State v. Pekarek

Decision Date15 February 1967
Docket NumberNo. 10338,10338
Citation148 N.W.2d 328,82 S.D. 486
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Joe PEKAREK, Sr., Defendant and Appellant.
CourtSouth Dakota Supreme Court

Morris Myers, Aberdeen, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, Erwin L. Wiest, State's Atty., Herreid, for plaintiff and respondent.

HANSON, Judge.

Defendant was arrested and charged with the crime of rape on August 7, 1965. He immediately retained counsel. For some reason the crime of rape was not further prosecuted, but defendant was re-arrested and charged with the crime of indecent molestation of a child. A preliminary hearing was held on August 16, 1965 at which time defendant was bound over to Circuit Court for trial.

On August 21, 1965 an information was filed in Circuit Court charging defendant with the crime of indecent molestation of a child. An arraignment was held the same day before the Honorable H. E. Mundt. Defendant appeared in person and by counsel and entered a plea of guilty. He was thereupon sentenced to serve a term of five years in the State Penitentiary where he is now confined.

On February 4, 1966 defendant made application to the Circuit Court which imposed sentence for an order allowing him to withdraw his plea of guilty and substitute a plea of not guilty. The application was heard on February 28, 1966 and defendant appeals from the order denying the same.

SDC 1960 Supp. 34.3522 provides in part 'The Court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted.' Under this section, an application to withdraw a plea is addressed to the sound discretion of the trial court. State v. Walters, 48 S.D. 322, 204 N.W. 171, and State v. Mee, 67 S.D. 335, 292 N.W. 875.

Some jurisdictions also allow a plea of guilty to be withdrawn at the discretion of the trial court after judgment, 21 Am.Jur.2d, Criminal Law, § 506, p. 498, Annotations 20 A.L.R. 1447 and 66 A.L.R. 631. However, the permissive authority to do so under our statute ends when the judgment becomes final. Thereafter, the judgment cannot be vacated, in accordance with general principles, unless the judgment is void because of fraud in its procurement or for other vitiating reasons. State v. McKeen, 186 Wash. 127, 56 P.2d 1026; State v. Harper, 220 Iowa 515, 258 N.W. 886; and State v. Tracy, 219 Iowa 1412, 261 N.W. 527. No such nullifying grounds were urged by defend...

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2 cases
  • State ex rel. Pekarek v. Erickson
    • United States
    • South Dakota Supreme Court
    • December 27, 1967
    ...for a term of five years. An application to withdraw his plea of guilty was overruled and the ruling was affirmed on appeal. State v. Pekarek, S.D., 148 N.W.2d 328. Appellant sought through his present counsel in the Circuit Court of Minnehaha County a writ of habeas corpus. Several grounds......
  • State v. McConkey
    • United States
    • South Dakota Supreme Court
    • December 16, 1976
    ...An application to withdraw a plea pursuant to this statute is addressed to the sound discretion of the trial court. State v. Pekarek, 82 S.D. 486, 148 N.W.2d 328; State v. Mee, 67 S.D. 335, 292 N.W. 875; State v. Walters, 48 S.D. 322, 204 N.W. 171. When measured against that standard, I wou......

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