(concurring).
In joining this opinion, the reader should note the difference between Petition of Brockmueller, 374 N.W.2d 135 (S.D.1985), and this case.
Broekmueller’s first two DUI convictions were ruled void and vacated due to Honomichl v. State, 333 N.W.2d 797 (S.D.1983), a decision handed down after Brockmueller’s third DUI conviction, which was enhanced to a Class 6 felony. Once the first two convictions were erased, Brockmueller had only one DUI conviction to his name, but was still being punished as if it was his third conviction. Because the recent conviction was valid and the statutory time to correct an illegal sentence had since passed, a writ of coram nobis was the only remedy available to eliminate the enhanced sentence.
Instanter, Davis moved to dismiss the second degree burglary charge, citing Matter of T.J.E., 426 N.W.2d 23 (S.D.1988), because she had not “unlawfully” remained at the residence for purposes of committing theft. She now seeks the writ based on State v. Oster, 495 N.W.2d 305 (S.D.1993), a decision handed down after her conviction.
True, Davis could not have utilized Oster at her trial; however, Oster completely relied on T.J.E., a legal precedent which Davis did utilize. The release of Oster is not a parallel to the release of Honomichl. As noted by the majority opinion, other remedies were available to Davis, including a direct appeal. Not so for Brockmueller. Coram nobis “exists to afford a remedy against injustice— when no other remedy is available.” Brockmueller, 374 N.W.2d at 139 (Henderson, J., concurring specially). “Coram nobis cannot be invoked simply to relitigate the original case. It is not an instrument of appeal.” Petition of Nilles, 412 N.W.2d 116, 119 (S.D.1987) (Henderson, J., specially concurring). Hence, I am in complete agreement with the majority writing.