State v. Dubray, No. 21150.

CourtSouth Dakota Supreme Court
Writing for the CourtPER CURIAM
Citation2000 SD 136,618 N.W.2d 728
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Sheldon Charles DUBRAY, Defendant and Appellant.
Docket NumberNo. 21150.
Decision Date01 November 2000

618 N.W.2d 728
2000 SD 136

STATE of South Dakota, Plaintiff and Appellee,
v.
Sheldon Charles DUBRAY, Defendant and Appellant

No. 21150.

Supreme Court of South Dakota.

Considered on Briefs April 24, 2000.

Decided November 1, 2000.


618 N.W.2d 729
Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee

David J. Huss, Rapid City, South Dakota, Attorney for defendant and appellant.

PER CURIAM

[¶ 1.] Sheldon Charles DuBray appeals from an order finding him in direct contempt of court. SDCL 23A-38-1. He was ordered to serve twenty-five (25) days in the Pennington County Jail. We affirm.

FACTS

[¶ 2.] On August 2, 1999, Circuit Judge Kern sentenced DuBray to two years in the penitentiary for distribution of one ounce or less of marijuana with consideration. SDCL 22-42-7. DuBray "was mad" and "vented." When he pounded his hands on the wooden railing surrounding the jury box the court ordered him to cease and desist.

[¶ 3.] As DuBray turned the corner to leave the courtroom he uttered an obscenity directed at the court. The court heard that he had uttered something under his breath. The deputy escorting DuBray immediately brought him back to the courtroom where the following occurred:

THE COURT: All right. We'll go on the record. Do you need any additional assistance, officer?
DEPUTY SHERIFF: Well, Mr. Dubray had something to say as he left the courtroom. Do you want to tell the judge what you said?
THE DEFENDANT: I said bitch.
THE COURT: All right. The Court is going to find you in direct contempt of this Court. We'll set this matter on for a proceeding on that. The Court then finding that you have committed a contemptuous act in the presence of the Court.

According to the deputy's incident report, DuBray actually said "fuckin' bitch."

[¶ 4.] During DuBray's sentencing for criminal (direct) contempt, the trial court explained:

MR. HUSS: Your Honor, for clarification purposes, based upon some of these statements that you made, you indicate
618 N.W.2d 730
that Mr. Dubray uttered the obscenity outside the courtroom?
THE COURT: He uttered it right here. I could hear he had uttered something underneath his breath. He had already beat on the wood railing which in itself is a contemptuous act committed in the direct presence of the Court. The Court then finds his utterance in the presence of the deputy under his breath as he was going out of the corner here further contemptuous. The deputy then had him step back in and asked him to repeat it, he stated, then he repeated. The Court finds both those acts to be direct contempt of this Court and sentenced to 25 days for which he will receive no credit. Now, I've prepared an order, you are certainly permitted to obtain a copy.
If there is nothing further we're adjourned and that direct contempt being 23A-38-1. The Court finds it's necessary for control of the Court's decorum and to assure that all litigants express proper respect towards the Court and towards judicial proceedings.
We're adjourned.

ISSUE ONE

[¶ 5.] Does the Supreme Court have jurisdiction to hear DuBray's appeal?

[¶ 6.] The State contends that an appeal from an order of direct contempt is not an appeal from a final judgment of conviction and therefore not subject to appeal under SDCL 23A-32-2, which provides:

An appeal to the Supreme Court may be taken by the defendant from final judgment of conviction.

The State also claims that this Court has no jurisdiction because the appellate case was not "disposed of" within 30 days of filing the appeal pursuant to SDCL 23A-38-7, which provides:

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4 practice notes
  • Docks Venture, L. L.C. v. Dashing Pac. Grp., Ltd., No. 2013–0473.
    • United States
    • United States State Supreme Court of Ohio
    • October 1, 2014
    ...84 L.Ed.2d 274 (1985) ; Bray v. United States, 423 U.S. 73, 75, 96 S.Ct. 307, 46 L.Ed.2d 215 (1975) ; State v. DuBray, 2000 S.D. 136, 618 N.W.2d 728, ¶ 7 ; Von Hake v. Thomas, 759 P.2d 1162, 1167 (Utah 1988) ; Matter of Siracusa, 458 A.2d 408, 410 (D.C.1983) ; Surina v. Buckalew, 629 P.2d 9......
  • Block v. Drake, No. 23013.
    • United States
    • Supreme Court of South Dakota
    • May 26, 2004
    ...and the incessant command of a court's conscience that justice be done in light of all the facts." Pesicka, 2000 SD 137, ¶ 17, 618 N.W.2d at 728 (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)). We have held that "[r]elief under SDCL 15-6-60(b) is granted only upon a s......
  • Pesicka v. Pesicka, No. 21303.
    • United States
    • Supreme Court of South Dakota
    • November 1, 2000
    ...ON THE LUMP SUM AMOUNT UNDER SDCL 15-6-60(b)(6). [¶ 16.] In the alternative, Betty requests that if the provision is found unambiguous 618 N.W.2d 728 "the Court award her a monthly benefit or at least interest on the lump sum of $6,056.43." She asserts that SDCL 15-6-60(b)(6) supp......
  • Hiller v. Hiller, No. 27094.
    • United States
    • Supreme Court of South Dakota
    • July 1, 2015
    ...relief under Rule 60(b) will not be disturbed on appeal unless the circuit court abused its discretion. Pesicka, 2000 S.D. 137, ¶ 18, 618 N.W.2d at 728. [¶ 22.] “Rule 60(b) ... is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgmen......
4 cases
  • Docks Venture, L. L.C. v. Dashing Pac. Grp., Ltd., No. 2013–0473.
    • United States
    • United States State Supreme Court of Ohio
    • October 1, 2014
    ...84 L.Ed.2d 274 (1985) ; Bray v. United States, 423 U.S. 73, 75, 96 S.Ct. 307, 46 L.Ed.2d 215 (1975) ; State v. DuBray, 2000 S.D. 136, 618 N.W.2d 728, ¶ 7 ; Von Hake v. Thomas, 759 P.2d 1162, 1167 (Utah 1988) ; Matter of Siracusa, 458 A.2d 408, 410 (D.C.1983) ; Surina v. Buckalew, 629 P.2d 9......
  • Block v. Drake, No. 23013.
    • United States
    • Supreme Court of South Dakota
    • May 26, 2004
    ...and the incessant command of a court's conscience that justice be done in light of all the facts." Pesicka, 2000 SD 137, ¶ 17, 618 N.W.2d at 728 (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)). We have held that "[r]elief under SDCL 15-6-60(b) is granted only upon a s......
  • Pesicka v. Pesicka, No. 21303.
    • United States
    • Supreme Court of South Dakota
    • November 1, 2000
    ...ON THE LUMP SUM AMOUNT UNDER SDCL 15-6-60(b)(6). [¶ 16.] In the alternative, Betty requests that if the provision is found unambiguous 618 N.W.2d 728 "the Court award her a monthly benefit or at least interest on the lump sum of $6,056.43." She asserts that SDCL 15-6-60(b)(6) supp......
  • Hiller v. Hiller, No. 27094.
    • United States
    • Supreme Court of South Dakota
    • July 1, 2015
    ...relief under Rule 60(b) will not be disturbed on appeal unless the circuit court abused its discretion. Pesicka, 2000 S.D. 137, ¶ 18, 618 N.W.2d at 728. [¶ 22.] “Rule 60(b) ... is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgmen......

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