#23710-dis-ZINTER, Justice 

2006 SD 30 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

ROBERTA LEE SCHWALLER, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SIXTH JUDICIAL CIRCUIT 

GREGORY COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE MARK SMITH 

Magistrate Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

JOHN J. SIMPSON Attorney for defendant 

Hamill, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON FEBRUARY 13, 2006 

 OPINION FILED 3/29/06 
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ZINTER, Justice 

[¶1.] Roberta Schwaller appeals her misdemeanor conviction for making 

threatening or harassing telephone calls in violation of SDCL 49-31-31. Because we 

do not have jurisdiction to consider a direct appeal from a misdemeanor conviction 

in magistrate court, we dismiss. 

PROCEDURAL HISTORY 

[¶2.] On January 27, 2005, a criminal complaint was filed against Schwaller 

for making threatening or harassing telephone calls in violation of SDCL 49-31-31, 

a class 1 misdemeanor. The Honorable Kathleen F. Trandahl was assigned to 

preside in this matter. On February 1, 2005, Judge Trandahl recused herself. On 

February 10, 2005, the Honorable Max A. Gors, presiding judge of the Sixth Judicial 

Circuit, appointed the Honorable Magistrate Judge Mark Smith to replace Judge 

Trandahl. The order provided that Judge Smith would "act in the stead of the said 

Judge Kathleen F. Trandahl, with full power, authority and jurisdiction to proceed 

in the matter." 

[¶3.] Judge Smith presided over the jury trial. The jury returned a guilty 

verdict against Schwaller. Judge Smith sentenced her to: 360 days in the county 

jail with 330 days suspended; a $500.00 fine with $500.00 suspended; unsupervised 

probation for one year; and she was prohibited from using the telephone except to 

call immediate family members and 911 for emergency purposes. 

[¶4.] On July 15, 2005, Schwaller filed a notice of appeal directly with this 

Court challenging the conviction and sentence. As stated in her brief: "Schwaller 

appealed from the Judgment of Conviction and Sentence executed by the Honorable 

Mark Smith, Law Trained Magistrate for the Sixth Judicial Circuit, Gregory 
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County South Dakota dated June 24, 2005." Brief for Schwaller at 1, State v. 

Schwaller, 2006 SD 30, 712 NW2d 869. However, neither Schwaller nor the State 

cited any authority giving this Court jurisdiction to review a direct appeal from 

magistrate court. Instead, both parties cited general appellate statutes providing 

jurisdiction to review appeals from judgments of conviction entered in circuit court. 

Because this is a direct appeal from a judgment of conviction entered by a 

magistrate judge, and because this Court is required to take notice of jurisdictional 

defects, we examine our jurisdiction to entertain this appeal. 

ANALYSIS 

[¶5.] "This Court has only 'such appellate jurisdiction as may be provided by 

the legislature. The right to appeal is statutory and therefore does not exist in the 

absence of a statute permitting it.'" Dale v. City of Sioux Falls, 2003 SD 124, ¶ 6, 

670 NW2d 892, 894 (citing State v. Hoxeng, 315 NW2d 308, 308 (SD 1982)). "The 

appellate jurisdiction of this Court will not be presumed but must affirmatively 

appear from the record." Double Diamond Constr. v. Farmers Coop., 2003 SD 9, ¶ 

6, 656 NW2d 744, 746 (citing State v. Hare, 260 NW2d 224, 226 (SD 1977)). "The 

question of jurisdiction to hear an appeal may be raised sua sponte." Id. In fact, we 

are "required to take notice of jurisdictional questions, whether presented by the 

parties or not." Dale, 2003 SD 124, ¶ 6, 670 NW2d at 894. 

[¶6.] Judge Smith assumed jurisdiction over this case because Judge 

Trandahl recused herself. Pursuant to SDCL 15-12-32, in the event of the 

disqualification of a circuit court judge, the presiding judge of the circuit "shall 

assign some other circuit judge or magistrate of that circuit as is appropriate to 
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preside in such action." "A magistrate court with a magistrate judge presiding has 

concurrent jurisdiction with the circuit courts to try and determine all cases of 

misdemeanor." SDCL 16-12B-11. Therefore, Judge Smith had jurisdiction over the 

action. 

[¶7.] Following the jury trial and entry of the judgment by Judge Smith, 

Schwaller had the right to appeal her conviction. However, the appeal was to 

circuit court. "[T]here is a right to appeal to the circuit court1

 from any final order or 

judgment of the magistrate court with a magistrate judge presiding, and such 

appeal shall be taken in the manner prescribed by law or rule for appeals to the 

circuit court." SDCL 16-12B-16; 16-12A-27.1. "This Court has also adopted rules 

governing the manner in which such appeals are taken from magistrate court to the 

circuit court." Dale, 2003 SD 124, ¶ 8, 670 NW2d at 895 (citing SDCL ch 15-38 

(appeal from magistrate court to the circuit court)). 

[¶8.] Consequently, we have previously held that "'with the one exception 

provided by SDCL 23A-32-5 (appeals by the State from certain pre-trial orders of a 

magistrate), there is no right of direct appeal from magistrate court to the Supreme 

Court.'" Id. (citing Hoxeng, 315 NW2d at 309). And, when a party fails to pursue 

the only appeal authorized by law (to circuit court), this Court has no jurisdiction to 

entertain a direct appeal. See e.g., Dale, 2003 SD 124, ¶ 9, 670 NW2d at 895 

(dismissing appeal in a civil action brought directly to this Court from magistrate 

court); Hoxeng, 315 NW2d at 309 (dismissing direct appeal from a law trained 

magistrate's judgments of conviction entered after a jury trial). Although SDCL 

23A-32-2 generally provides for an appeal to this Court "from [a] final judgment of 
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conviction," we have specifically held that this appellate statute does not abrogate 

the appellate statutes requiring an appeal from magistrate court to circuit court 

after a criminal conviction. Hoxeng, 315 NW2d at 309. Therefore, under this 

directly controlling authority, we have no jurisdiction to review this appeal. 

[¶9.] Appeal dismissed. 

[¶10.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and 

MEIERHENRY, Justices, concur.