(concurring in part and dissenting in part).
[¶ 31] I concur in all respects except that I dissent to Issue V, Multiple convictions and sentences for a single death.
[¶ 32] The majority opinion notes that: “In Wilcox, we held that double homicide convictions for a single death were improper. ‘In the future, we urge prosecutors to charge defendants in cases such as this in alternative counts.’ ” (quoting Wilcox v. Leapley, 488 N.W.2d 654, 657 (S.D.1992)), and then adds “Unfortunately, this directive was not followed in White’s case.”
[¶ 33] I have news for the Supreme Court. Our “directive” to prosecutors will not be followed in the next case either, nor the next. The reason is obvious. We have no teeth in the directive. In fact, the Court continues to condone the prosecutor’s overreaching by permitting the conviction to remain and requires removal of the sentence only. How this court can condone and leave of record an “improper conviction” is beyond my understanding. Obviously, we need to send directives with votes, not just words.
[¶ 34] To malee matters worse, the “State concedes that the trial court improperly convicted and sentenced White to two punishments for a single crime as explained in Wilcox....” When the State, through the Attorney General’s Office, concedes an improper conviction and sentence, we should require that the trial court vacate both. Otherwise, to quote from our Chief Justice, “it’s like punching marshmallows,” and accomplishes nothing.
[¶ 35] As I stated in Wilcox II, at 661, “I may need more lessons in logic but words like ‘disjunctive,’ ‘either,’ and ‘alternative’ imply one or the other but not both,” and as further stated therein: “[we should] reverse and remand to the trial court to vacate one of the homicide convictions and [sentence].”