#27909-a-LSW

2017 S.D. 24 

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

STEVEN R. DUNCAN, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LINCOLN COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JON SOGN

Judge

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MARTY J. JACKLEY

Attorney General

GRANT FLYNN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

RACHEL R. RASMUSSEN of

Peterson, Stuart, Rumpca

 & Rasmussen, Prof. LLC

Beresford, South Dakota Attorneys for defendant 

and appellant.

* * * *

CONSIDERED ON BRIEFS

APRIL 24, 2017

OPINION FILED 05/10/17
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WILBUR, Justice

[¶1.] Defendant appeals the circuit court’s conclusion that the State did not 

violate the 180-day rule. We affirm. 

Background 

[¶2.] Law enforcement officers arrested Steven Ray Duncan in Lincoln 

County, South Dakota, and placed him in the Minnehaha County Jail on September 

4, 2015, after he crashed his vehicle into the vehicle ahead of him at a stop sign. He

was charged with vehicular battery, driving under the influence (DUI), driving 

under revocation, open container in a motor vehicle, and following too closely. On 

September 8, 2015, while Duncan remained in custody, the Lincoln County State’s 

Attorney filed a formal complaint against him in circuit court alleging that he

committed the above-listed offenses, which included one felony and five 

misdemeanors. The circuit court, in Duncan’s absence, reviewed the complaint and 

accompanying traffic citations. The court issued a determination that probable 

cause supported his arrest and detention. The court also set his bond for release at 

$5,000 cash. Duncan did not post bond.

[¶3.] On September 12, 2015, a Lincoln County grand jury indicted Duncan 

on one count of vehicular battery, alternate counts of DUI, and one count of driving 

under revocation. The State filed a part II information to enhance the DUI charge 

from a class 1 misdemeanor to a class 4 felony, alleging that he had five prior DUI 

convictions. Duncan remained in custody. 

[¶4.] On October 5, 2015, Duncan first appeared before the circuit court for 

his arraignment on the indictment. The court advised him of his constitutional 
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rights, amended his bond, entered a scheduling order, and set an initial trial date 

for December 9, 2015. The State requested and received three continuances. 

Duncan never waived his right under SDCL 23A-44-5.1 to be brought to trial within 

180 days. On March 3, 2016, the court entered an order for the trial to start March 

15, 2016. 

[¶5.] Prior to the start of trial on March 15, Duncan moved to dismiss the 

charges against him for the State’s failure to bring him to trial within 180 days. He 

argued that although he did not appear before the circuit court on September 8, 

2015, he constructively appeared when the circuit court conducted a paper review of 

his case and set bond for his release. Counsel claimed that Duncan operated under 

the belief that 180 days began on September 8, 2015. The circuit court took the 

matter under advisement, indicating however that “at this time” it would deny his

motion to dismiss.

[¶6.] At the conclusion of the trial, Duncan again moved the circuit court to 

dismiss the charges based on the State’s violation of the 180-day rule. He conceded 

that he did not appear before a judicial officer on the complaint against him. But he 

argued that based on certain rules governing a defendant’s right to be brought 

before a committing magistrate and a right to a preliminary hearing, his 

constructive appearance constituted his first appearance before a judicial officer for 

purposes of the 180-day rule. In particular, he emphasized that he had a right to be 

brought before a committing magistrate within 48 hours of his arrest under SDCL 

23A-4-1 (Rule 5(a)). He then referred the court to SDCL 23A-4-3 (Rule 5(c)), which 

provides that the committing magistrate shall inform the defendant (charged with a 
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felony) of certain rights, including the right to a preliminary hearing. Based on the 

language of these statutes, counsel for Duncan argued that the State cannot “have 

it both ways.” The State cannot claim that his first appearance was October 5 for 

purposes of the 180-day rule while at the same time argue that his initial 

appearance was September 8 for purposes of calculating the date of his right to a 

preliminary hearing. 

[¶7.] The circuit court again denied Duncan’s motion to dismiss. The court 

said that the 180-day rule and his right to a preliminary hearing were separate and 

independent issues. The court concluded that under the plain language of SDCL 

23A-44-5.1, 180 days did not begin to run until the date Duncan first appeared 

before a judicial officer. It was undisputed that he first appeared before a judicial 

officer on October 5, 2015. So the court held that the State did not violate the 180-

day rule. On the issue of Duncan’s right to be brought before a committing 

magistrate and right to a preliminary hearing, the court also denied his motion to 

dismiss. 

[¶8.] The jury found Duncan not guilty of vehicular battery and guilty of 

DUI and following too closely. In a subsequent trial on the part II information, the 

jury found that he was the same person convicted of DUI on five prior occasions. 

The court sentenced Duncan to ten years in the penitentiary for the sixth-offense 

DUI. 

[¶9.] Duncan appeals, asserting that the circuit court erred when it denied 

his motion to dismiss for the State’s violation of the 180-day rule in SDCL 23A-44-

5.1. 
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Standard of Review 

[¶10.] Although we review a court’s findings of fact for clear error, we review 

de novo whether the State violated the 180-day rule. State v. Seaboy, 2007 S.D. 24, 

¶ 6, 729 N.W.2d 370, 372. 

Analysis 

 

[¶11.] Duncan asks this Court to reexamine its decisions in State v. 

Sorensen, 1999 S.D. 84, 597 N.W.2d 682, and State v. Hetzel, 1999 S.D. 86, 598 

N.W.2d 867. In those cases, we held that a defendant’s first appearance for 

purposes of the 180-day rule occurs when a defendant first appears before a judicial 

officer. Hetzel, 1999 S.D. 86, ¶¶ 10-11, 598 N.W.2d at 869; Sorensen, 1999 S.D. 84, 

¶¶ 14-15, 597 N.W.2d at 684. Both decisions were split, and the dissenting opinions 

argued that a defendant’s first appearance occurs when a defendant constructively 

appears before a judicial officer. Duncan asks this Court to adopt the view that a 

constructive appearance constitutes a first appearance under SDCL 23A-44-5.1 so 

that clarity can exist as to when the 180-day period commences. Duncan also 

argues that such interpretation will eliminate the opportunity for the State “to 

delay filing a formal charging document to extend the 180-day rule.” 

[¶12.] The language of SDCL 23A-44-5.1 is clear and unambiguous, and 

Sorensen and Hetzel provide sufficient clarity as to what constitutes a first 

appearance under SDCL 23A-44-5.1. A defendant must appear before a judicial 

officer before the 180-day period commences. Neither Sorensen nor Hetzel adopted 

any exceptions to that interpretation. Here, Duncan did not appear before a judicial 
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officer until October 5, 2015. The circuit court did not err when it held that the 180-

day period commenced on October 5, 2015. 

[¶13.] Duncan, however, alternatively claims that the circumstances of this 

case are distinguishable from Sorensen and Hetzel. He emphasizes that he was in 

custody for 32 days before being brought before a judicial officer, unlike Sorensen 

and Hetzel who were released on bond. Duncan also directs this Court to the fact 

that the State filed a formal charging document against him on September 8, in 

contrast to no formal charging documents being filed in Sorensen and Hetzel. 

[¶14.] In Sorensen, both defendants were arrested without warrants. A lay 

magistrate judge set bond in the defendants’ absences and signed orders releasing 

both on bond. 1999 S.D. 84, ¶¶ 2-3, 597 N.W.2d at 683. The State did not file a 

criminal complaint against either defendant. Over one month later, a grand jury 

indicted both defendants, and they personally appeared before a judicial officer on 

the indictments. We recognized that the 180-day rule “creates a right to disposition 

of a criminal case within 180 days unless good cause may be shown for delay.” Id. ¶ 

12. We also noted that “[t]he 180-day rule is a procedural rule of court and not a 

constitutional requirement.” Id. There are two requirements “for the 180-day 

period to commence: 1) the defendant appears on a charging document; and 2) 

before a judicial officer.” Id. ¶ 14. Because the rule is unambiguous and provides 

that the 180-day period commences when a defendant makes a first appearance on 

a charging document before a judicial officer, we held that the 180-day rule 

commenced when the defendants appeared before the judicial officer on the 

indictments. Id. ¶ 15.
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[¶15.] Similarly, in Hetzel, the defendant was arrested and detained on bond. 

1999 S.D. 86, ¶ 2, 598 N.W.2d at 867. The next day, Hetzel was released on bond 

but did not appear before a judicial officer. The State never filed a formal 

complaint. Instead, a grand jury indicted Hetzel, and Hetzel appeared before a 

judicial officer on the indictment. Id. ¶ 4. We referred to Sorensen and held that 

the 180-day period commenced when Hetzel appeared before a judicial officer on the 

indictment and not when the State should have filed a complaint. Id. ¶ 11. 

[¶16.] Here, neither the fact the State filed a formal charging document 

against Duncan nor that Duncan remained in custody for 32 days prior to appearing 

before a judicial officer requires a different interpretation of SDCL 23A-44-5.1. As 

we said in Sorensen, “[t]he 180-day rule is a procedural rule of court and not a 

constitutional requirement.” 1999 S.D. 84, ¶ 12, 597 N.W.2d at 684. It has two 

requirements before the time period commences: “1) the defendant appears on a 

charging document; and 2) before a judicial officer.” Id. ¶ 14. 

[¶17.] Yes, the State’s complaint filed on September 8, 2015, qualifies as a 

charging document. But Duncan did not appear before a judicial officer on that 

charging document. He appeared before a judicial officer on the indictment on 

October 5, 2015. Therefore, the circuit court did not err when it denied Duncan’s 

motion to dismiss. 

[¶18.] Affirmed. 

[¶19.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.