson

• Decision Date: 30 March 1983
• Docket Number: No. 13782,13782
• Citation: 331 N.W.2d 568
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Richard Tracy ANDERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 568

331 N.W.2d 568

STATE of South Dakota, Plaintiff and Appellee, v. Richard Tracy ANDERSON, Defendant and Appellant.

No. 13782.

Supreme Court of South Dakota.

Argued Jan. 19, 1983.

Decided March 30, 1983.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Jeff Larson, Public Defender's Office, Sioux Falls, for defendant and appellant.

DUNN, Justice.

This is an appeal from an order revoking a suspended imposition of sentence and the subsequent imposition of sentence. We affirm.

On May 5, 1980, Richard Tracy Anderson (appellant) was arrested for driving under the influence of an intoxicating beverage in violation of SDCL 32-23-1(2). In addition to being charged with violating this provision, appellant was also charged for violation of SDCL 32-23-4 which makes the third offense of driving while under the influence of alcoholic beverages a felony.

On September 18, 1980, appellant entered into a plea bargain with the State. The terms of the plea bargain were reduced to writing by the trial court in its order of suspension of imposition of sentence. In return for pleading guilty to both counts, appellant received a suspended imposition of sentence and was placed on unsupervised probation for eighteen months. As part of the plea bargain, appellant was ordered to spend thirty days in jail with work privileges and ordered to pay a fine and court-appointed attorney fees. The order also prohibited appellant from operating a motor vehicle in the state of South Dakota for three years. In addition to the written order, the court verbally apprised appellant of the substance of the plea bargain and received assurances from appellant that he understood its contents.

On December 2, 1981, appellant was again arrested for driving while under the influence of an alcoholic beverage. Following the arrest, the State sought revocation of the suspended imposition of sentence on the grounds that appellant had violated the order prohibiting him from operating a motor vehicle in South Dakota. A revocation hearing was held on March 2, 1982, and the trial court found that appellant had violated the terms of the suspended imposition of sentence. At a sentencing hearing held on March 16, 1982, the trial court imposed a two-year sentence in the state penitentiary and also imposed a $2,000 fine.

Appellant contends the trial court erred in applying the "reasonable suspicion" standard to automobile stops. Instead, appellant asserts that police officers must have "probable cause" to believe an offense was committed before they can make a routine traffic stop. Since appellant believes probable cause was not established in the case at hand, he contends the evidence procured as a result of the stop is not admissible. We cannot agree.

While we recently had occasion to discuss the grounds necessary to make an investigatory stop of a pedestrian, State v. Soft, 329 N.W.2d 128 (S.D.1983), we have not reached this precise issue as it relates to routine traffic stops. We find the approach followed in Minnesota, as articulated in Marben v. State, Dept. of Public Safety, 294 N.W.2d 697 (Minn.1980), to be persuasive. There, the appealing party contended the initial stop without a warrant by a police officer was inconsistent with Fourth Amendment protections. In addressing this issue, the Minnesota Supreme Court stated:

It is well settled that in accordance with the Fourth Amendment of the United States Constitution a police officer may not stop a vehicle without a reasonable basis for doing so. Consistent with the principles set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer must have a specific and articulable suspicion of a violation before the stop will be justified.

294 N.W.2d at 699 (emphasis supplied).

The standard, which we will define as the reasonable suspicion standard, was more precisely defined in People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975). Discussing the standard, the court said:

It should be emphasized that the factual basis required to support a stop for a "routine traffic check" is minimal.... All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]"

36 N.Y.2d at 420, 369 N.Y.S.2d at 74, 330 N.E.2d at 44 (citation omitted).

We take this opportunity to extend the reasonable suspicion standard to automobile stops of the nature present in the case at hand. ¹ Here, an experienced police officer with special training in the detection of drinking drivers observed appellant's driving skills in the early morning hours of December 2, 1981. The officer noted appellant's vehicle was veering into snow-packed areas on the road and then weaving back to the clear lane, frequently leaving the traffic lane. We believe these activities, observed over several blocks, provided the police officer with a specific and articulable reason to stop appellant's motor vehicle to determine whether appellant was driving while under the influence of an alcoholic beverage.

Appellant next contends the trial court's failure to grant him credit on his maximum two-year sentence for the thirty days he spent in jail as a condition of his suspended imposition of sentence violates the double jeopardy clauses of both the United States and South Dakota Constitutions. ² We cannot agree.

In State v. Lohnes, 266 N.W.2d 109 (S.D.1978), we said: "Time served on probation need not be credited on a sentence imposed after revocation. This is true even where one of the conditions of probation includes some form of incarceration." Id. at 114 (citations omitted). Appellant contends that the extension of Lohnes beyond its facts will result in constitutional violations as set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). While Lohnes was denied credit for time served, appellant asserts this did not involve the subsequent imposition of a maximum sentence as exists in the case at hand. Following recent Michigan precedent, appellant believes that failure to grant credit for prior incarceration will "lead to the anomalous result of a defendant suffering longer incarceration as a result of having been placed on probation than if initially sentenced to the maximum prison term possible for the offense." People v. Sturdivant, 412 Mich. 92, 97, 312 N.W.2d 622, 625 (1981).

While we acknowledge the position taken by the Michigan Supreme Court, we decline the invitation to adopt it in this jurisdiction. Pearce, supra, addresses the basic constitutional guarantee against double punishment in cases where credit is denied for time served on a void conviction when the defendant is later sentenced following his reconviction. That situation varies considerably from the case at hand. Here, we are asked to consider whether a person is placed in double jeopardy when he is resentenced following violation of probation and credit is denied for time served as a condition of probation. We believe time served as a condition of probation need not be credited on a sentence imposed after revocation, even if that resentencing results in the imposition of the maximum statutory sentence. See State v. Lohnes, supra; Vezina v. State, 289 N.W.2d 408 (Minn.1979); State v. Fuentes, 26 Ariz.App. 444, 549 P.2d 224 (1976) aff'd 113 Ariz. 285, 551 P.2d 554 (1976). Although neither party cites it for authority, we believe SDCL 23A-27-13 provides legislative intent to support this proposition. This statute discusses the situations in which a suspended imposition of sentence can be imposed and when revocation of such suspension is warranted. The statute provides, in pertinent part:

A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period.

Finally, we also believe there are strong public policy reasons which compel us to deny credit for time served while on probation. Those reasons were best stated in State v. Young, 273 Minn. 240, 141 N.W.2d 15 (1966):

[I]f credit were required to be given, it is foreseeable that a sentencing court would be less inclined to impose the risks of probation upon society, knowing that such concessions might hinder communicating to the defendant the full impact of responsibility for his acts and, possibly frustrate rehabilitation. The effect upon a probationer could well be less respect for the restraints of probation and obedience to the law, with increased danger of recidivism. It is essential that a court should retain the threat of the original sentence upon breach of probation in order more effectively to discipline a probationer and protect against the risk of repeated injury to society.

Id. at 247, 141 N.W.2d at 20 (emphasis supplied). ³

Appellant contends revocation of his suspended imposition of sentence violated his due process right to be informed of the claimed violation. Appellant received notice that revocation was being sought because he breached the prohibition against driving which was contained in the order. Appellant asserts, however, that the prohibition of driving was not a condition...