The SD Supreme Court handed down one decision this morning,
holding inter alia:
1) LWOP on 2nd
degree murder conviction upheld, but related restitution order reversed and
remanded
Summary follows:
STATE v. FALKENBERG,
2021 S.D. 59: Defendant was found guilty of 2nd degree murder, by
jury trial, and sentenced to Life without the possibility of parole
(LWOP). The trial court also entered an
extensive order regarding restitution.
On appeal, the SD Supreme Court affirmed the conviction, but reversed
and remanded the restitution order. A
substantial portion of this opinion is devoted to a discussion of, “[w]hether the circuit court’s restitution order violated
[Defendant’s] due process rights and the separation of powers doctrine.” Portions of the Court’s discussion on
restitution are set forth here:
[¶54.] On
appeal, Falkenberg argues that the circuit court’s restitution award to the
Fund and the family was open-ended, speculative, and in contravention of SDCL
23A-28-3 and his due process rights.
* * *
[¶63.] For
the reasons explained above, we reverse the portion of the circuit court’s
restitution order requiring Falkenberg to pay up to $15,000 to the Fund and up
to $40,000 to the victims for future counseling expenses and remand for an
evidentiary hearing to address Falkenberg’s objections to the State’s requests.
If the State submits adequate foundational evidence, the court may order
Falkenberg to pay restitution for expenses that had already been incurred at
the time of sentencing as well as the cost of ascertainable counseling expenses
which, although not yet incurred, had been requested by the State at the time
of sentencing.
The ruling is unanimous (5-0) with the Court’s opinion
authored by Justice Kern.
This decision may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
