State v. Steffenson

• Decision Date: 07 July 1970
• Docket Number: No. 10667,10667
• Citation: 178 N.W.2d 561,85 S.D. 136
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Clarence Neils STEFFENSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 561

178 N.W.2d 561

85 S.D. 136

STATE of South Dakota, Plaintiff and Respondent, v. Clarence Neils STEFFENSON, Defendant and Appellant.

No. 10667.

Supreme Court of South Dakota.

July 7, 1970.

Beardsley, Osheim & Wagner, Watertown, for defendant and appellant.

Gordon Mydland, Atty. Gen., R. James Zieser, Asst. Atty. Gen., Pierre, John L. Foley, State's Atty., Watertown, for plaintiff and respondent.

HANSON, Judge.

A preliminary information filed in the Municipal Court of Watertown charged defendant with the offense of driving while under the influence of alcoholic liquor on March 27, 1968 contrary to SDC 1960 Supp. 44.9922 (now SDCL 32--23-- 1). Defendant waived preliminary hearing and was bound over to circuit court. The preliminary information did not allege prior convictions, but the transcript of proceedings of the committing magistrate contained the following notation: 'and it appearing defendant has had two prior convictions of driving while intoxicated, and could be subjected to a penalty out of the jurisdiction of this Court by reason of such prior convictions.'

On September 3, 1968 an Information was filed in circuit court charging defendant with the offense of driving while under the influence of alcoholic liquor as alleged in the preliminary information. The state's attorney also filed on the same day a supplemental pleading entitled 'Information Part II' which alleged that defendant had been convicted of the same offense in 1962 and 1965 and requested he be sentenced for having been previously twice convicted of the offense charged in the Information.

Separate motions to quash and dismiss Part II of the Information were made by defendant and denied by the court. Thereafter, on September 16, 1968 defendant changed his plea of 'not guilty' to 'Guilty' to the offense alleged in the Information. He also pleaded guilty to Part II of the Information and was sentenced to serve a term of six months in the county jail. On his appeal, which is not questioned by the State, defendant principally contends (1) he was not properly bound over to circuit court as he did not have a preliminary hearing on Part II of the Information, and (2) his plea of guilty to the Information barred conviction under Part II. Both contentions are necessarily based on the assumption that the allegations of prior convictions in Part II of the Information created a separate crime or constitute an essential element of the primary crime alleged in Part I of the Information. Neither assumption is correct.

On the first conviction of the crime of driving while intoxicated a defendant may be imprisoned in the county jail not exceeding 90 days, fined not exceeding $300, and be prohibited from operating a motor vehicle on the public highways not exceeding one year, SDCL 32--23--2. The punishment is greater for a second offense, SDCL 32--23--3, and for a third offense a defendant may be imprisoned in the state penitentiary for not more than three years, SDCL 32--23--4. Increased penalty provisions of this nature are common. 'The legislature has the right or discretion to provide heavier punishment for habitual criminals, or subsequent offenders, than for first offenders, and, under statutory authority in many jurisdictions, where a person is convicted of successive offenses, or of subsequent violations of the same statute, the court in sentencing accused is authorized to inflict a penalty more severe than that provided for a first offense.' 24B C.J.S. Criminal Law § 1958, p. 429. As expressed in State v. Staples, 100 N.H. 283, 124 A.2d 187, 'The bearing which the operation of motor vehicles by persons under the influence of intoxicating liquor has upon the ever-mounting accident and death toll on our highways is a matter of common knowledge and concern. The purpose in providing a heavier punishment for a second offense is 'to compel obedience * * * when the milder sentence has failed in that respect".

The procedure followed by the State in this case is statutorily directed:

'23--32--9. Information alleging prior conviction--Separate parts each signed by prosecutor.--In any criminal case brought pursuant to the provisions of chapter 22--7, or the provisions of § 32--23--3 or § 32--23--4, wherein the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecutor. In the first part the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged.'

'23--32--10. Information alleging prior conviction--Plea by accused on first part--Method of trial, election.--The plea and election of method of trial by the accused shall be first taken only on the first part of the information described in § 23--32--9, but before he is put to plea thereon he shall be informed by the judge, in the absence of the jury, of the contents of the second part. There shall be entered in the minutes of the court the time and place when and where the judge so informed the accused, and like entry thereof shall be made in the judgment.'

'23--32--11. Information alleging prior conviction--Finding of guilty on first part--Election on second part.--On a finding of guilty on the first part of the information described in § 23--32--9, plea shall be taken and, if necessary, election made on the second part and trial thereon proceeded with, and until such time no information as to the second part of the information shall be divulged to the jury. If the accused shall have elected a jury trial on the second part of the information, such trial may be had to the same or another jury as the court may direct.'

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