State v. Hoffman, s. 15358

• Decision Date: 15 July 1987
• Docket Number: Nos. 15358,15393,15423,15417,15420,s. 15358
• Citation: 409 N.W.2d 373
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Chadley R. HOFFMAN, Robert C. Itzen, Gloria Gege Den Hartog, Richard T. Breum, Michael David Otton, and Lester Estenson, Defendants and Appellants. 15469, and 15533.
• Court: South Dakota Supreme Court

Page 373

409 N.W.2d 373

STATE of South Dakota, Plaintiff and Appellee, v. Chadley R. HOFFMAN, Robert C. Itzen, Gloria Gege Den Hartog Richard T. Breum, Michael David Otton, and Lester Estenson, Defendants and Appellants.

Nos. 15358, 15393, 15417, 15420, 15423 15469, and 15533.

Supreme Court of South Dakota.

Argued March 24, 1987.

Decided July 15, 1987.

Janine Kern, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Scott D. Kading of Moore, Rasmussen, Kading & McGreevy, Sioux Falls, for defendant and appellant Chadley R. Hoffman.

Jeff Larson, Minnehaha County Public Defender, Sioux Falls, for defendants and appellants Robert C. Itzen and Lester Estenson.

Drake A. Titze, Minnehaha County Public Defender, Sioux Falls, for defendants and appellants Gloria Gege Den Hartog, Richard T. Breum, and Michael David Otton.

MORGAN, Justice.

The defendants in this consolidated action appeal denial of the motions to dismiss their respective cases due to State's failure to comply with the provisions of SDCL 23A-44-5.1, the so-called 180-day rule. We reverse and remand with instructions.

SDCL 23A-44-5.1 provides:

The prosecution shall dispose of all criminal cases by a plea of guilty or nolo contendere, trial or dismissal within one hundred eighty days from the date the defendant has first appeared before a judicial officer on the complaint or indictment. Any period of delay shall be excluded if the trial court finds good cause for the delay. In the event of the prosecution's failure to dispose of the action within the time limit required by this section, the action shall be dismissed.

The rule was adopted by this court on January 7, 1985, after consideration at the rules hearing the previous December. The rule took effect on July 1, 1985. Each of the defendants had been arrested and made their first appearance prior to the effective date of the rule. None of the defendants were brought to trial within 180 days after the effective date of the rule. Hoffman's appeal is before us on petition for intermediate appeal and the balance are direct appeals from judgments of conviction entered in Minnehaha County. Hoffman is charged with a felony triable only in circuit court while the others were all charged with misdemeanors triable in magistrate court.

All of the motions for dismissal in these appeals were heard before the same trial judge as pretrial motions. The trial court denied the various motions because it found that the defendants failed to satisfy the factors set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), particularly the lack of affirmative demands for trial and the lack of a showing of prejudice to the defendants. In addition, the trial court found that good cause existed for the delay based on the totality of the circumstances.

We note in passing that denials of dismissals under SDCL 23A-44-5.1 are not appealable to either the circuit court or this court lacking a final judgment or a petition for an intermediate appeal as was done in the Hoffman appeal.

We glean three essential issues from the briefs of the parties. First, we must determine whether the defendant must make any showing beyond the expiration of the 180-day time period stated in the statute. Secondly, we must define what constitutes "good cause" for delay, which would toll the running of the statutory period. Finally, we must determine if a dismissal for violation of the statute is a dismissal with prejudice.

SDCL 23A-44-5.1 creates statutory rights in addition to a defendant's constitutional right to a speedy trial. By way of that statute, we have affirmatively stated that defendant's right to a disposition of his criminal case within 180 days unless good cause can be shown for the delay. SDCL 23A-44-5.1 is a statutory and not constitutional requirement, thus it stands on a different legal footing than constitutional claims and requires an analysis separate and distinct from constitutional claims. See United States v. Wentland, 582 F.2d 1022 (5th Cir.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979); People v. Farmer, 339 N.W.2d 218 (Mich.1983); State ex rel. Rabe v. Ferris, 97 Wis.2d 63, 293 N.W.2d 151 (1980). We have recently underscored these fundamental differences in cases involving habeas corpus relief. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987).

We believe SDCL 23A-44-5.1 is clear and unambiguous on its face. It requires a disposition of criminal matters within 180 days lacking good cause for delay. We do not deem the statute to be synonymous with the constitutional requirement for a speedy trial, thus the four-factor test used to determine whether a defendant has received a speedy trial set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is inapplicable to an analysis of an alleged violation of SDCL 23A-44-5.1. Since the trial court utilized the Barker factors, we find that it committed reversible error. We hold that once a defendant has established the running of the 180-day time period he has established a prima facie case for dismissal. See also State v. Holiday, 335 N.W.2d 332 (S.D.1983), wherein this court simply counted days to determine if a preliminary hearing was held within the required time period.

The 180-day period may be tolled if State moves for and can show good cause for delay. To foster certainty and finality, we hold that a motion for a good cause delay must be filed prior to the expiration of the 180-day period. ^* We recognize, however, that SDCL 23A-44-5.1 does not on its face require State to file a motion for good cause delay prior to the expiration of the 180-day period. We therefore determine that State may have thirty days after the filing of this decision to file motions for good cause delay on pending cases that have already exceeded the 180-day period.

The parties also disagree as to what should constitute good cause for delay under the statute. The main reason for the delay, according to State, was that the court docket was very congested and the system could not handle the volume of cases. We agree that the docket in the second circuit was congested. Indeed, docket congestion was a factor ultimately leading to the adoption of SDCL 23A-44-5.1. We agree with the Michigan Appellate Court and hold that "[e]xcept for short-term docket congestion caused by extraordinary circumstances, delay caused by docket congestion is attributable to the prosecution." People v. Smith, 143 Mich.App. 122, 127, 371 N.W.2d 496, 499 (1985). The Supreme Court of California in Rhinehart v. Santa Barbara-Goreta Mun. Ct., 35 Cal.3d 772, 200 Cal.Rptr. 916, 677 P.2d 1206 (1984), also held that court congestion does not constitute good cause for delay under a 180-day statute. The California court also agreed that the burden of showing good cause is on the prosecution. Id. at 781, 200 Cal.Rptr. at 922, 677 P.2d at 1212.

Nor are we sympathic to State's claim that SDCL 23A-44-5.1 should have been phased in over a period of two years. We do not believe that such a delay was warranted, especially in view of the fact that the proposed rule was announced in the November, 1984, State Bar Newsletter and that public hearings were held prior to the adoption of the 180-day rule. Furthermore, the rule was adopted by this court on January 7, 1985, nearly six months in advance of the July 1, 1985, effective date. In addition to this initial six-month period, State had an additional 180 days in which to dispose of the pending criminal actions. Considering the flexibility of our Unified Judicial System we believe that this nine-month period provided a sufficient transitional period.

State also claims that SDCL 23A-44-5.1 should not apply to cases where the initial appearance took place prior to July 1, 1985. While a strict reading of the statute arguably supports this claim, it would be absurd to interpret the statute as allowing that result. We hold that in pending cases where the defendant initially appeared prior to July 1, 1985, the 180-day period began running on July 1, 1985.

Finally, we address the issue of whether the dismissal required by SDCL 23A-44-5.1 should be a dismissal with prejudice or simply a dismissal leaving open the possibility of a new charge. Allowing State to simply recharge offenders after dismissal under SDCL 23A-44-5.1 would totally defeat the purpose behind the rule. In addition, a new charge would once again place burdens on the defendant which may include the retention of new legal counsel, the posting of a new bond, and spending additional time in jail, each of which would involve new expense or hardship to the defendant. Hilbert v. Dooling, 476 F.2d 355 (2d Cir.1973).

We reverse and remand to the trial court with instructions to grant the motions to dismiss with prejudice under SDCL 23A-44-5.1. We further determine that this decision is prospective only and shall be applicable only to defendants whose appeals we have considered in this proceeding and such other defendants whose appeals have been filed prior to the entry of this decision.

HERTZ, Circuit Judge, concurs.

WUEST, C.J., concurs specially.

HENDERSON, J., concurs in part and dissents in part.

MILLER, J., dissents.

HERTZ, Circuit Judge, sitting for SABERS, J., disqualified.

WUEST, Chief Justice (concurring specially).

I concur with the majority opinion and take judicial notice the so-called congestion was a result of dilatory practices which have now been corrected. We adopted the 180-day rule to prevent delay, procrastinations, and dilatory practices, and we intend to enforce it. Justice Henderson makes a strong argument against the "grace period of thirty days." If our ruling applied only to the situation in the second circuit, I would probably support his position. But, it does not--it applies to the whole State. We have now made it clear the motions for good cause delay must be made prior to the...