State v. Kramer

#24660-rev-PER CURIAM
2008 SD 73

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JAMES M. KRAMER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
LYMAN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

LAWRENCE E. LONG
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

WALLY EKLUND of
Johnson, Eklund Law Office Attorneys for defendant
Gregory, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 26, 2008

OPINION FILED 7/23/08
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PER CURIAM

[¶1.] James Kramer was convicted of three separate hunting violations. In

this appeal he challenges the revocation of his hunting privileges contending the

revocation was for a longer period than authorized by law. We agree and reverse.

BACKGROUND

[¶2.] On March 14, 2005, following a court trial before the Honorable Max

Gors, Kramer was convicted of hunting with a revoked license, hunting big game on

highway and public rights of way, and hunting on private land without consent.

The convictions were ordered to be served consecutively and Kramer was sentenced

to 160 days in the county jail. The circuit court also ordered Kramer’s hunting

privileges revoked for a period of one year for each count to run consecutively,

effectively revoking his hunting privileges for three years. No appeal was filed from

this judgment of conviction.

[¶3.] On January 26, 2006, acting pursuant to a motion Kramer filed for a

modification of his sentence, the circuit court (again Judge Gors) ordered that

Kramer would receive credit for the time he had served and the remainder of the

jail sentence would be suspended upon the condition that his hunting privileges

would be revoked for life.

[¶4.] On May 24, 2007, Kramer filed a motion pursuant to SDCL 23A-31-1

(Rule 35) alleging that the January 26, 2006, order revoking his hunting privileges

for life was an illegal sentence as it was in excess of the punishment authorized by

the relevant statutory authority. Additionally, Kramer argued that a revocation

could not exceed one year or be consecutive. This motion was filed with the
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Honorable Judge Lori Wilbur as the result of Judge Gors’ retirement from the

bench.

[¶5.] The circuit court found that the original judgment of conviction which

revoked Kramer’s hunting privileges for three years, based on the consecutive

running of the one-year terms for each conviction, was permissible under SDCL 22-

6-6.1. However, the court found that the lifetime revocation was unauthorized and

constituted an illegal sentence. As a result, the court reinstated the original three

year revocation consisting of the three consecutive one-year terms under the

original judgment of conviction and the jail time remained suspended. An order to

this effect was entered on September 28, 2007. Kramer appeals.

ANALYSIS

ISSUE ONE

[¶6.] Whether this Court has jurisdiction to act in this appeal.

[¶7.] The State argues that this Court is without jurisdiction to hear this

appeal because Kramer failed to timely appeal from the original judgment of

conviction. The State misapprehends the nature of a Rule 35 motion to correct an

illegal sentence. SDCL 23A-31-1 (Rule 35) provides:

A court may correct an illegal sentence at any time and
may correct a sentence imposed in an illegal manner
within the time provided in this section for the reduction
of sentence. A court may reduce a sentence:

(1) Within two years after the sentence is
imposed;

(2) Within one hundred twenty days after
receipt by the court of a remittitur issued
upon affirmance of the judgment or dismissal
of the appeal; or

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(3) Within one hundred twenty days after entry
of any order or judgment of the Supreme
Court denying review of, or having the effect
of upholding, a judgment of conviction;

whichever is later. A court may also reduce a sentence
upon revocation of probation or suspension of sentence as
provided by law. The remedies provided by this section
are not a substitute for nor do they affect any remedies
incident to post-conviction proceedings.

(Emphasis added). A defendant’s motion to correct an illegal sentence does not

permit a challenge to the underlying conviction. See State v. Oscarson, 898 A2d

123, 126 (Vt 2006); State v. Kerrigan, 141 P3d 1054, 1056 (Idaho 2006). Rather, “it

is an attack on the sentence or the sentencing procedure.” Oscarson, 898 A2d at

126. Kramer’s appeal in this matter relates only to the illegality of the sentence

imposed and not to the underlying conviction. Therefore, his failure to timely

appeal his conviction is not jurisdictionally fatal.

[¶8.] In State v. Tibbetts, 333 NW2d 440, 441 (SD 1983), this Court

specifically held that the circuit court’s denial of a request to correct an illegal

sentence under SDCL 23A-31-1 was properly before this Court on appeal and

rejected the State’s contention that the appeal was procedurally improper.

Moreover, this Court has consistently reviewed such requests. See e.g., Application

of Grosh, 415 NW2d 824 (SD 1987); State v. Thomas, 499 NW2d 621 (SD 1993);

State v. Moon, 514 NW2d 705 (SD 1994); State v. Sieler, 1996 SD 114, 554 NW2d

477. See also State v. Steen, 665 NW2d 688, 689-90 (ND 2003)(holding a defendant

has a right to appeal an order from a motion to correct an illegal sentence under

Rule 35). Consequently, Kramer’s sentencing challenge is properly before the Court

and we proceed to the merits.

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ISSUE TWO

[¶9.] Whether the circuit court was authorized to revoke
Kramer’s hunting privileges for three consecutive one-year terms.

[¶10.] Kramer was sentenced for the hunting violations pursuant to SDCL

41-6-74.1 and SDCL 41-9-8. Those statutes provide in relevant part:

41-6-74.1. Offenses causing one-year revocation of
hunting, fishing, or trapping privileges.

At the time of conviction for any one of the following
offenses:

(1) Violation of any game and fish law
punishable as a Class 1 misdemeanor;

(2) Violation of § 41-8-37, 41-9-1.2, 41-8-17
except for a landowner, occupant, or
accompanying guests of the landowner or
occupant on the owner's or occupant's land or
a person employed by the Department of
Game, Fish and Parks in the performance of
the person's duty, or 41-12-12;

(3) Violation of any other statute or rule
pertaining to fishing, hunting, or possessing
game or game fish without a license or
during a closed season; or

(4) Taking or possessing in excess of the
lawful daily or possession limit:

(a) One or two paddlefish;
(b) Two or three turkeys;
(c) Four to six, inclusive, of any one game
fish as regulated other than
paddlefish;
(d) Four to six, inclusive, of any one small
game animal as regulated;

the person's applicable hunting, fishing, or trapping
privileges in South Dakota are automatically revoked
without further hearing for a period of one year following
date of conviction.

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(Emphasis added).

41-9-8. Revocation of license on conviction -
Retrieval of game excepted - Civil remedies of
landowner unaffected.

Any person who knowingly enters or remains on private
property for the purpose of hunting, fishing or trapping,
in violation of § 41-9-1 or 41-9-2, shall lose hunting,
trapping, or fishing privileges for one year following the
conviction. If the person is the holder of a license to hunt,
trap, or fish, the court shall require the license holder to
surrender and deliver the license to the court to be
returned to the Department of Game, Fish and Parks. For
the purpose of this section, the term, guilty, has the same
meaning as the term, conviction, in § 32-12-53.

(Emphasis added). Kramer argues that under the plain terms of these statutes his

hunting privileges could only be suspended for one year following the date of his

convictions and there was no authority for the circuit court to order the revocations

to be served consecutive. We agree.

[¶11.] “Statutory interpretation is a question of law, reviewed de novo.” State

v. Burdick, 2006 SD 23, ¶ 6, 712 NW2d 5, 7. “When the language of a statute is

clear and unambiguous, our only function is to declare the meaning of the statute as

clearly expressed.” Id. (citations omitted). Both of the above sentencing provisions

indicate that loss of hunting privileges for a violation shall occur for a period of one

year following the applicable conviction. There is no mention in the statutory

framework concerning a circuit court’s authority to impose consecutive revocations

of hunting privileges in the event of multiple convictions. Instead, the circuit court

seized upon SDCL 22-6-6.1 to support consecutive revocations. That statute

provides:

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If a defendant is convicted of two or more offenses,
regardless of when the offenses were committed or when
the judgment or sentence is entered, the judgment or
sentence may be that the imprisonment on any of the
offenses or convictions may run concurrently or
consecutively at the discretion of the court.

SDCL 22-6-6.1 (emphasis added). While this statute provides authority for the

circuit court to order consecutive terms of imprisonment, which we note the court

ordered here and is not disputed, it cannot be interpreted to support an order of

consecutive revocations of hunting privileges. See State v. Flittie, 318 NW2d 346,

349 (SD 1982); State v. Arguello, 1996 SD 57, ¶ 7, 548 NW2d 463, 464 (recognizing

the purpose of SDCL 22-6-6.1 is to limit a court’s power to impose consecutive

sentences to situations described in the statute). By its plain terms, SDCL 22-6-6.1

only authorizes consecutive sentences for terms of “imprisonment” and a revocation

of hunting privileges does not constitute “imprisonment” under its plain and

ordinary meaning. “This Court will not enlarge a statute beyond its face where the

statutory terms are clear and unambiguous in meaning.” Arguello, 1996 SD 57, ¶ 7,

548 NW2d at 464.

[¶12.] “Illegal sentences are essentially only those which exceed the relevant

statutory maximum limits or violate double jeopardy or are ambiguous or internally

inconsistent.” Sieler, 1996 SD 114, ¶ 7, 554 NW2d at 480; see also State v.

Schwebach, 2000 SD 50, 609 NW2d 130 (holding the circuit court exceeded the

statutory authority in revoking defendant’s driving privileges for life when the

maximum statutory period for revocation was two years). The portion of Kramer’s

sentence that revoked his hunting privileges for three years based on consecutive

one-year terms was unauthorized under the statutory framework. No matter what

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purpose or public benefit the circuit court considered in revoking Kramer’s hunting

privileges for three years, the court cannot exceed the sentence authorized by law.

Revocation of hunting privileges in this matter should have been for one year from

the date of convictions as provided by SDCL 41-6-74.1 and SDCL 41-9-8.

[¶13.] Accordingly, we reverse the circuit court’s denial of the Rule 35 motion

to correct an illegal sentence and remand with instructions for the court to modify

the sentence consistent with this opinion.

[¶14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER

and MEIERHENRY, Justices, participating.

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