(concurring specially).
[¶ 34.] Although I concur with the majority, I feel compelled to write specially to point out the despicable conduct of the Defendant and to emphasize the unfortunate tactical decisions by the prosecution.
[¶ 35.] Quinn was aware of Pennington County’s indigent burial guidelines. He indicated his agreement to follow them by accepting the $950 fee. Then, after receiving payment from the county, Quinn improperly proceeded to attempt to collect the full burial fee from the poor, elderly, indigent widow. The bill Quinn sent to her was especially misleading because it did not give credit for or even indicate that he had already received $950 from Pennington County!
[¶ 36.] The record of a pre-trial hearing, and the sentencing hearing, tell us some other damning evidence that I simply cannot ignore (although for some strange reason the prosecution failed or neglected to include it in the stipulation of facts). Incredibly, sometime after the burial, and even after Quinn received the county payment, he became aware of the fact that the widow had inadvertently found money from her deceased husband’s carpenter’s union, which she intended to use to reimburse the county for its payment of the funeral expenses. However, before she could do so, Quinn confronted her and told her that if the county discovered she had the money she would go to jail. He further told her that if she did not use the extra funds to pay him she would be “going to prison.” What a guy! Shame on you Mr. Quinn! What reputable person would use such misrepresentations to threaten an elderly, recently widowed, lady with prison? One can surely understand then, why this poor widow paid Quinn over $1,500 without knowing she had no obligation to do so. This reprehensible “business” practice, sounding like something out of a Dickens novel, is contemptible and outrageous and should be recognized as such.
[¶ 37.] Quinn used his business relationship with a grieving widow to compound an already difficult and painful situ*42ation. I suggest it was pure greed. His conduct in preying on the emotional situation of this poor woman, who had recently lost her husband to Alzheimer’s disease, compels me to write specially.
[¶ 38.] In addition to Quinn’s despicable conduct, I also write to note the prosecution’s unusual handling of the case. It is incomprehensible to me why the prosecutor failed to include the conduct described above in the stipulated facts as support for the theft by deception charge.
[¶ 39.] Then, at oral argument, State’s counsel made the unusual admission that the entire criminal case rested on the validity of the guidelines. I am not so willing to agree to that position, but such a concession is binding on the state.
[¶ 40.] What an unfortunate situation is presented to us. The county did not properly formalize its guidelines and prosecuto-rial authorities seemingly made significant errors of judgment. Thus, the law mandates that we may not affirm the conviction and the punishment Quinn so obviously deserves. However, we are a court of law and follow the law we must. It is most difficult when presented with this defendant’s obvious greed and his willingness to misrepresent the truth for his own personal financial gain.
APPENDIX 1
STATE OF SOUTH DAKOTA COUNTY OF PENNINGTON STATE OF SOUTH DAKOTA Plaintiff, vs. CARSON J. QUINN, Defendant.
IN CIRCUIT COURT SEVENTH JUDICIAL CIRCUIT
Crim. Nos. 98-4227 and 99-1703
STIPULATION
The parties hereby enter into the following stipulation for the purpose of presenting this case to the Circuit Court for a determination of guilt or acquittal based on stipulated facts and to set forth their additional related agreements as follows:
1. The parties stipulate that the Circuit Court may enter a finding of guilt or acquittal as to Count 1 of the Indictment dated January 28, 1999 and Count 4 of the Indictment dated May 27, 1999 only based on the law and the stipulated facts set forth herein;
2. The parties stipulate to the following facts as related to said Counts:
A. Defendant received indigent burial assistance payment from Pennington County for said funerals in the amount of;
Leonesio funeral $950.00;
Horned Antelope funeral $950.00.
B. Defendant submitted bills for payment to Pennington County, copies of which are attached as Exhibits A and B;
C. Defendant submitted a funeral statement to Leonesio and Horned Antelope for monies in excess of the county burial payment and received monies over and above said amount which were not paid over to Pennington County, as shown by attached Exhibits C and D.
D. Defendant at the time of the events alleged in said Counts had received a copy of the Pennington County Burial Assistance Guidelines, attached Exhibit E;
E. The stipulation attached as Exhibit F regarding the Pennington County Indigent Burial Guidelines is true and correct and is incorporated herein as part of the factual showing before the Court;
F. At no time did Pennington County have a written contract with Campbell Paula Quinn Funeral Home.
3.In the event of a finding by the Court on an issue of law appealable as a *43matter of right by the State which would result in a judgment of acquittal, the State shall be afforded an opportunity to request a stay for the purposes of appeal prior to the entry of a judgment of acquittal;
4. Upon presentation of this signed Stipulation to the Court, Defendant agrees to pay to the State the sum of $21,610.61 as restitution which sum is paid without admission of guilt and which sum will not be refunded regardless of whether the case ultimately ends up as a conviction or acquittal;
5. That upon the presentation of this executed Stipulation to the Court, the State shall at the same time dismiss with prejudice all of the remaining Counts of the Indictments and agrees not to bring any similar or like charges against Defendant arising out of any indigent burial up to and including the date of Stipulation;
Dated this _9_ day of November, 1999.
STATE OF SOUTH DAKOTA
BY :/s/Timothy Barlett Timothy Barlett Asst. Attorney General
CARSON J. QUINN
BY:/s/Edward C. Carpenter Edward C. Carpenter and Ronald W. Banks Attorneys for Carson J. Quinn