(specially concurring).
Wilcox’s lawyers failed to (1) urge double jeopardy at the trial court level (2) assert double jeopardy in the appeal to the Supreme Court of this state (3) advocate, by way of a petition for rehearing, that the double homicide convictions should be set aside. This, notwithstanding a sua sponte dissent of Justice Sabers.
Wilcox, through new counsel, now uses the writ of habeas corpus to assert a defense that was never urged before this Court. We approve of this collateral attack by our decision today. If there was ever a “back door approach” in defending a case, we have an epitome of such an approach, before us. For contrary holdings and authority (where defendant failed to urge constitutional arguments) see, State v. Janssen, 371 N.W.2d 353, 356 (S.D.1985) and United States v. Herzog, 644 F.2d 713, 716 (8th Cir.1981). This includes double jeopardy, see, 1 C.Wright, Federal Practice and Procedure; Criminal, § 193 at 706-06 (2d ed. 1982).
I concur that this Court should continue to hold that both convictions were supported by the evidence; in point of fact, that precise issue, on both convictions, was treated fairly and fully in Wilcox I. I likewise concur for a resentencing on the murder conviction, continuing to believe that Wilcox perpetrated a heinous murder upon a defenseless girl. He literally beat her to death. Wilcox knowingly waived his right to take the stand. United States v. Bemloehr, 833 F.2d 749, 752 (8th Cir.1987). Constitutional rights can be waived. Her-zog, supra. Here, he suffered no prejudice whatsoever because the testimony evidence was overwhelming that his acts of savagery caused the death of this little girl. There is no reasonable probability that the result of the proceedings would have been different had Wilcox taken the stand. Here, victim identified Wilcox as her assailant. It is preposterous for this man to now claim that his lawyer’s advise caused him to be convicted. He wants to invalidate his trial because he did not take the stand. Is not Sheena Johnson entitled to justice? The law should work for her, not just as Wilcox would have us.
Lastly, I support the remand for sentencing based upon our writing and the authorities contained therein per State v. Shil-vock-Havird, 472 N.W.2d 773 (S.D.1991).