#26769-dismissed-LSW

2014 S.D. 12

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
SHANNON FLOWERS,                             Petitioner and Appellant,

      v.

DOUGLAS WEBER, WARDEN
OF THE SOUTH DAKOTA
STATE PENITENTIARY,                          Respondent and Appellee.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                     BEADLE COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE RONALD K. ROEHR
                                Judge

                                    ****

PAUL HENRY
Sioux Falls, South Dakota                    Attorney for petitioner
                                             and appellant.


MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                         Attorneys for respondent
                                             and appellee.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON FEBRUARY 18, 2014

                                             OPINION FILED 03/05/14
#26769

WILBUR, Justice

[¶1.]        More than 30 days after the circuit court filed its denial of his

application for habeas corpus relief, Shannon Flowers sought a certificate of

probable cause pursuant to SDCL 21-27-18.1. In spite of the untimeliness of his

motion, the circuit court granted Flowers’s motion and certified an issue for appeal.

Flowers timely filed his notice of appeal to this Court. Because SDCL 21-27-18.1 is

jurisdictional, we dismiss Flowers’s appeal.

                  FACTS AND PROCEDURAL BACKGROUND

[¶2.]        The circuit court filed the final order denying Flowers’s application for

writ of habeas corpus on May 7, 2013. The Beadle County State’s Attorney gave

notice of entry of the circuit court’s final order denying application for writ of

habeas corpus on May 9, 2013. On June 10, 2013, Flowers filed his motion for

issuance of certificate of probable cause. The circuit court granted the certificate of

probable cause on June 28, 2013. Flowers filed his notice of appeal on July 26,

2013.

                                      DECISION

[¶3.]        Because it is dispositive, we examine the State’s argument that

Flowers’s motion for issuance of certificate of probable cause was jurisdictionally

defective. SDCL 21-27-18.1 provides in pertinent part:

             A final judgment or order entered under this chapter may not be
             reviewed by the Supreme Court of this state on appeal unless
             the circuit judge who renders the judgment or a justice of the
             Supreme Court issues a certificate of probable cause that an
             appealable issue exists. A motion seeking issuance of a
             certificate of probable cause shall be filed within thirty days from
             the date the final judgment or order is entered.


                                           -1-
#26769

(Emphasis added.) “The plain language of this statute indicates that the deadline

to file the motion for certificate of probable cause to the circuit court is thirty days

from the actual entry of the order, not the notice of entry.” Christensen v. Weber,

2007 S.D. 102, ¶ 4, 740 N.W.2d 622, 623.* And we have “previously interpreted this

statute as jurisdictional.” Id. (citing Hannon v. Weber, 2001 S.D. 146, ¶ 4, 638

N.W.2d 48, 49).

[¶4.]         The record reveals that the circuit court filed the final order denying

Flowers’s application for writ of habeas corpus on May 7, 2013. Flowers filed his

motion for issuance of certificate of probable cause on June 10, 2013. Flowers’s

motion for certificate of probable cause was filed more than 30 days from the actual

entry of the final order. SDCL 21-27-18.1 (“A motion seeking issuance of a

certificate of probable cause shall be filed within thirty days from the date the final

judgment or order is entered.” (emphasis added)).

[¶5.]         Flowers’s motion was late, and therefore, defective. The untimely

filing of Flowers’s motion for certificate of probable cause deprived the circuit court

of jurisdiction to grant that certificate. Because the circuit court lacked jurisdiction,

this Court also lacks jurisdiction to consider the issue certified on appeal.

Therefore, we dismiss Flowers’s appeal for lack of jurisdiction.




*       “[T]here is no notice of entry requirement in SDCL 21-27-18.1 as there is in
        SDCL ch. 15-26A.” Christensen, 2007 S.D. 102, ¶ 5, 740 N.W.2d at 623. See
        Hannon v. Weber, 2001 S.D. 146, ¶ 4, 638 N.W.2d 48, 49) (stating that
        “[t]here is no notice of entry or service requirement as with civil appeals filed
        under SDCL ch. 15-26A. Because there is no service requirement, the three-
        day mailing rule provided by SDCL 15-6-6(e), applicable to civil appeals
        under SDCL ch. 15-26A, does not apply here”).

                                            -2-
#26769

[¶6.]      GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




                                 -3-
