Christensen v. Weber

#24299-dismissed-JKM

2007 SD 102

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

DAVID CHRISTENSEN, Petitioner and Appellant,

v.

DOUGLAS WEBER, Warden,
South Dakota State Penitentiary, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA

* * * *

HONORABLE STEVEN R. JENSEN
Judge

* * * *

GREGORY T. BREWERS of
Strange, Farrell & Johnson, P.C. Attorneys for petitioner
Sioux Falls, South Dakota and appellant.

LAWRENCE E. LONG
Attorney General

CRAIG M. EICHSTADT
Deputy Attorney General Attorneys for respondent
Pierre, South Dakota and appellee.

* * * *
CONSIDERED ON BRIEFS
ON AUGUST 27, 2007

OPINION FILED 10/10/07
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MEIERHENRY, Justice

[¶1.] This action involves David Christensen’s writ of habeas corpus to this

Court. Christensen’s motion for a certificate of probable cause was untimely before

the circuit court. The circuit court granted the motion and certified seven issues for

appeal, despite the motion’s untimeliness. Christensen then timely filed his notice

of appeal to this Court. We dismiss for lack of jurisdiction.

FACTS AND PROCEDURE

[¶2.] On August 31, 2006, the circuit court signed Findings of Fact and

Conclusions of Law and its Order denying Christensen’s habeas petition. Notice of

Entry was served on October 5, 2006. Christensen filed his motion for certificate of

probable cause on October 16, 2006. The circuit court granted parts of the motion

and certified seven issues for appeal on October 18, 2006. Christensen timely filed

his notice of appeal to this Court on October 26, 2006.

[¶3.] Pursuant to SDCL 21-27-18.1, the last date Christensen could timely

file his motion for certificate of probable cause to the circuit court was October 2,

2006. 1

ANALYSIS AND DECISION

[¶4.] SDCL 21-27-18.1 governs this action and provides in relevant part:

A final judgment or order entered under this chapter may
not be reviewed by the Supreme Court of this state on appeal
unless the circuit judge who renders the judgment or a justice of
the Supreme Court issues a certificate of probable cause that an
appealable issue exists. A motion seeking issuance of a
certificate of probable cause shall be filed within thirty days
from the date the final judgment or order is entered. . . .

1. The thirtieth day fell on Saturday, September 30, 2006. The motion was due
Monday, October 2, 2006.
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The plain language of this statute indicates that the deadline to file the motion for

certificate of probable cause to the circuit court is thirty days from the actual entry

of the order, not the notice of entry. 2 This Court has previously interpreted this

statute as jurisdictional. Hannon v. Weber, 2001 SD 146, ¶4, 638 NW2d 48, 49.

Thus, the motion filed with the circuit court was fourteen days late and is defective.

[¶5.] Christensen requests that we apply the thirty-day limitations period

from the time of notice of entry. Christensen asserts that neither his counsel nor

State’s counsel knew the order had been signed and that the order was not returned

to either of them. The certificate of service shows that notice of entry and copies of

the order were sent to counsel on October 5, 2006, three days past the expiration of

the limitations period. However, there is no notice of entry requirement in SDCL

21-27-18.1 as there is in SDCL ch. 15-26A. As we have previously stated, this Court

cannot read into the rule a notice requirement when one does not exist. Hannon,

2001 SD 146, ¶4, 638 NW2d at 49.

[¶6.] The State wishes to waive the timeliness issue and proceed on the

merits in the interest of judicial economy. The State cites Loop v. Solem in support

of this request. 398 NW2d 140 (SD 1986). In Loop, this Court remanded for a new

sentencing to allow for a new appeal period when Loop’s appeal was untimely and

deprived this Court of jurisdiction under SDCL 23A-32-15. Id. at 142. However,

2. SDCL 21-27-18.1 is a Supreme Court Rule last amended July 1, 2002. 2002
SL Ch. 250, §3. The last amendment to this rule extended the period in
which a petitioner has to file a motion for a certificate of probable cause to
this Court from fifteen days to twenty days upon refusal of the circuit judge
to issue a certificate. The rule first appeared in 1983 and was modified in
1986 and 1989. At no time did the rule require notice of entry for the
limitations periods to begin.
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there is a critical difference between the case before us and the situation in Loop.

Loop was before this Court on a second habeas petition, timely filed, on an

ineffective assistance of counsel claim. This Court had jurisdiction when it

remanded Loop back to the trial court for resentencing in order to effectively reset

the limitations period. 3

[¶7.] The State is correct in its assertion that there are two potential

remedies available to Christensen that will allow this Court to consider his petition

on the merits. After dismissal, Christensen may return to the circuit court and seek

to vacate the order quashing the writ. As in Hafner, such action by the circuit court

will allow Christensen thirty-days from entry of the new order quashing the writ to

refile his motion for certificate of probable cause. Hafner v. Leapley, 520 NW2d

252, 253 (SD 1994). 4 If Christensen is denied this remedy he may return to this

Court on a second habeas petition and seek the remedy provided in Loop. However,

3. While we recognize the virtues of the State’s judicial economy argument, this
cannot overcome lack of jurisdiction.

4. In Hafner, this Court held it was proper for the trial court to vacate its
original order and issue a new order quashing the writ in order to restart the
thirty-day statutory time limit. The circuit court held that it was impossible
for Petitioner Hafner to file a motion for certificate of probable cause within
thirty days of the filing of the entry of the order because neither State nor
Petitioner was aware the judgment had been filed until after the expiration of
the thirty days. Pursuant to SDCL 15-6-60(b) the court vacated its original
order and issued a new order quashing the writ. Hafner was then timely
notified by the State of entry of the order. Id. Upon reissuance of the
certificate of probable cause, this Court considered Hafner’s appeal on the
merits. 520 NW2d at 253.

Further, this Court is aware that the one-year statute of limitation for SDCL
15-6-60(b)(1)-(3) may have expired. However, there is no one-year limitation
period for SDCL 15-6-60(b)(6), and as affirmed in Hafner, this is an
appropriate ground upon which to vacate and reissue the order quashing the
writ. Id.
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Christensen is not currently before this Court on a second habeas petition. Our

interpretation of SDCL 21-27-18.1 as jurisdictional deprives this Court of the ability

to waive the untimeliness of the motion or to proceed with the appeal on the merits.

[¶8.] The untimeliness of the motion before the circuit court deprived that

court of jurisdiction to grant a certificate of probable cause. Hannon, 2001 SD 146,

¶8, 638 NW2d 48; Hafner, 520 NW2d at 253. Because the circuit court lacked

jurisdiction, this Court too lacks jurisdiction to consider the issues certified on

appeal.

[¶9.] Dismissed.

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

ZINTER, Justices, concur.

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