#28303-dismiss-JMK
2018 S.D. 63

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                     ****

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellant,

      v.

IRWIN SHARPFISH,                            Defendant and Appellee.

                                     ****

                   APPEAL FROM THE CIRCUIT COURT OF
                     THE SEVENTH JUDICIAL CIRCUIT
                   PENNINGTON COUNTY, SOUTH DAKOTA

                                     ****

                     THE HONORABLE ROBERT GUSINSKY
                                 Judge

                                     ****

MARTY J. JACKLEY
Attorney General

QUINCY R. KJERSTAD
Assistant Attorney General
Pierre, South Dakota

MARK VARGO
JOSHUA SATTERLEE
Pennington County State’s Attorney          Attorneys for plaintiff and
Rapid City, South Dakota                    appellant.

ELIZABETH REGALADO
Office of the Public Defender
   for Pennington County                    Attorneys for defendant and
Rapid City, South Dakota                    appellee.

                                     ****

                                            CONSIDERED ON BRIEFS ON
                                            MARCH 19, 2018
                                            OPINION FILED 08/15/18
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KERN, Justice

[¶1.]        Defendant was arrested and charged in magistrate court for driving

under the influence of alcohol. Defendant filed a motion to suppress evidence

obtained from the stop, arguing law enforcement lacked reasonable suspicion. The

magistrate court denied defendant’s motion, and defendant was convicted and

sentenced after a bench trial. Defendant appealed to the circuit court, which

reversed the magistrate court’s suppression order. The State filed an intermediate

appeal, which we dismiss.

                         Facts and Procedural History

[¶2.]        On August 8, 2015, Officer Garrett Loen, while on patrol in Rapid City,

South Dakota, received a dispatch at 1:45 a.m. regarding a report of an intoxicated

driver getting into a blue minivan. Officer Loen, who was in the immediate vicinity,

responded to the report and observed a vehicle matching the description given

driving through a strip mall parking lot. The minivan stopped at the Corner Pantry

gas-station pump. Officer Loen pulled up behind the van and activated his amber

warning lights.

[¶3.]        Officer Loen exited his vehicle and approached the driver, Irwin

Sharpfish, who had gotten out and appeared to be searching for something in the

front seat of the minivan. Officer Loen asked Sharpfish how he was doing and

Sharpfish replied, “I’m doing good.” After pausing briefly, Officer Loen approached

Sharpfish and observed that his eyes appeared bloodshot, he had an odor of alcohol

on his breath and person, he slurred his speech, and he swayed as he stood. Officer

Loen positioned himself between Sharpfish and the pump, standing about a foot


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away from Sharpfish. Sharpfish stated that he was just trying to fuel his car.

Officer Loen explained that he had received a report about an intoxicated driver, to

which Sharpfish responded, “Oh really.” Officer Loen asked Sharpfish whether he

had any identification with him, and Sharpfish produced a Nevada driver’s license.

[¶4.]        After examining the license, Officer Loen asked Sharpfish whether he

had been drinking that night. Sharpfish repeatedly denied that he had, and Officer

Loen began asking Sharpfish whether he would agree to undergo field sobriety

tests. Sharpfish eventually agreed to perform a horizontal gaze nystagmus test.

Based on his observations of signs of intoxication, Officer Loen placed Sharpfish

under arrest for driving under the influence. A subsequent blood draw taken

pursuant to a warrant revealed that Sharpfish had a blood-alcohol content of 0.222.

[¶5.]        On August 20, 2015, the State charged Sharpfish with driving under

the influence of alcohol in violation of SDCL 32-23-1(2), and, in the alternative,

driving with a blood alcohol content of 0.08 or greater in violation of SDCL 32-23-

1(1). On August 25, 2015, the State filed a part II information alleging a previous

conviction of driving under the influence.

[¶6.]        On April 5, 2016, Sharpfish filed a motion to suppress any evidence

gathered during his encounter with Officer Loen. In his motion, Sharpfish argued

that Officer Loen lacked reasonable suspicion to justify an investigatory stop.

Sharpfish contended that the encounter amounted to an unreasonable search and

seizure and thus violated his rights under the Fourth Amendment to the United

States Constitution.




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[¶7.]          On April 19, 2016, the magistrate court held an evidentiary hearing.

Officer Loen testified, and the court received as an exhibit a DVD containing the

dashcam recording of the encounter. On July 25, 2016, the court denied the motion

to suppress, concluding that before the encounter evolved into a seizure, Office Loen

made observations justifying a reasonable suspicion of criminal activity.

[¶8.]          On September 27, 2016, the magistrate court held a bench trial and

found Sharpfish guilty of driving under the influence in violation of SDCL 32-23-3.

On December 20, 2016, the court sentenced Sharpfish to 180 days in jail and

revoked his license for one year. The court suspended the sentence and held the

revocation in abeyance until Sharpfish completed his appeal to the circuit court. On

January 3, 2017, the magistrate court entered a judgment of conviction. On

January 9, 2017, Sharpfish filed a notice of appeal from the judgment of conviction

to the circuit court.

[¶9.]          On June 19, 2017, the circuit court issued an order reversing and

remanding the judgment. In its decision, the court concluded that “the stop and

detention of Sharpfish was investigatory from its inception.” The court ordered that

Sharpfish’s motion to suppress be granted and the case remanded for further

proceedings.

[¶10.]         The State petitioned for an intermediate appeal, arguing this Court

has jurisdiction to hear an appeal under SDCL 23A-32-5. Because we determine

that no appeal can lie from the circuit court’s remand order, we do not reach

whether the encounter between Sharpfish and Officer Loen constituted a search

and seizure.


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                               Analysis and Decision

[¶11.]       The State petitioned for a discretionary appeal under SDCL 23A-32-5

and SDCL 23A-32-12, but argues only that this Court possesses jurisdiction to hear

an appeal from the circuit court’s order under SDCL 23A-32-5, which provides:

             An appeal by a prosecuting attorney may be taken to the
             Supreme Court from:
                    (1) An order of a circuit court or a magistrate suppressing
                    or excluding evidence or requiring the return of seized
                    property in a criminal proceeding;
                    (2) An order of a circuit court or a magistrate sustaining a
                    motion to dismiss a complaint on statutory grounds or
                    otherwise.
             An appeal under this section may not be taken after a defendant
             has been put in jeopardy and is not a matter of right but of
             sound judicial discretion. Appeals from such orders shall be
             taken in the same manner as intermediate appeals in
             subdivision § 15-26A-3(6). No appeal taken under this section
             shall delay any trial unless a stay be granted in the discretion of
             the Supreme Court.

According to the State, the statute allows the State to appeal because the circuit

court’s order to reverse and remand effectively acts as a suppression order.

[¶12.]       However, from our review of the record, an issue arises regarding the

timeliness of the State’s appeal. The State, in its July 5, 2017 petition for

intermediate appeal, attached an email from the circuit court dated June 19, 2017.

The State acknowledged the attachment as “constituting notice of entry” of order.

[¶13.]       SDCL 23A-32-6 provides that “[a]n appeal under § 23A-32-4 or 23A-32-

5 must be taken within ten days after written notice of entry of the judgment or

order.” SDCL 23A-32-12 also references the procedures under SDCL 15-26A-13

that require a petition for discretionary review of an order to be filed within ten

days after notice of entry of the order. Assuming arguendo that the circuit court’s

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order constituted an intermediate order before trial, the State would likewise be

required to petition for discretionary review within ten days. Because the State

appealed more than ten days after the notice of entry of the order, an appeal under

SDCL 23A-32-4, SDCL 23A-32-5, or SDCL 23A-32-12 is untimely.

[¶14.]       Statutory authorization for an appeal must be explicit. Because we

find no basis for an appeal to this Court in SDCL chapter 23A-32 at the present

stage of the proceedings, the State’s appeal must be dismissed.

[¶15.]       GILBERTSON, Chief Justice, ZINTER and JENSEN, Justices, and

SEVERSON, Retired Justice, concur.

[¶16.]       SALTER, Justice, not having been a member of the Court at the time

this action was assigned to the Court, did not participate.




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