(dissenting).
The majority opinion states:
SDCL 23A-25-13 does not express any requirement that a defendant have previously entered a plea of “mental illness” to be entitled to a special verdict instruction. Further, it uses mandatory language, stating the court shall provide a guilty but mentally ill verdict form if a defense of mental illness has been presented at trial.
The opinion states “insanity” and “mental illness” are “used in parity in SDCL 23A-25-13” so the mental illness statutes should be “interpreted in consonance” with the insanity statutes, thereby requiring “mental illness” to be pleaded before it can be used as a defense.
“A statute must be construed according to its intent, which must be determined from the statute as a whole, as well as enactments relating to the same subject.” State v. Wolff, 438 N.W.2d 199, 200-201 (S.D.1989). However, the majority opinion fails to cite SDCL 23A-27-38, which provides in part:
If a defendant is found “guilty but mentally ill” or enters that plea and the plea is accepted by the court, the court shall impose any sentence which could'be imposed upon a defendant pleading or found guilty of the same eharge[.]
(Emphasis added). The disjunctive “or” indicates that a defendant could be found “guilty but mentally ill” by a jury without first entering that plea. This directly conflicts with the majority opinion’s conclusion that a defendant is required to enter a plea of mental illness in order to be entitled to submit a guilty but mentally ill instruction to the jury.
By enacting South Dakota’s [guilty but mentally ill] statutes, our legislature intended to provide an alternative verdict available to a jury to reduce the number of offenders who were erroneously found not guilty by reason of insanity.
Robinson v. Solem, 432 N.W.2d 246, 248 (S.D.1988) (emphasis added). Neither the legislation nor the legislative history indicate that the defense must be pled first as a guilty plea.
The plea required for “insanity” should not be required for “mental illness.” Insanity constitutes a “not guilty” plea while mental illness is a “guilty” plea. If a defendant entered a guilty but mentally ill plea first, there would not even be a trial. Statutes are to be interpreted so that they are “harmonious and workable” with one another. Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992) (modified on other grounds by Sjolund v. Carlson, 511 N.W.2d 818, 822 (S.D.1994)). Here, the interpretation which makes SDCL 23A-27-38 and SDCL 23A-25-13 “harmonious and workable” is one that does not require a guilty but" mentally ill plea as a condition precedent to jury instructions. In fact, the majority opinion states “[w]e conclude a defendant who wishes to plead not guilty and assert ‘mental illness’ must enter a plea of ‘not guilty but mentally ill[.]’ ” In doing so, the majority is creating an entirely new plea for criminal cases in South Dakota contrary to those prescribed by the Legislature in SDCL 23A-7-2.*
I agree with the majority that, for future cases, some form of “adequate foundation and formal notice” be made before trial and before the requested jury instructions are given. This defendant should be entitled to the same courtesy and notice by this cowrie especially where, as here, he claims the state was provided “ample notice” of his mental illness defense through pre-trial discovery. To require a guilty but mentally ill plea first does not comport with state law in light of SDCL 23A-27-38.
SDCL 23A-7-2 provides in part:
A defendant may plead:
(1) Not guilty;
(2) Not guilty and not guilty by reason of insanity;
(3) Guilty;
(4) Nolo contendere; or
(5) Guilty but mentally ill[.]