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State v. Arguello12/18/2002
require the court to take into consideration the recidivous nature of defendant's conduct." Id.
[ .] In Delano v. Petteys, 520 NW2d 606 (SD 1994), this Court determined that application of an amended statute relating to revocation of good time conduct violated the prohibition against ex post facto application of the law. That case demonstrates Arguello's erroneous interpretation of our ex post facto jurisprudence; the ex post facto prohibition is intended to prevent punishment from occurring retrospectively. Here, SDCL 32-23-4.1 operates prospectively, applying past convictions to determine punishment for a conviction that occurs down the road. At all times, the punishment is for the then existing conviction and not the prior convictions.
[ .] In addition, "it is settled that criminal or penal legislation amending existing law may not change the legal consequences of acts completed before its effective date, a statute, however, is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status pre-existing the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective." Lewis v. Class, 1997 SD 67, 23, 565 NW2d 61, 65. Arguello's sentence was for his third DUI conviction, a conviction that occurred after SDCL 32-23-4.1 was amended.
[ .] We affirm.
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