Roseland v. State

FOSHEIM, Chief Justice

(dissenting).

The majority opinion correctly notes that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), mandates that a guilty plea cannot stand “unless the record in some manner indicates a voluntary and intelligent waiver of the constitutional rights of privilege against self-incrimination, confrontation of one's accusers, and jury trial, as well as an understanding of the nature and consequences of the guilty plea.” We applied Boykin in Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198, 201 (1970) with this caveat:

South Dakota judges can no longer assume that an accused represented by counsel has been informed of such matters and the judge must actively participate by ‘canvassing the matter with the accused’. A silent record is not sufficient.

The term “jury trial” means “the full constitutional right of a ‘speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.’ ” Croan v. State, 295 N.W.2d 728, 730 (S.D.1980); State v. Sutton, 317 N.W.2d 414 (S.D.1982). That meaning is required by the United States Constitution, Amendment 6,1 by the South Dakota Constitution, Article VI, § 72 and by SDCL 23A-16-3.3 The trial judge not only must so advise the accused, at the risk of denial of due process, State v. Jameson, 71 S.D. 144, 22 N.W.2d 731 (1946), but must additionally canvass the matter with the accused to make certain he understands. The majority also correctly notes that the advising procedure should not be a catechistic incantation. In Nachtigail, we quoted from In Re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969), that Boykin did not require the recitation of a formula by rote but that the record on its face must contain “direct evidence that the accused was aware, or made aware, of his right- .to confrontation, to a •jury trial, and against self-incrimination, "as well as the nature of the charge and the consequences of his plea. Each must be enumerated and responses elicited from the person of the defendant.”' Nachtigail, 178 N.W.2d at 201.

The trial court did advise defendant of his right to a jury trial by an unbiased jury, but the record is totally silent on its face that this meant a speedy public trial by an impartial jury of the county in which the offense was alleged to have been committed. It, of course, follows that the court also failed to canvass the matter with defendant to make certain he understood this fundamental constitutional right. Accordingly, we should reverse the order.

I am hereby authorized to state that Justice HENDERSON joins in this dissent.

. U.S. Const.Amend. VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

. S.D. Const, art. VI, § 7: In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed,

SDCL 23A-16-3: The accused has the right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.