State v. Corle, 12877
| Decision Date | 22 February 1980 |
| Docket Number | No. 12877,12877 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Bobby CORLE, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Dennis R. Holmes, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Steven L. Jorgensen, Sioux Falls, for defendant and appellant.
On January 12, 1979, after being stopped for a routine traffic offense, appellant shot the police officer who approached him. Appellant was charged with Count 1, aggravated assault (SDCL 22-18-1.1(3)) 1 ; Count 2, possession of a firearm while committing a felony (SDCL 22-14-13) 2 ; and Count 3, possession of a firearm by a convicted felon (SDCL 22-14-15). A habitual offender information was subsequently filed against appellant.
Pursuant to a plea bargain accepted by the court, appellant entered pleas of guilty to Counts 1, 2 and 3; the habitual criminal information was dismissed; and appellant was sentenced to ten years on Count 1, fifteen years on Count 2 to run consecutive to Count 1, and two years on Count 3 to be served concurrently with Counts 1 and 2. He appeals from the judgment and sentence. We affirm.
Appellant contends that consecutive sentencing pursuant to SDCL 22-14-13 violates his constitutional double jeopardy protections.
Even though a single transaction gave rise to both the charge of aggravated assault and the charge of possession of a firearm while committing a felony, appellant cannot claim double jeopardy. This Court has followed the "same evidence" test with regard to a double jeopardy defense. As set forth in State v. Pickering, 88 S.D. 548, 553, 225 N.W.2d 98, 101 (1975), that test states:
(T)he plea of double jeopardy is available only when the separate offenses are in substance the same, so that the evidence which proves the one would prove the other and if an essential element of one is not necessarily present in the other there is no former jeopardy.
We view this test to be controlling. See State v. Coe, 286 N.W.2d 340 (S.D.1979); In re Mehrer, 273 N.W.2d 194 (S.D.1979); State v. West, 260 N.W.2d 215 (S.D.1977).
It is clear that the two crimes at issue require proof of different elements as defined by statute. Aggravated assault under SDCL 22-18-1.1(3) requires the showing of: 1) an attempt to cause or the knowing causation of any bodily injury, 2) to a law enforcement officer, 3) while the officer is engaged in the performance of his duties. Commission of a felony while armed with a firearm requires the showing of: 1) the commission or the attempted commission of any felony, 2) while armed with a firearm. Each statute requires proof of an additional element not necessary to prove the other. Under the "same evidence" test, there is no former jeopardy in this instance.
When an...
To continue reading
Request your trial
-
State v. Chavez, 22087.
...of a felony while armed, is not a statutory violation of SDCL 22-14-14. Nor is it a violation of double jeopardy. State v. Corle, 294 N.W.2d 799, 800 (S.D.1980) (per curiam) (stating one transaction leading to charges of a commission of a felony while armed and aggravated assault under SDCL......
-
State v. Wooley
...was authorized to impose a separate sentence of up to ten years in the penitentiary for each of Wooley's three convictions. State v. Corle, 294 N.W.2d 799 (S.D.1980); State v. Coe, 286 N.W.2d 340 (S.D.1979) (where information charges separate offenses in separate counts, separate sentences ......
-
State v. Cook
...any bodily injury, 2) to a law enforcement officer, 3) while the officer is engaged in the performance of his duties. See State v. Corle, 294 N.W.2d 799 (S.D.1980). It is not disputed that Officer Whiting was a law enforcement officer in Appellant does contend that since Officer Whiting did......
-
State v. Seidschlaw
...offense within the meaning of SDCL 22-1-2(27). Accordingly, the trial court did not err in imposing consecutive sentences. State v. Corle, 294 N.W.2d 799 (S.D.1980); State v. Teutsch, The judgment is reversed, and the case is remanded to the circuit court for new trial. In view of our holdi......