STATE OF SOUTH DAKOTA v. JARED STEFFENSEN, TAMI STEFFENSEN, JOANN M. STEFFENSEN

Brookings, SD - Criminal defense lawyers represented defendant JARED STEFFENSEN, TAMI STEFFENSEN, JOANN M. STEFFENSEN, charged with twenty-two counts of violation of financial reporting requirements for grain buyers and theft.

In 2018, the three defendants were jointly indicted in Kingsbury

County on twenty-two counts of violation of financial reporting requirements for

grain buyers and theft. Count one alleged that the defendants conspired to fail to

notify the Public Utilities Commission (PUC) of their grain company’s financial

status and caused financial harm in violation of SDCL 49-45-25 and SDCL 49-45-

27.1 Counts two through sixteen charged fifteen more counts of violation of the

same statutes, one for each of the fifteen grain suppliers allegedly suffering



1. SDCL 49-45-25 provides in relevant part:

If at any time during the licensing period a grain buyer

becomes aware that the grain buyer is not in compliance

with each financial standard, as set forth in the [PUC’s]

rules, the grain buyer shall immediately notify the [PUC]

of the grain buyer’s financial condition. . . . A willful

violation of this section that results in a financial loss to a

grain supplier is a Class 6 felony.

SDCL 49-45-27 provides:

The owner, manager, or chief executive officer of a grain

buyer, or any other person in a managerial position, who

is responsible for any violation of this chapter by a grain

buyer is subject to any criminal penalty that applies to a

grain buyer under the provisions of this chapter.

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financial loss as a result of the defendants’ failure to notify. Counts seventeen

through twenty-two charged some of the defendants with theft, but those counts are

not at issue here.

[¶3.] The defendants moved to dismiss counts two through sixteen of the

joint indictment on the grounds of multiplicity, claiming that the State “splintered”

a single offense into fifteen separate counts. The trial court granted the motion as

to counts three through sixteen, leaving some counts of the joint indictment for

further proceedings against each defendant.2 The State appealed, filing a separate

notice of appeal as to each defendant. This Court issued an order to show cause as

to why the appeals should not be dismissed “on the grounds that no appeal of right

exists from the orders sought to be appealed . . . .”3 The State and the defendants

timely responded to this Court’s order, and having considered their responses and

the applicable authorities, we dismiss the appeals.

Analysis

[¶4.] The parties dispute whether the State has the statutory right to appeal

from the dismissal of certain counts in an indictment. SDCL 23A-32-4 provides in

relevant part:



2. We do not address the propriety of the trial court’s action in this decision.

3. We take notice of issues involving our jurisdiction sua sponte. People, ex rel.,

South Dakota Dept. of Social Services, in interest of L.R., 2014 S.D. 95, ¶ 5,

857 N.W.2d 886, 887 (“It is the rule in this state that jurisdiction must

affirmatively appear from the record and this Court is required sua sponte to

take note of jurisdictional deficiencies, whether presented by the parties or

not.” (quoting State v. Phipps, 406 N.W.2d 146, 148 (S.D. 1987))). “[A] court

always has jurisdiction to determine its own jurisdiction . . . .” Rosado v.

Wyman, 397 U.S. 397, 403 n.3, 90 S. Ct. 1207, 1213 n.3, 25 L. Ed. 2d 442

(1970).

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An appeal by a prosecuting attorney in a criminal case may be

taken to the Supreme Court, as a matter of right, from a

judgment, or order of a circuit court . . . sustaining a motion to

dismiss an indictment or information on statutory grounds or

otherwise . . . .

Notably absent in this language is a right of appeal from the dismissal of counts of

an indictment or information rather than from the dismissal of the whole document.

[¶5.] This Court has previously held that the State’s right of appeal in a

criminal action is strictly governed by the language of the applicable statute. In

State v. Nuwi Nini, we examined the forerunner of SDCL 23A-32-4 noting that we

are “obligated to apply the statute as it is written and must leave to the legislature

the question of whether the right of the State to appeal in a criminal action should

be further expanded.” 262 N.W.2d 758, 761 (S.D. 1978). The Court further

emphasized the limited right of appeal granted to the State concluding that “[t]he

contention of the State that this case should be appealable cannot stand in the face

of the unambiguous statutes involved.” Id.

[¶6.] It is evident that some states permit a statutory right of appeal from

the dismissal of counts of an indictment or information. See, e.g., State v. O’Boyle,

356 N.W.2d 122, 123 (N.D. 1984) (“An appeal may be taken by the state from . . .

[a]n order quashing an information or indictment or any count thereof.” (emphasis

added) (quoting N.D. Cent. Code § 29-28-07(1))); People v. Alice, 161 P.3d 163, 165

(Cal. 2007) (“An appeal may be taken by the people from . . . [a]n order setting aside

all or any portion of the indictment, information, or complaint.” (emphasis added)

(quoting Cal. Penal Code § 1238(a)(1))); State v. Rosseau, 396 S.W.3d 550, 555 (Tex.

Crim. App. 2013) (referring to a statute authorizing “the State to appeal any trial

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court order that ‘dismisses . . . any portion of an indictment, information, or

complaint.’” (emphasis added) (quoting Tex. Code Crim. Proc. Ann. art. 44.01(a)(1))).

[¶7.] However, in contrast with jurisdictions such as those above, our

Legislature has not granted the State a right of appeal from the dismissal of counts

or parts of an indictment, information, or complaint. It is not alone in this regard.

In State v. Campos, 845 N.E.2d 1074, 1076 (Ind. Ct. App. 2006), the State of Indiana

attempted to appeal the trial court’s dismissal of the first count of a three-count

information under a statute that, at that time, granted the state a right of appeal

“from an order granting a motion to dismiss an indictment or information.” Id. at

1076 (quoting Ind. Code § 35-38-4-2(1)).4 Observing that the statute did not

“provide for such an appeal[,]” the court of appeals dismissed it. Id. In its brief

analysis, the court noted prior caselaw requiring a judgment finally disposing “of

the whole case, and not merely a ruling . . . leaving other counts upon which the

trial may proceed.” Id. (quoting State v. Evansville & T.H.R. Co., 8 N.E. 619, 620

(Ind. 1886)). In addition, the court noted that the state’s right “to appeal in a

criminal action is statutory and, unless there is a specific grant of authority by the

legislature, the State cannot appeal.” Id. (quoting State v. Aynes, 715 N.E.2d 945,

948 (Ind. Ct. App. 1999)). The latter principle is consistent with this Court’s

holding in Nuwi Nini. 262 N.W.2d at 761.



4. The Indiana statute was amended after Campos to grant the state a right of

appeal “[f]rom an order granting a motion to dismiss one (1) or more counts of

an indictment or information.” 2015 Ind. Legis. Serv. P.L. 110-2015, Sec. 2

(S.E.A. 261) (West).

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[¶8.] The State’s response to this Court’s order to show cause cites a number

of federal cases, including United States Supreme Court decisions on double

jeopardy. Those decisions, however, address the anticipated consequences of an

adverse decision and not the primary question of this Court’s appellate jurisdiction

under SDCL 23A-32-4. The State appears to argue that, because double jeopardy

could preclude it from further prosecution of the dismissed counts, it must be

entitled to review of the dismissals. We are not necessarily convinced the State

faces an inevitable double jeopardy bar, but even if it did, that fact cannot serve as a

basis for creating a statutory basis for appeal where none exists.5

[¶9.] Sanabria v. United States, 437 U.S. 54, 77-78, 98 S. Ct. 2170, 2186, 57

L. Ed. 2d 43 (1978), cited by the State, recognizes a point similar to one noted in

Nuwi Nini that: “Neither 18 U.S.C. § 3731 (1976 ed.) nor the Double Jeopardy

Clause permits the Government to obtain relief from all of the adverse rulings—

most of which result from defense motions—that lead to the termination of a

criminal trial in the defendant’s favor.” 18 U.S.C. § 3731 is the federal

“jurisdictional statute” addressing the Government’s right of appeal from dismissal



5. Campos also indirectly addresses the State’s denial of review argument. The

facts of that case reveal that the State of Indiana filed both a motion for

interlocutory appeal of the dismissal of the contested count and a notice of

appeal. Campos, 845 N.E.2d at 1075. The State here might also have sought

a discretionary appeal of the dismissal of the contested counts under SDCL

23A-32-12, but instead attempts to appeal as a matter of right under SDCL

23A-32-4.

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orders.6 Sanabria, 437 U.S. at 61, 98 S. Ct. at 2177. Unlike SDCL 23A-32-4, it

grants the Government a right of appeal “from orders ‘dismissing an indictment . . .

as to any one or more counts.’” Id. (emphasis added) (quoting 18 U.S.C. § 3731 (1976

ed.)). Therefore, the federal authorities cited by the State are inapposite because

these cases highlight the distinction between the applicable federal statute and

SDCL 23A-32-4.

Because SDCL 23A-32-4 does not authorize an appeal of right from a

dismissal of individual counts, the State’s appeals must be dismissed because this

Court lacks jurisdiction to hear them. See State v. Brassfield, 2000 S.D. 110, ¶ 5,

615 N.W.2d 628, 629 (“an attempted appeal from an order from which no appeal lies

is a nullity and confers no jurisdiction on this court, except to dismiss it.” (quotingPhipps, 406 N.W.2d at 148)).