State v. Baldwin
| Decision Date | 26 November 1980 |
| Docket Number | No. 13092,13092 |
| Citation | 299 N.W.2d 820 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Howard M. BALDWIN, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Howard M. Baldwin, pro se.
Howard M. Baldwin (Baldwin) appeals from the judgment entered upon a jury verdict finding him guilty of speeding. We reverse and remand.
At 10:47 a. m. on January 17, 1980, the Baldwin vehicle's speed was clocked by Highway Patrolman Abrams on Interstate 90 in Meade County, South Dakota. Abrams, by the use of a radar "speed gun," determined Baldwin's speed to be 74 miles per hour, well in excess of the 55 miles per hour speed limit. Baldwin was issued a citation for this violation.
Baldwin requested a jury trial, which was held on March 26, 1980. At the trial and on this appeal Baldwin has proceeded pro se.
Initially, the case was assigned to Magistrate Severns. The prosecuting attorney on March 20, 1980, properly moved for and was granted a change of judge. The case was reassigned to Magistrate Shelvin on March 21, 1980. Baldwin then filed an affidavit for change of judge on March 25, 1980. That evening Judge Hersrud, the presiding judge of the Eighth Judicial Circuit, telephoned Judge Moses and by voice order assigned the case to Judge Moses. 1 Judge Moses, pursuant to the voice of order, presided at Baldwin's trial. A written order assigning this case to Moses was signed on March 26, 1980, but was not filed until March 28, 1980.
Baldwin's first contention is whether Judge Moses could properly assume jurisdiction over this case prior to the filing of a written order as required by SDCL 15-12-32.
SDCL 15-12-32 provides that:
The presiding judge of the circuit court ... shall review the affidavit (of prejudice) ... and (if) it is determined that the affidavit is timely and that the right to file the affidavit has not been waived or is not otherwise legally defective, shall assign some other circuit judge or magistrate ... as is appropriate to preside in such action, by filing an order of such appointment with the clerk of the court of the county wherein said action is pending. From the filing of such order the judge or magistrate therein designated shall have full power, authority and jurisdiction to proceed in the matter. (Emphasis supplied.)
The language of SDCL 15-12-32 is too plain to require interpretation. Reassignment of a case is only accomplished by "filing an order" appointing a new judge. This order must be filed with the clerk of the court of that county. Jurisdiction vests in the reassigned judge only from the time of "the filing of such order." See generally, State v. Lehman, 203 Neb. 341, 278 N.W.2d 610 (1979).
There is no indication in the record that the order was filed with a clerk having jurisdiction in Meade County, or marked "filed with the Court" by a judge having jurisdiction in Meade County on the date executed. The order was only filed with the clerk of the court of Meade County two days after trial. Therefore, Judge Moses was without jurisdiction to hear the case on March 26, 1980, and we must reverse and remand for lack of jurisdiction.
As we are reversing and remanding for a new trial due to lack of jurisdiction, we will address other issues raised on appeal that may arise upon re-trial.
Baldwin contends that the assessment of "costs of investigation" 2 was improper in this case. Baldwin was fined $100 plus "costs of investigation" in the amount of $491.38. Although it is not clear from the trial court's order or the record, both sides apparently concede that part, if not all, of these costs are allocable to the expense of bringing in Michael Thul as an expert witness for the State. Thul was flown in from Vail, Colorado, merely for the edification of the jury on the workings of a radar "speed gun." None of the testimony presented by Thul related to the particular radar "speed gun" used in clocking Baldwin, nor was there any apparent need to verify the underlying scientific principles upon which a radar "speed gun" operates. 3 Baldwin did not claim that this particular radar "speed gun" was defective and even if he had, no tests or even a visual inspection of this radar "speed gun" were...
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...an order, Lodermeier asserts Judge Hurd never acquired jurisdiction and thus all subsequent proceedings are void. In State v. Baldwin, 299 N.W.2d 820 (S.D.1980), this Court interpreted SDCL 15-12-32, which provides in The presiding judge ... of the circuit shall review the affidavit ... [an......
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State v. Guzman
...and expenses of special agents, and reporter's per diem. Payment of costs may be enforced as a civil judgment against the defendant. In Baldwin, this Court determined that expert fees are costs of the prosecution. 299 N.W.2d at 822 (noting that expert witness fees are properly taxed in a cr......
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State v. Guzman
...expert witness fees are appropriate under SDCL 23A-27-26 so long as the costs were necessary to the prosecution. See State v. Baldwin , 299 N.W.2d 820, 822 (S.D. 1980) (noting that where an expert's testimony is not necessary, the fees incurred could not be allocated to the defendant). In p......
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State v. Peterson
...remedy when a judge announces an intention to proceed despite having been disqualified by the filing of an affidavit); cf. State v. Baldwin, 299 N.W.2d 820 (S.D.1980) (orally assigned judge without jurisdiction until assignment order is filed); see generally cases interpreting similar statu......