
    1999 SD 86
    STATE of South Dakota, Plaintiff and Appellant, v. Christopher HETZEL, Defendant and Appellee.
    No. 20591.
    Supreme Court of South Dakota.
    Considered on Briefs on April 26, 1999.
    Reassigned June 11, 1999.
    Decided July 14, 1999.
    Mark Barnett, Attorney General, John E. Haak, Assistant Attorney General, Sioux Falls, South Dakota, for plaintiff and appellant.
    John P. Peterson of Johnson, Eklund, Nicholson,Peterson and Fox, Sioux Falls, South Dakota, for defendant and appellee.
   GILBERTSON, Justice (on reassignment).

[¶ 1.] The trial court dismissed with prejudice the State’s indictment of Christopher Hetzel due to an alleged violation of SDCL 23A-44-5.1 (180-day rule). State appéals and we reverse.

FACTS

[¶ 2.] On September 27,1997, Hetzel was arrested without a warrant on three uniform traffic tickets. He was taken to the Bon Homme county jail and held on a $1,000 cash bond. The tickets charged the offenses of ingestion of a controlled substance (SDCL 22-42-15), possession of drug paraphernalia (SDCL 22-42A-3), and possession of a controlled substance (SDCL 22-42-5).

[¶ 3.] On September 28, Hetzel was released on bond subject to certain conditions by order of magistrate Roger J. Hi-sek. Apparently, he did not physically appear before the magistrate. He was ordered not to depart from the circuit or violate any laws or ordinances and to keep the court advised of his whereabouts at all times. He was also required to sign a waiver of extradition rights as a condition of his bond. He was told to appear in court on October 20.

[¶ 4.] Bon Homme County State’s Attorney, Lisa Rothschadl, contacted the Attorney General’s office for assistance with the drug prosecution. The Attorney General’s office, through John Haak, recommended canceling the October 20 court date and instead presenting the case to the grand jury for indictment. Therefore, no formal complaint was filed. On November 4, the grand jury returned an indictment charging Hetzel with possession of a controlled substance. He appeared in court on November 18 for arraignment on the indictment. A trial was set for April 29, 1998.

[¶ 5.] On April 17, 1998, Hetzel filed a motion to dismiss pursuant to SDCL 23A-44-5.1. A hearing on the motion was held on April 21 and the trial court took the matter under advisement. After the hearing, but prior to the trial court’s decision, State filed a motion for good cause delay. Hetzel objected to State’s motion at a hearing held May 19.

[¶ 6.] The trial court found that the 180-day period of SDCL 23A-44-5.1 commenced on September 28, 1997 and expired on March 27, 1998. It dismissed with prejudice the indictment against Het-zel because the State failed to bring the matter to trial or otherwise dispose of the case before the period expired. It further found that the State had not established good cause for the delay. State appeals and raises the three issues, one of which is dispositive.

[¶ 7.] Whether the trial was scheduled within 180 days under SDCL 23A-44-5.1

STANDARD OF REVIEW
The trial court’s findings of fact are reviewed under the clearly erroneous standard. State v. Pellegrino, 1998 SD 39, ¶ 23, 577 N.W.2d 590, 599 (citing State v. Shilvock-Havird, 472 N.W.2d 773, 776 (S.D.1991)). “However, we review the determination of whether the period has expired as well as what constitutes good cause for delay, under a de • novo standard.” Pellegrino, 1998 SD 39 at ¶ 23, 577 N.W.2d 590, 599 (1998) (citing State v. Fowler, 1996 SD 79, ¶ 10, 552 N.W.2d 391, 392 (citing State v. Cooper, 421 N.W.2d 67, 69 (S.D.1988))).

State v. Sorensen, Hawk, 1999 SD 84, ¶ 6, 597 N.W.2d 682, 682.

ANALYSIS

[¶ 8.] Whether the trial was scheduled within 180 days under SDCL 23A-44-5.1.

[¶ 9.] In this case the trial court found the 180-day period began to run on the date the prosecution “should” have filed a charging document. The court found this date to be September 29, 1997. Since trial for the matter was set for April 29, 1998, the trial court found a violation of the 180-day rule.

[¶ 10.] This issue was recently resolved in Sorensen, 1999 SD 84, 597 N.W.2d 682. In that case, we stated the trial court cannot tack on a new requirement to the 180-day rule. Id. at ¶ 14, 597 N.W.2d at 682.

[ T]he rule does not read, the 180-day period will commence when the prosecution should have filed the charging document. The rule provides two requirements relevant to the issue now before us for the 180-day period to commence: 1) the defendant appears on a charging document; and 2) before a judicial officer.

Id.

[¶ 11.] The defendant first appeared before a judicial officer on a charging document or the indictments on November 17, 1997, not September 29, 1997. The trial was scheduled to begin within 180 days of that date. Since the case was scheduled to go to trial within 180 days of the date he first appeared before a judicial officer on a charging document, there is no violation of SDCL 23A-44-5.1. We reverse and remand to the trial court for trial.

[¶ 12.] MILLER, Chief Justice and KO-NENKAMP, Justice, concur.

[¶ 13.] SABERS and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 14.] 1. HETZEL’S TRIAL WAS NOT SCHEDULED WITHIN 180 DAYS AFTER HIS FIRST APPEARANCE AS REQUIRED BY SDCL 23A-44-5.1.

[¶ 15.] The majority opinion claims that the 180-day period began on November 18, 1997, when Hetzel appeared for arraignment on the indictment. However, the trial court found that the 180-day period commenced on September 28, 1997, when he “appeared” before the county clerk of courts and was released on bond. I agree with the trial court. Therefore, I dissent.

[¶ 16.] On September 28, 1997, Hetzel was released from custody on bond and required to execute a waiver of his extradition rights. His release was subject to conditions, including that he remain in the First Judicial Circuit. As the trial court noted, Hetzel had charges “hanging over him” at that time. State claims that Het-zel did not “appear” before a judicial officer under SDCL 23A-44-5.1 on September 28 because he was not physically brought before the magistrate who released him on bond. Although Hetzel did not physically appear before the magistrate on September 28, he did appear before a judicial officer for the purposes of SDCL 23A-44-5.1 and the 180-day period commenced to run. State v. Cooper, 421 67, 69 (SD 1988) (computing 180-day period from date defendant arrested and magistrate set bond).

[¶ 17.] SDCL 23A-4-1 requires that “[a] law enforcement officer shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate.” SDCL 23A-4-1 further provides:

If a person arrested without a warrant is brought before a committing magistrate, a complaint shall be filed forthwith. When a person, arrested with or without a warrant or given a summons, appears initially before a committing magistrate, the committing magistrate shall proceed in accordance with the applicable provisions of §§ 23A-4-2 to 23A-4-5, inclusive.

SDCL 23A-4^1 provides that the committing magistrate “admit the defendant to bail as provided by ... chapter 23A-43.” SDCL 23A-43-2 provides, in part:

Except for a defendant charged with an offense punishable by death or a defendant who is currently released on personal recognizance bond, a defendant shall, at his appearance before a committing magistrate or court be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the committing magistrate or court[.]

(Emphasis added). The State selected how Hetzel was to appear and evidently felt a physical appearance was not necessary in order to set his bail. In practice, many defendants are released on bond without physically appearing before a magistrate or judge.

[¶ 18.] Hetzel was arrested on three uniform traffic tickets. Printed on the top of all three tickets is the word “complaint.” Each ticket states the offense or violation for which Hetzel was arrested. Using the information in the “complaint” (uniform traffic tickets), the magistrate determined Hetzel’s bond and the conditions of his release. “[W]e have consistently computed [the 180-day period] from the date the defendant makes his very first court appearance on a charging document, regardless of the form that document takes.” State v. Kordonowy, 523 N.W.2d 556, 557 (S.D.1994). Hetzel made a constructive appearance before a judicial officer for purposes of the 180-day rule when he was released on bond and subjected to substantial conditions. Therefore, 180-day period began on September 28, 1997 and expired on March 27,1998.

[¶ 19.] The 180-day rule was adopted to prevent delays, procrastinations, and dilatory practices. State v. Hoffman, 409 N.W.2d 373, 376 (S.D.1987) (Wuest, CJ, concurring specially). It would circumvent the purpose of the 180-day rule to treat defendants such as Hetzel differently than those defendants released on bond who physically appear before a magistrate or judge. See Kordonowy, 523 N.W.2d at 557 (stating that a construction of 23A-44-5.1 which allows the State unlimited time to file an information after a defendant makes a first appearance on a complaint would “effectively defeat the purpose of the 180 day rule, and cannot be accepted”).

[¶ 20.] It would also circumvent the purpose of the 180-day rule to allow prosecutors to manipulate the commencement of the 180-day period by altering filed documents. The three tickets on which Hetzel was arrested are stamped filed September 30, 1997. The stamped date on two of the tickets is crossed out and the date November 17 is substituted in blue ink. See Attachment A. The initials of the clerk of courts appear under the handwritten dates. The third ticket is not altered. The bond agreement and waiver of extradition rights are also stamped filed September 30, 1997. The stamped dates on both are altered to November 17. See Attachments B and C. No explanation is offered in the record for these alterations. In addition, the State cannot, on its own motion, dismiss the proceedings and indict simply for the purposes of avoiding the sanctions of the 180-day rule and starting a new 180-day period. State v. Tiedeman, 433 N.W.2d 237, 240 (S.D.1988). Therefore, the State must establish a justifiable reason, constituting good cause, or the time will be counted. Here, the State failed to do so.

[¶ 21.] The majority opinion claims that the trial court based its decision to dismiss on when the prosecution “should” have filed a charging document. I disagree. The trial court dismissed because Hetzel made an appearance before a judicial officer for the purposes of the 180-day rule on September 28, 1997 and he was not brought to trial within 180 days of that date. Therefore, I dissent because Hetzel was not brought to trial within the time required by SDCL 23A-44-5.1.

[¶ 22.] 2. WHETHER THE 180-DAY RULE WAS TOLLED BYHET-ZEL’S MOTION AND REQUEST FOR DISCOVERYFILED ON NOVEMBER 18, 1997.

[¶ 23.] On November 18, 1997, Hetzel filed a motion and request for discovery. The State filed a reciprocal discovery motion on November 21 and indicated its compliance with Hetzel’s discovery request. The State now argues that Hetzel’s motion tolled the 180-day rule under SDCL 23A-44-5.1(4)(a). I disagree.

[¶ 24.] SDCL 23A-44-5.1(4)(a) provides:

(4) The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on competency and the period during which he is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions brought under § 23A-8-3; motions for a change of venue; and the time consumed in the trial of other charges against the defendant!]]

[¶ 25.] Hetzel’s motion and request for discovery was never noticed for hearing before the trial court. The State provided the materials requested by Hetzel and there was nothing for the trial court to resolve. There was no delay caused by Hetzel’s motion. Therefore, the 180-day rule was not tolled by Hetzel’s motion and request for discovery.

[¶ 26.] 3. WHETHER GOOD CAUSE EXISTED FOR THE DELAY.

[¶ 27.] State filed a motion asking the trial court to find good cause for the delay under SDCL 23A-44-5.1(4)(f). State did not ask for specific days to be excluded, but rather that “any period of time in excess of the 180 days should be excluded for good cause because the [trial court] invented a new rule at a time when it was impossible for the State to comply.” The trial court denied State’s motion finding that good cause for the delay was not established. I agree.

[¶ 28.] “The burden of showing good cause is on the prosecution.” Cooper, 421 N.W.2d at 71 (citing Hoffman, 409 N.W.2d at 375). The State was not surprised, as it claims, by the application of a new rule. It was simply disappointed by the enforcement of the old rule. The trial court found that the State’s confusion regarding when the 180-day period began running was a scheduling problem and did not constitute good cause for delay. This finding of fact is not clearly erroneous. Mere congestion of the court docket or scheduling errors do not establish good cause. See Kordonowy, 523 N.W.2d at 558. To hold otherwise would allow the State to take advantage of its own delay or mistakes.

[¶ 29.] Therefore, we should affirm the dismissal with prejudice for violation of SDCL 23A-44-5.1.

[¶ 30.] AMUNDSON, Justice, joins this dissent.

ATTACHMENT A

attachment b

ATTACHMENT C 
      
      . SDCL 22-42-15 provides:
      Any person who intentionally ingests, inhales, breathes or otherwise takes into the body any substance, except alcoholic beverages as defined in § 35-1-1, for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope of their practice, is guilty of a Class 1 misdemeanor.
     
      
      . SDCL 22-42A-3 provides:
      No person, knowing the drug related nature of the object,, may use or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale. or otherwise introduce into the human body any controlled substance or marijuana in violation of this chapter. Any person who violates any provision of this section is guilty of a Class 2 misdemeanor.
     
      
      . SDCL 22-42-5 provides:
      No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, ' while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B. A violation of this section is a Class 4 felony.
     
      
      . SDCL 23A-44-5.1(4)(f) provides:
      Other periods of delay not specifically enumerated herein, but only if the court finds that they are for good cause. A motion for good cause need not be made within the one hundred eighty day period.
     