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State v. Chavez7/17/2002
557 NW2d 590, 599 (quoting State v. Knoche, 515 NW2d 834, 840 (SD 1994); State v. Dixon, 419 NW2d 699, 701 (SD 1988)). This issue has been waived.
[ ] We find all other issues raised on appeal to be without merit.
[ ] For the foregoing reasons, we affirm in part and remand for a vacation of the surplus assault convictions on counts 1, 2, 5 and 6 in the judgment and sentence dated August 23, 2001.
[ ] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.
[ ] SABERS, Justice, concurs in part and concurs specially in part. SABERS, Justice (concurring in part and concurring specially in part).
[ ] This may be the most important criminal law case in South Dakota in years in respect to proper charging, instructing, convicting and sentencing. The majority opinion recognizes that it is not "permissible to punish a defendant more than once for one offense in violation of a single statute" and that "[t]he remaining four aggravated assault convictions must be vacated."
[ ] The majority opinion acknowledges at that "the State concedes in its brief that the trial court should have only entered two convictions ... rather than six." Despite that clear language that the trial court erred and "wrongly convicted" Chavez four times, the majority opinion refuses to bite the bullet and REVERSE the trial court. It attempts to avoid the inevitable by simply "affirming in part" and remanding to vacate the "surplus assault convictions."
[ ] I respectfully submit that we must "bite the bullet" and tell the trial courts of this state that, at least from now on, they must do it right the first time or they will have to do it over until they do it right.
[ ] If the sentences are wrong and must be vacated, simple logic tells us that the convictions are wrong and must be vacated by reversal. Consequently, the instructions on which these convictions were based were wrong because they failed to clearly provide in the alternative. If the charges did not clearly provide in the alternative, they too were wrong, and the defendant has been improperly overcharged, and if prejudiced thereby, would deserve a new, fair trial.
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