State v. Garza

#26807-a-DG

2014 S.D. 67

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JOSE ANGEL GARZA, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

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THE HONORABLE BRADLEY G. ZELL
Judge

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MARTY J. JACKLEY
Attorney General

BETHANY L. ERICKSON
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

CHERI SCHARFFENBERG
Olson, Waltner & Scharffenberg, LLP
Tea, South Dakota Attorneys for defendant
and appellant.

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CONSIDERED ON BRIEFS
ON APRIL 28, 2014
OPINION FILED 09/24/14
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GILBERTSON, Chief Justice

[¶1.] Defendant Jose Garza was convicted of first-degree arson and first-

degree felony murder in a single trial for intentionally setting fire to an occupied

structure and the resulting death of an unidentified victim in the fire. Arson served

as the underlying felony to support the felony murder charge. Garza was given

concurrent life sentences without parole for each conviction. The circuit court

denied Garza’s motion to correct an illegal sentence, rejecting his claim that the

concurrent sentences violated the Double Jeopardy Clause. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶2.] The underlying facts of this case were described in State v. Garza, 1997

S.D. 54, ¶¶ 2-4, 563 N.W.2d 406:

At approximately 9:00 a.m. on the morning of February 24,
1995, Jose Sanchez (Sanchez) hosted a party at his apartment
located at 231 South Spring in Sioux Falls, South Dakota.
Throughout the morning and early afternoon hours, a large
amount of alcohol was consumed by the occupants and guests.
Garza arrived at Sanchez’ apartment around 4:00 p.m. and
found the majority of the participants intoxicated. Garza
consumed alcohol with the other guests after his arrival.

Later, Ansellmo Montinegro (Montinegro) and Garza had an
altercation. After Montinegro broke the strings of a guitar,
Garza grabbed it and broke it further. Another participant at
the party attempted to stop Garza and a further altercation
ensued. Next, the evidence showed that Garza went to the
stove, turned on the gas, lit all four burners, and threatened he
could burn down the house. Also, Garza was observed putting
his lighter up to the fuse box in the apartment, but the fuse box
door was closed by another person at the party to deter this act.

At approximately 9:30 p.m., Garza left the party. Garza was
later identified as having purchased forty-five cents worth of
gasoline at a nearby 7-11 store at 11:00 p.m. Within twenty
minutes of his purchase, the apartment building at 231 South
Spring was on fire. All of the occupants escaped the burning

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building, except for John Doe, who died of carboxyhemoglobin
poisoning.

[¶3.] The State charged Garza with one count of first-degree felony murder,

with arson as the underlying felony, and one count of first-degree arson. SDCL 22-

16-4 (1995); SDCL 22-33-1 (1995). The jury found Garza guilty of both offenses, and

he received a life sentence without parole for each. Garza raised four issues on

direct appeal, but did not challenge his sentence as violating the Double Jeopardy

Clause. Garza, 1997 S.D. 54, ¶ 5, 563 N.W.2d at 408. This Court affirmed his

conviction on all issues raised on direct appeal. Id. ¶ 35, 563 N.W.2d at 413. In

November of 2011, Garza filed a motion to correct illegal sentence, alleging that the

imposition of sentences for both felony murder and arson violated the Double

Jeopardy Clause. The trial court issued an order denying the motion. Garza filed a

timely appeal to this Court, alleging that the trial court erred in denying his motion

to correct illegal sentence.

ANALYSIS AND DECISION

[¶4.] 1. Whether this Court has jurisdiction over an appeal from an order
denying a motion to correct illegal sentence.

[¶5.] As an initial matter, the State argues that this Court does not have

jurisdiction over this matter because SDCL 23A-32-2 gives a defendant the right to

appeal only from a final judgment of conviction. We squarely rejected this same

argument in State v. Kramer and held that challenges to a trial court’s order

granting or denying a motion to correct an illegal sentence under SDCL 23A-31-1

(Rule 35) may properly come before this Court on appeal. 2008 S.D. 73, ¶¶ 7-8, 754

N.W.2d 655, 657. See also State v. Tibbetts, 333 N.W.2d 440, 441 (S.D. 1983)

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(allowing appeal of circuit court’s denial of a request to correct an illegal sentence

under SDCL 23A-31-1). As we noted in Kramer, this Court has consistently

reviewed these challenges to the legality of a sentence. 2008 S.D. 73, ¶ 8, 754

N.W.2d at 657 (citing State v. Sieler, 1996 S.D. 114, 554 N.W.2d 477; State v. Moon,

514 N.W.2d 705 (S.D. 1994); State v. Thomas, 499 N.W.2d 621 (S.D. 1993); In re

Application of Grosh, 415 N.W.2d 824 (S.D. 1987)). Accordingly, we reject the

State’s argument that we should decline to consider Garza’s appeal.

[¶6.] However, Garza asserts that the proper remedy in this case would be

to vacate both the conviction and sentence for first-degree arson, leaving the

conviction for first-degree felony murder intact. South Dakota law authorizes a

court to provide a more limited remedy. SDCL 23A-31-1 (Rule 35). Under that

rule, a court may “correct an illegal sentence at any time,” but not an improper

conviction. Id. (emphasis added). See also Kramer, 2008 S.D. 73, ¶ 7, 754 N.W.2d

at 657 (“A defendant’s motion to correct an illegal sentence does not permit a

challenge to the underlying conviction.”). 1 Garza’s challenge to the underlying

conviction is not cognizable under the procedural mechanism used in this case.

Accordingly, our review is limited to whether the sentence in this case was illegal

and should be vacated.

[¶7.] 2. Whether imposition of sentences for felony murder and the
underlying felony of arson violates the constitutional prohibition
against double jeopardy.

1. This is distinguishable from a timely direct appeal from a conviction, where a
party raising double jeopardy concerns may properly challenge both the
underlying conviction and the sentence imposed. See State v. Dillon, 2001
S.D. 97, ¶ 22, 632 N.W.2d 37, 46; State v. Well, 2000 S.D. 156, ¶ 25, 620
N.W.2d 192, 197.

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[¶8.] Garza argues that the South Dakota Legislature did not intend to

authorize multiple punishments for the single act of burning a building.

Specifically, he argues that the Legislature intended arson and felony murder to be

treated and punished as a single offense. Garza contends that “the murder charge

is really ‘aggravated arson’—arson plus a resulting death.” Consequently, he

asserts that imposing multiple punishments for his single act violated the Double

Jeopardy Clause. We disagree.

[¶9.] Because Garza alleges constitutional violations, raising issues of

legislative intent and statutory interpretation, we review his claims under the de

novo standard. State v. Long Fox, 2013 S.D. 40, ¶ 11, 832 N.W.2d 55, 58; Kramer,

2008 S.D. 73, ¶ 11, 754 N.W.2d at 658.

[¶10.] The double jeopardy prohibition in the Fifth Amendment to the United

States Constitution, and Article VI, Section 9, of the South Dakota Constitution,

“protect[s] against three types of governmental abuses: (1) a second prosecution for

the same offense after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense.” State v. Johnson,

2007 S.D. 86, ¶ 12, 739 N.W.2d 1, 6 (quoting State v. Lafferty, 2006 S.D. 50, ¶ 4, 716

N.W.2d 782, 784). See also Jones v. Thomas, 491 U.S. 376, 380-81, 109 S. Ct. 2522,

2525, 105 L. Ed. 2d 322 (1989). In the first two contexts—a second prosecution

subsequent to acquittal or conviction—the United States Supreme Court has

consistently found a violation of the Double Jeopardy Clause unless each of the

charged offenses “requires proof of a fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932) (citing

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Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 422, 55 L. Ed. 489

(1911)). If such proof is required, then the single act may be an offense against two

statutes and “an acquittal or conviction under either statute does not exempt the

defendant from prosecution and punishment under the other.” Id. (quoting Morey v.

Commonwealth, 108 Mass. 433, 434 (Mass. 1871)).

[¶11.] The analysis is different, however, in the context of multiple

punishments for the same criminal act. When “it is not contended that [a

defendant’s] right to be free from multiple trials for the same offense has been

violated[,]” but rather where cumulative sentences are imposed in a single trial,

“the Double Jeopardy Clause does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.” Missouri v. Hunter,

459 U.S. 359, 365-66, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983). Accordingly,

“[t]he question of what punishments are constitutionally permissible is no different

from the question of what punishments the Legislative Branch intended to be

imposed.” Id. at 368, 103 S. Ct. at 679 (quoting Albernaz v. United States, 450 U.S.

333, 344, 101 S. Ct. 1137, 1145, 67 L. Ed. 2d 275 (1981)); State v. Simons, 313

N.W.2d 465, 467 (S.D. 1981) (quoting Albernaz, 450 U.S. at 344, 101 S. Ct. at 1145).

While a question of multiple prosecutions, then, is a constitutional question that

must be resolved according to the Blockburger test, the determination of whether

the same criminal act can be punished under two separate statutes in one trial is a

question of state law to be determined in state courts. See Hunter, 459 U.S. at 368,

103 S. Ct. at 679 (citing O’Brien v. Skinner, 414 U.S. 524, 531, 94 S. Ct. 740, 743, 38

L. Ed. 2d 702 (1974)) (acknowledging that the United States Supreme Court was

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bound by the Missouri Supreme Court’s conclusion that Missouri statutes

authorized multiple punishments for one criminal act). Thus, the primary issue

before this Court is whether the South Dakota Legislature intended first-degree

arson and felony murder to be separately punishable offenses, not whether they

constitute the same offense under the federal formulation of the Blockburger test.

[¶12.] We have an “[e]stablished double jeopardy jurisprudence[, which]

confirms that the Legislature may impose multiple punishments for the same

conduct without violating the Double Jeopardy Clause if it clearly expresses its

intent to do so.” State v. Deneui, 2009 S.D. 99, ¶ 65, 775 N.W.2d 221, 247 (quoting

State v. Dillon, 2001 S.D. 97, ¶ 13, 632 N.W.2d 37, 43). “The true intent of the

legislature is ascertained primarily from the language of the statute.” Johnson,

2007 S.D. 86, ¶ 13, 739 N.W.2d at 6 (quoting Lafferty, 2006 S.D. 50, ¶ 6, 716 N.W.2d

at 784). At the time of Garza’s conviction, South Dakota’s felony murder statute

provided in pertinent part:

Homicide is murder in the first degree when perpetrated
without authority of law and with a premeditated design to
effect the death of the person killed or of any other human being,
or when committed by a person engaged in the perpetration of,
or attempt to perpetrate, any arson, rape, robbery, burglary,
kidnapping, or unlawful throwing, placing, or discharging of a
destructive device or explosive.

SDCL 22-16-4 (1995). South Dakota’s first-degree arson statute provided:

Any person who intentionally sets fire to or burns or causes to be
burned any occupied structure, knowing the same to be occupied
at the time, is guilty of arson in the first degree. Arson in the
first degree is a Class 1 felony.

SDCL 22-33-1 (1995). Although the Legislature has authorized the imposition of

either concurrent or consecutive sentences when a defendant is convicted of two or

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more offenses, SDCL 22-6-6.1, we are unable to find any expressly stated legislative

intent to support the imposition of multiple penalties.

[¶13.] However, a “second inquiry follows when legislative intent to impose

multiple punishments is uncertain.” Dillon, 2001 S.D. 97, ¶ 18, 632 N.W.2d at 45.

In discerning legislative intent, “we employ the Blockburger analysis.” Id.

Accordingly, we ask “whether each provision requires proof of an additional fact

which the other does not.” Deneui, 2009 S.D. 99, ¶ 65, 775 N.W.2d at 248 (quoting

Dillon, 2001 S.D. 97, ¶ 13, 632 N.W.2d at 43). “[T]wo offenses may be said to have

occurred only if each statute requires proof of an additional fact which the other

does not.” State v. Hoffman, 430 N.W.2d 910, 911 (S.D. 1988). See also Johnson,

2007 S.D. 86, ¶ 16, 739 N.W.2d at 7; State v. Weaver, 2002 S.D. 76, ¶¶ 10-19, 648

N.W.2d 355, 359-63; Dillon, 2001 S.D. 97, ¶ 14, 632 N.W.2d at 43; State v.

Augustine, 2000 S.D. 93, ¶¶ 13-24, 614 N.W.2d 796, 798-99; State v. Darby, 1996

S.D. 127, ¶ 16, 556 N.W.2d 311, 317. Although we commonly refer to this analysis

as the Blockburger test, in reference to its application by the United States

Supreme Court, see Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 2 this usage can

be misleading. In utilizing the Blockburger test to ascertain the intent behind

2. Our use of the Blockburger test in multiple-prosecution double jeopardy
analysis actually predates the Blockburger decision. See State v. Caddy, 15
S.D. 167, 87 N.W. 927, 928 (1901) (quoting Morey, 108 Mass. at 434) (“A
single act may be an offense against two statutes, and, if each statute
requires proof of an additional fact which the other does not, an acquittal or
conviction under either statute does not exempt the defendant from
prosecution and punishment under the other.”). See also State v. Seidschlaw,
304 N.W.2d 102, 106-07 (S.D. 1981) (noting that the United States Supreme
Court’s Blockburger decision adopted a “similar test” to ours to determine
whether there were two distinct offenses).

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South Dakota law, we part ways with the federal analysis to the extent that we

examine “only the statutory elements comprising the offenses without regard to how

the offenses were charged, how the jury was instructed, or how the underlying proof

for the necessary elements was established.” Dillon, 2001 S.D. 97, ¶ 18, 632 N.W.2d

at 45. In other words, while our Blockburger “formula” is the same, the “variables”

we feed into that formula differ slightly from the federal application. 3 Thus, while a

federal application of Blockburger might lead us to conclude that two South Dakota

statutes punish the same offense for the purpose of determining the

constitutionality of subsequent prosecutions, South Dakota’s application of

Blockburger, under the same facts, might lead us to conclude that the two statutes

were meant to punish different offenses for the purpose of determining whether

punishment under both statutes exceeds the degree of punishment intended by the

South Dakota Legislature.

[¶14.] According to our application of the Blockburger test in this case, and

for the purpose of ascertaining the intent behind South Dakota law, the plain

language of the statutes reveals that each statutory offense requires proof of an

element not required to establish a violation of the other. It is possible to commit a

felony murder without committing a first-degree arson and vice versa. 4 First-

3. The special writing argues that “[i]t is not possible to prove felony murder
under SDCL 22-16-4 without also proving arson under SDCL 22-33-1.” Yet,
we held in Dillon that we examine “only the statutory elements comprising
the offenses without regard to how the offenses were charged[.]” 2001 S.D. 97,
¶ 18, 632 N.W.2d at 45 (emphasis added).

4. The special writing disagrees with this statement, arguing that the United
States Supreme Court has “consistently treated the conviction of a predicate
(continued . . .)
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degree felony murder requires the State to prove that the death of an individual

occurred, an element not required to prove first-degree arson. First-degree arson

requires the burning of an occupied structure, which is not a required element of

felony murder. First-degree felony murder does not necessarily require proof of the

burning of an occupied structure because first-degree felony murder can instead be

proven with any of a number of enumerated completed or attempted crimes. SDCL

22-16-4 (1995). In other words, because arson is sufficient to serve as the predicate

felony to felony murder, but is not necessary, it cannot be said that the burning of

an occupied structure is a requirement of felony murder. See Simons, 313 N.W.2d at

467-68 (noting, in a prosecution charging both murder and the commission of a

felony while armed for the shooting death of the victim, that “[w]hile the use of a

firearm was necessarily alleged in the information, it is not an element of the

statutory offense of murder because a homicide can be perpetrated by myriad

means”). Accordingly, Garza’s challenge fails under our application of the

Blockburger test, because each offense necessitates “proof of an additional fact

which the other does not.” Dillon, 2001 S.D. 97, ¶ 14, 632 N.W.2d at 43. Contrary

to Garza’s position, first-degree arson is not a necessarily included lesser offense of

felony murder. As we quoted in Johnson, “[A]lthough the two statutes may be

________________________
(. . . continued)
felony for felony murder and a conviction of the felony murder charge itself as
the same offense under the Double Jeopardy Clause.” However, both cases
cited in support of this view involve multiple prosecutions rather than
multiple punishments. As discussed above, the question of whether multiple
punishments conform to the requirements of the Double Jeopardy Clause
turns not on the federal application of the Blockburger test, but rather on the
discernment of state legislative intent through state rules of construction.

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violated together, they are not necessarily violated together.” 2007 S.D. 86, ¶ 18,

739 N.W.2d at 8 (quoting State v. Armendariz, 141 P.3d 526, 533-44 (N.M. 2006)).

[¶15.] Garza argues that, under the United States Supreme Court’s decision

in United States v. Whalen, we should conclude that multiple punishments in this

case would violate double jeopardy. 445 U.S. 684, 691-92, 100 S. Ct. 1432, 1437-38,

63 L. Ed. 2d 715 (1980). In Whalen, the defendant was convicted of rape and felony

murder with rape as the underlying felony. The Supreme Court, interpreting a

District of Columbia felony-murder statute similar to South Dakota’s, concluded

that a felony murder in that case could not be proven without proving all the

elements of rape, and therefore each statutory offense did not require the proof of a

fact which the other did not. Id. at 693-94. The Supreme Court rejected the

government’s argument that not all felony murders required proof of a rape, and

therefore the crimes could be charged as separate offenses with separate

punishments. Id. Therefore, the Blockburger test was not met and the imposition

of multiple punishments violated double jeopardy. Id.

[¶16.] Garza argues that this Court should come to the same result as

Whalen. 5 Although Whalen presented the United States Supreme Court with a

similar statutory scheme to the one challenged in this case, we decline to apply the

holding of Whalen. First we point out that, as a federal enclave, the laws of the

District of Columbia derive from acts of Congress and are inherently federal in

5. We note that the Whalen decision was barely one and one-half years old when
we rejected its approach of examining the indictment, rather than the
statutory text. Thus, we have never followed Whalen. See Simons, 313
N.W.2d at 467-68.

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nature. Consequently, the Supreme Court determined that Congress intended the

“rule of statutory construction stated by [the Supreme Court] in Blockburger v.

United States” to apply when determining whether two statutes punish the same

offense in the District of Columbia. Whalen, 445 U.S. at 691, 100 S. Ct. at 1437.

Second, and in contrast, we again note that questions of legislative intent are left to

the determination of state courts. Hunter, 459 U.S. at 368, 103 S. Ct. at 679. See

also Whalen, 445 U.S. at 687-88, 100 S. Ct. at 1435 (recognizing that the United

States Supreme Court is “barred from reviewing a state court’s interpretation of a

state statute”). Thus, we are not bound by the United States Supreme Court’s

application of Blockburger to the District of Columbia statutes. See id. (noting that

the Supreme Court had “utilized [the Blockburger] rule only to limit a federal

court’s power to impose convictions and punishments when the will of Congress is

not clear” (emphasis added)). Looking to this Court’s application of Blockburger, we

conclude that the Whalen analysis is not in line with our precedent of interpreting

statutes for double jeopardy purposes.

[¶17.] Whalen departed from an abstract approach of applying the

Blockburger test to the statutory elements and instead applied the test to how the

crimes were actually charged. 445 U.S. at 694, 100 S. Ct. at 1439 (“In the present

case, however, proof of rape is a necessary element of proof of the felony

murder . . . .”). See also id. at 711-12, 100 S. Ct. at 1448 (Rehnquist, J., dissenting)

(noting that the majority opinion “chooses instead to apply the test to the

indictment”). As indicated above, this Court has clearly stated that, when applying

the Blockburger test to ascertain legislative intent, we do not consider how the

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offenses were proven at trial. Dillon, 2001 S.D. 97, ¶ 18, 632 N.W.2d at 44-45. See

also Johnson, 2007 S.D. 86, ¶ 17, 739 N.W.2d at 7 (applying Blockburger to statutes

in the abstract). “The test is whether the same act or transaction may constitute

two distinct offenses if each offense as defined by statute requires the proof of some

fact or element not required to establish the other.” Augustine, 2000 S.D. 93, ¶ 13,

614 N.W.2d at 798 (emphasis added) (quoting Seidschlaw, 304 N.W.2d at 106)

(internal quotation marks omitted).

[¶18.] Our primary focus when determining legislative intent is on the

language used in the statute. See, e.g., Lafferty, 2006 S.D. 50, ¶ 6, 716 N.W.2d at

784 (citing State v. Bordeaux, 2006 S.D. 12, ¶ 8, 710 N.W.2d 169, 172) (“The true

intent of the Legislature is ascertained primarily from the language of the

statute.”). Our traditional application of the Blockburger test leads to a consistent

interpretation of legislative intent that keeps the statutory language creating the

offenses at the forefront of the analysis, rather than focusing on how the offenses

were charged in a particular case. We see no compelling reason to abandon this

approach. As the Michigan Supreme Court noted:

[W]e must not lose sight of the fact that the Blockburger test is a
tool to be used to ascertain legislative intent. Missouri v.
Hunter, 459 U.S. 359, 368, 103 S. Ct. 673, 74 L. Ed. 2d 535
(1983). Because the statutory elements, not the particular facts
of the case, are indicative of legislative intent, the focus must be
on these statutory elements.

People v. Ream, 750 N.W.2d 536, 545 (Mich. 2008) (rejecting double jeopardy claim

where the defendant was convicted of both felony murder and the predicate felony

of criminal sexual conduct). We therefore decline Garza’s request to apply Whalen’s

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conclusion that felony murder and the underlying felony are the same offense,

under South Dakota law, for the purpose of imposing multiple punishments.

[¶19.] The conclusion that the Legislature intended felony murder and arson

to be separate offenses is reinforced by the separate evils addressed by the homicide

and arson statutes in South Dakota. “Statutes that are ‘directed toward protecting

different social norms and achieving different policies can be viewed as separate

and amenable to multiple punishments.’” Johnson, 2007 S.D. 86, ¶ 18, 739 N.W.2d

at 8 (quoting Armendariz, 141 P.3d at 533-34). See also Albernaz, 450 U.S. at 343,

101 S. Ct. at 1144 (noting “separate evils” of drug importation and distribution as

supporting a finding of no double jeopardy violation in a conviction for both). The

homicide statutes seek to protect human life by prohibiting the killing of another

human being. See SDCL chapter 22-16. The arson statutes encompass a similar

concern for the protection of human life, especially by prohibiting the act of burning

occupied structures. SDCL 22-33-1 (1995). However, arson also encompasses

burning unoccupied structures, and even personal property. 6 These prohibitions

demonstrate a legislative concern not only for human life, but also for the property

interests harmed by arson. This policy concern is not encompassed by the homicide

statutes. These different societal interests addressed by the two offenses further

6. SDCL 22-33-3 (1995) (prohibiting the burning of unoccupied structures and
burning of personal property valued in excess of twenty-five dollars). The
different societal interests protected by the homicide and arson statutes are
highlighted in the case at bar. The owner and tenants of the building burned
by Garza suffered significant harm to their property interests. At the same
time, an unidentified person was killed as a result of Garza’s intentional
act—a harm the homicide statutes aim to protect against.

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support our conclusion that the Legislature intended to authorize cumulative

punishment for violations of felony murder and the underlying felony of arson.

CONCLUSION

[¶20.] Under our application of the Blockburger test, felony murder and first-

degree arson are not the “same offense” for the purpose of cumulative punishment

analysis. The imposition of punishment under both statutes, in the same

prosecution, does not exceed the punishment prescribed by the South Dakota

Legislature and, consequently, does not violate the Due Process Clause. Therefore,

the circuit court was authorized by the Legislature to impose concurrent sentences

for both crimes. Accordingly, we affirm the circuit court’s denial of Garza’s motion

to correct an illegal sentence.

[¶21.] ZINTER, SEVERSON, and WILBUR, Justices, concur.

[¶22.] KONENKAMP, Justice, concurs in result.

KONENKAMP, Justice (concurring in result).

[¶23.] Although I agree with the result the Court reaches, I disagree with its

declaration that “[i]t is possible to commit a felony murder without committing a

first-degree arson and vice versa.” See supra Majority Opinion ¶ 14. Under the

Blockburger rule, convictions of two criminal offenses arising from the same act are

prohibited only when the greater offense necessarily includes all the elements of the

lesser offense. 7 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182,

7. Contrary to the Court’s claim, this writing does not part ways with the
federal Blockburger analysis. Contra Roberts v. State, 712 N.E.2d 23, 30 (Ind.
(continued . . .)
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76 L. Ed. 306 (1932). For felony murder, the United States Supreme Court has

consistently treated the conviction of a predicate felony and a conviction of the

felony murder charge itself as the same offense under the Double Jeopardy Clause.

See Harris v. Oklahoma, 433 U.S. 682, 682-83, 97 S. Ct. 2912, 2912-13, 53 L. Ed. 2d

1054 (1977) (per curiam) (defendant convicted for felony murder based on

underlying offense of robbery with firearms; subsequent prosecution for robbery

with firearms precluded by the Double Jeopardy Clause); see also Payne v. Virginia,

468 U.S. 1062, 1062, 104 S. Ct. 3573, 3573-74, 82 L. Ed. 2d 801 (1984) (per curiam)

(same).

[¶24.] In South Dakota, arson is one of the necessary predicate offenses of

first-degree felony murder. SDCL 22-16-4(2). Therefore, applying the Blockburger

rule here, arson constitutes the same offense as felony murder for purposes of

double jeopardy analysis, where the felony murder statute requires the act be

committed by a person “engaged in the perpetration of . . . any arson,” SDCL 22-16-

4 (1995), and the first-degree arson statute requires an act of arson — “intentionally

set[ting] fire to . . . any occupied structure[.]” SDCL 22-33-1 (1995). It is not

possible to prove felony murder under SDCL 22-16-4 without also proving arson

under SDCL 22-33-1. Our issue in this case concerns not the conviction of two

offenses, but the resulting punishment.

________________________
(. . . continued)
Ct. App. 1999) (applying a more stringent test) (cited by this Court in Dillon,
2001 S.D. 97, ¶ 20, 632 N.W.2d at 46). Rather, Blockburger is not conclusive
on whether multiple punishments are precluded for different offenses arising
out of the same conduct. Dillon, 2001 S.D. 97, ¶ 14, 632 N.W.2d at 43.

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[¶25.] Nor do I agree with the Court’s reasons for declining to follow Whalen

v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). Whalen is

distinguishable for different reasons. First, it can be read narrowly to apply only to

consecutive sentences. Here the sentences were concurrent. Second, the Whalen

Court construed District of Columbia law, in which the Court found that a district

sentencing statute “clearly confirms that Congress intended the federal courts to

adhere strictly to the Blockburger test when construing the penal provisions of the

District of Columbia Code.” Id. at 692, 100 S. Ct. at 1438. South Dakota has no

equivalent statute.

[¶26.] Yet, as the Court points out, application of the Blockburger rule does

not end our double jeopardy analysis. “[T]he Blockburger rule is not controlling

when the legislative intent is clear from the face of the statute or the legislative

history.” Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 2411, 85 L.

Ed. 2d 764 (1985). If the “[L]egislature specifically authorizes cumulative

punishment under two statutes, regardless of whether those two statutes proscribe

the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at

an end and the prosecutor may seek and the trial court or jury may impose

cumulative punishment under such statutes in a single trial.” Missouri v. Hunter,

459 U.S. 359, 368-69, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535 (1983).

[¶27.] I agree with the Court’s rationale for concluding that our Legislature

intended felony murder and arson to be separately punishable offenses. Other

courts have reasoned likewise. See, e.g., State v. Greco, 579 A.2d 84, 89-92 (Conn.

1990); State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990).

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