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State v. Neitge3/15/2000
Appeal From The Second Judicial Circuit, Minnehaha County, SD
Hon. Peter H. Lieberman, Judge
Reversed
Considered On Briefs Feb 14, 2000; Opinion Filed Mar 15, 2000
[ ] Defendant James Neitge (Neitge) appeals that portion of the circuit court's sentence revoking his contractor license for life as a part of his criminal sentence for grand theft. We reverse.
FACTS AND PROCEDURE
[ ] Neitge was arrested for grand theft in Sioux Falls, South Dakota on February 4, 1999. At the time of his arrest, Neitge was working in Sioux Falls as a self-employed building contractor. On December 17, 1997, Neitge contracted with Carl Scott for work on a residential construction project. Scott advanced Neitge $3,000 to purchase materials to be used on the project. After taking the $3,000, Neitge never returned to Scott's residence to perform the construction work or purchased any materials for the project. Neitge spent the $3,000 for his personal use.
[ ] He was subsequently charged by indictment with two counts of grand theft (SDCL 22-30A-1, SDCL 22-30A-17(1)). Additionally, State filed a Part II Information charging Neitge as a habitual offender (SDCL 22-7-7). Neitge was arraigned on February 8, 1999. The circuit court advised him of his constitutional and statutory rights and of the maximum penalty he faced (i.e., ten years in the penitentiary and/or a fine of $10,000) as required by SDCL 23A-7-4. Neitge entered not guilty pleas to the two counts of grand theft.
[ ] On March 11, 1999, Neitge changed his pleas pursuant to a plea agreement. Neitge agreed to plead guilty to Count I of grand theft, (SDCL 22-30A-17(1)), a Class 4 felony. The plea agreement provided there would be a cap of five years imprisonment in the state penitentiary. Neitge also understood he would have to pay restitution to Scott in the amount of $3,000. State agreed these were the terms of the plea agreement and said nothing concerning the revocation of Neitge's contractor license as a part of the agreement.
[ ] After hearing the terms of the plea agreement, the circuit court again informed Neitge of the maximum penalty he faced by pleading guilty (i.e., ten years in the penitentiary and/or a $10,000 fine) and also that the court could impose restitution. However, the circuit court made no mention of revocation of Neitge's contractor license. The circuit court informed Neitge that if it did not accept the plea agreement, it would allow him to withdraw his guilty plea. Neitge went forward and entered his plea as outlined in the plea agreement and sentencing was set for a time after completion of a presentence investigation and report.
[ ] Neitge's sentencing took place on April 12, 1999. He was sentenced to seven years in the penitentiary with two years suspended, and restitution was ordered in the amount of $4,500 to reimburse Scott and the other victims. Additionally, the circuit court revoked Neitge's Sioux Falls municipal contractor license for life. Neitge now appeals the revocation of his contractor license.
ANALYSIS AND DECISION
[ ] Whether the circuit court lacked jurisdiction to revoke Neitge's Sioux Falls municipal contractor license as a part of his sentence.
[ ] Neitge argues the circuit court erred in ordering the revocation of his contractor license as a part of his sentence because it did not have jurisdiction to do so.
[ ] Initially we must note Neitge failed to object to the circuit court's revocation of his license on the specific grounds of lack of jurisdiction. However, " urisdiction may be challenged at any time during the pendency of the proceedings an
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