Violett v. State

295 N.W.2d 730 (1980)

Robert Alan VIOLETT, Petitioner and Appellant, v. STATE of South Dakota, Appellee.

No. 12993.

Supreme Court of South Dakota.

Argued May 22, 1980.

Decided August 13, 1980.

*731 Thomas M. Frankman of Willy, Pruitt, Matthews, Hurd, Farrell, Frankman & Johnson, Sioux Falls, for petitioner and appellant.

Gene Paul Kean, Sp. Minnehaha County Deputy State's Atty., Sioux Falls, for appellee.

FOSHEIM, Justice.

This is also an appeal from an order denying appellant's request for post-conviction relief. On May 2, 1977, appellant pleaded guilty to escape and was sentenced to fifteen months in the state penitentiary to run consecutively with his prior sentence for the crime of manslaughter. Appellant was represented by counsel throughout the escape proceedings.

At the time of the escape appellant was serving his sentence as a patient at the Human Services Center at Yankton, South Dakota, but was arraigned on the escape charge in Minnehaha County. The information alleged appellant escaped from the penitentiary while he was confined at the Yankton State Hospital (now the Human Services Center). Prior to his plea, appellant was never advised by the court that he had a constitutional and statutory right to a speedy public trial by an impartial jury of Yankton County in which the offense is alleged to have been committed pursuant to Article VI, § 7 of the South Dakota Constitution and SDCL 23-2-11 reenacted as SDCL 23A-16-3.

We refer to our decision in Croan v. State, 295 N.W.2d 728 (S.D.1980), wherein that issue is decided on similar facts.

The order denying post-conviction relief is reversed. The sentence for escape is set aside.

WOLLMAN, C. J., and MORGAN and HENDERSON, JJ., concur.

DUNN, J., dissents.

DUNN, Justice (dissenting).

For all the reasons stated in the dissent in State v. Graycek, 278 N.W.2d 184 (S.D. 1979), and Croan v. State, 295 N.W.2d 728 (S.D.1980), I would affirm the trial court.