The SD Supreme Court handed down two decisions this morning:
1) 3rd trial does not offend double jeopardy;
2) Conversion of Default hearing to “merits” permitted; problematic
issue with filing of appellate brief.
Summaries follows:
STATE v. ROSE, 2024 S.D. 56:
Defendant was prosecuted for assault in Magistrate Court. After two mistrials, Defendant was convicted
by Jury. Defendant asserted (and now
asserts again) that the 3rd jury trial was barred by double jeopardy. Defendant also asserted that mistrial # 2,
granted at the request of the State’s Attorney, was wrongly granted. The
Circuit Court rejected the Defendant’s double
jeopardy claim. And, so does the SD Supreme Court. This is a unanimous decision (5-0), with
opinion authored by Justice DeVaney.
Of interest is the SD Supreme Court’s recognition that the Circuit
Court in this matter was acting an intermediate appellate court and not
entitled to deference:
[¶22.] Although
this is an appeal from a circuit court’s order, the circuit court was
functioning here as an intermediate court of appeals. See State v. Delfs,
396 N.W.2d 749, 752 (S.D. 1986). As in Delfs, the circuit court did not
hear the evidence or testimony. See id. Therefore, “the circuit court decision
is not entitled to any deference.” Id.
GOFF v. GOFF, 2024 S.D. 57: A default hearing on a Divorce
petition evolved into a trial on the merits when Defendant (H) appeared telephonically
and indicated that he wished to proceed.
Both parties were placed under oath and testified. The trial court granted W a divorce on the
ground of adultery and made determinations of child custody, child support,
division of property and also made a partial award of attorney fees in favor of
W. The SD Supreme Court held that the
trial court did not err by proceeding to a trial on the merits. As to the merits, the SD Supreme Court reversed
and remanded as to the following: 1) determination of child support arrearage; 2)
visitation restriction on H mandating that visitation be exercised only in SD (restriction
unsupported by proper findings); 3) attorney fee award to W. This is a unanimous decision (5-0) with opinion
authored by Justice Kern.
There is an interesting issue here with the attempted filing
of an appellate brief by W. W missed the
deadline to file an Appellee brief and thereafter filed a motion for extension
of time which was granted. W submitted her
Brief, but it was filed with the Court and served on opposing counsel 1 day
late. The SD Supreme Court Clerk
rejected it. Thereafter W filed a Motion
for Waiver of this Default and the Waiver was granted with directions that W
file the Brief by a subsequent date. W did
not file (or refile) the Appellee Brief.
As a result the Court admonishingly stated that W had not
presented any arguments on appeal:
[¶11.] The
Court granted this motion, ordering that “appellant shall file the appellee’s
brief on or before April 8, 2024.” No such brief was filed and, as a result,
this Court has been presented with no arguments from [W].
Nonetheless, the Court relented restating the established rule
in SD that, “failure of the appellee to
file a brief does not automatically translate to victory for the appellant.”
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
