author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Yahye Elmi ABDISALAN, Appellant.
    No. C3-02-1149.
    Court of Appeals of Minnesota.
    June 3, 2003.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge, RANDALL, Judge, and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Although appellant could not recall the events that provided a factual premise for his plea, he pleaded guilty to first-degree burglary, admitting that there was sufficient evidence to support a conviction. Before sentencing, appellant moved to withdraw his plea. He argues that the district court abused its discretion by denying his motion because he entered his plea in haste, never admitted his guilt, and felt coerced by his defense attorney. Because appellant has failed to show that the district court abused its discretion in denying his motion to withdraw his plea, we affirm.

FACTS

Appellant Yahye Elmi Abdisalan pleaded guilty to first-degree burglary. The facts presented in support of his plea show that at 2:00 a.m. on October 4, 2000, Abdi-salan cut the screen covering an eight-year-old girl’s bedroom window and entered the room. The girl woke up and told Abdisalan to leave before she called 911. The girl’s five-year-old sister, who was also sleeping in the bedroom, woke up and began to cry. Abdisalan put his hand under the eight-year-old’s bed covers and touched her vaginal area. She kicked him, and he left through the window as the girl’s sister began to scream. The eight-year-old described her assailant to the police, and they arrested Abdisalan. The girl later identified Abdisalan as her attacker from a photographic display. The police also found Abdisalan’s fingerprints at the scene.

Abdisalan pleaded not guilty and requested a jury trial. Before the trial started, the state offered a plea bargain, but Abdisalan rejected it. During voir dire, he changed his mind, agreed to the plea bargain, and decided to plead guilty.

Although Abdisalan is a Somali immigrant, he stated at the time of his plea that he had no difficulty communicating with his attorney about the case; that he could speak, read, and write English sufficiently to enter his plea; that he understood the particular trial rights he would give up by pleading guilty; that no one had threatened or coerced him to get him to plead guilty; that he knew there could be immigration consequences, including deportation; and that he understood the DNA and sex-offender registration requirements. He also indicated that he and his attorney had discussed all of these issues and that he had been allowed sufficient time for the discussions.

Abdisalan testified that he was too intoxicated on the night of the crime to recall what had occurred, but after reading the police reports, hearing pretrial police testimony, and hearing the court’s summary of the complaint, he believed there was sufficient evidence to convict him. Despite his lack of memory of the facts of the crime, Abdisalan decided to plead guilty to obtain a sentence at the low end of the guidelines and to avoid the risk of an upward departure.

Two weeks later, and before sentencing, Abdisalan moved to withdraw his plea, contending that he did not always understand everything, was concerned that a jury might not be fair to Somalians and Muslims, felt coerced by his lawyer who said there was only a 30% chance of acquittal, and felt the judge, prosecutor, and his own attorney were against him. The district court denied his motion, and he appealed.

ISSUE

Even though he acknowledged his trial-related rights and the consequences of pleading guilty, agreed that he had sufficient opportunity to consult with his lawyer, and understood the facts against him, appellant moved to withdraw his plea of guilty before sentencing. He claimed his plea was entered in haste and was coerced.

Did the district court abuse its discretion by denying the motion to withdraw the plea?

ANALYSIS

The district court has broad discretion to permit the withdrawal of a plea of guilty. Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998). This court will reverse only if it can fairly conclude that the district court abused its discretion. Id. A criminal defendant has no absolute right to withdraw a plea of guilty once it has been entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998).

The rules of criminal procedure provide two bases upon which the district court may exercise its discretion to allow a criminal defendant to withdraw a plea of guilty. Minn. R.Crim. P. 15.05. The first requires that the defendant present “proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Id., subd. 1. A defendant may premise a motion to withdraw a plea on this basis either before or after sentencing. A manifest injustice occurs if a defendant’s plea is not accurate, or is involuntary, or is not intelligently entered. Alanis, 583 N.W.2d at 577. Such a plea is not valid, and it would be a manifest injustice to allow an invalid plea to stand. Id.

The second basis for plea withdrawal is the court’s determination, upon considering the reasons for the motion and any prejudice to the prosecution, that “it is fair and just” to allow the withdrawal. Minn. R. Crim P. 15.05, subd. 2. A motion on this basis must be made before sentencing, but it does not require proof of manifest injustice. Id.

Abdisalan does not argue that to allow his plea to stand would be a manifest injustice, and he does not squarely challenge the validity of the plea. We address only those issues raised and argued before this court and that are shown by the record to have been presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Thus, Abdisalan’s presentencing motion to withdraw his plea of guilty seems to raise only the question of whether withdrawal would be fair and just.

Pointing to the quickness with which he made his motion and the fact that he never admitted his guilt, Abdisalan argues that his was a plea by a Muslim immigrant with limited command of English, who feared that a jury would not be fair because of the September 11 terrorism; whose pretrial suppression motion had been denied and whose lawyer felt the chance of acquittal was low, thereby causing him to feel alone in the system and coerced into pleading guilty; and who panicked and entered his plea in haste and with an “unsure heart and confused mind.”

Abdisalan did quickly change his mind after he entered his plea. However, that fact is relevant to show an absence of prejudicial reliance on his plea by the prosecution. See Minn. R.Crim. P. 15.05, subd. 2 (absence of prejudice to the prosecution is one factor the court may consider in a presentence motion to withdraw a plea of guilty). And it is correct that he did not admit the facts underlying his plea. Instead, he said that he could not recall what happened but he chose to enter his plea on the strength of the case against him. See State ex rel. Norgaard v. Tahash, 261 Minn. 106, 113, 110 N.W.2d 867, 872 (1961) (accepting guilty plea was proper where defendant said he did not recall what happened but believed he would be convicted if tried by a jury). He argues on appeal that he consistently maintained his innocence. The record shows the contrary. When the court told him that it could not accept his plea if he denied his guilt, he stated that he was guilty but referred to his intoxication to explain his lack of recollection.

Abdisalan notes that English is his second language and that his comprehension is not 100%. The record shows that he understood the proceedings at which he entered his plea. His answers were precisely responsive to the questions, and he testified that he had been able to read the police reports and had sufficient command of English to enter his plea. Nothing objectively in the record suggests that Ab-disalan failed to comprehend the nature, purpose, and consequences of his plea.

A plea of guilty must not be the product of coercion. See State v. Ecker, 524 N.W.2d 712, 719 (Minn.1994) (guilty plea may not be produced through actual or threatened physical harm or by mental coercion “overbearing the will of the defendant”) (quoting Brady v. United States, 397 U.S. 742, 750-51, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970)). Abdisalan contends that he felt coerced when his defense lawyer told him there was a 70% chance that he would be convicted. But the record shows that his attorney never exerted pressure on Abdisalan to plead guilty, always leaving that decision to him alone. Furthermore, the district court not only ensured that Abdisalan was told clearly of all his trial-related rights, the direct and collateral consequences of the sentence to be imposed, and the particular facts underlying the crime to which he was pleading guilty, but also made certain that his responses evinced a voluntary plea.

Finally, Abdisalan’s contention that he entered his plea hastily is not supported by the record. The possibility of a plea bargain was raised two days before Abdi-salan decided to plead guilty. During the course of pretrial proceedings and voir dire, he changed his mind back and forth about pleading guilty. When he finally decided to plead, his lawyer told him that he could have more time to think about his decision. Abdisalan chose to go ahead with the plea.

Considering the entire context in which Abdisalan’s plea of guilty occurred, as demonstrated by the record, Abdisalan has failed to show that the district court abused its discretion in denying his motion to withdraw his plea of guilty.

DECISION

The district court properly applied the fair-and-just standard for the withdrawal of a plea of guilty before sentencing and did not abuse its discretion in denying appellant’s motion to withdraw his plea.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2003 SD 43
    STATE of South Dakota, Plaintiff and Appellee, v. Timothy TAECKER, Defendant and Appellant.
    No. 22441.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided April 16, 2003.

      Lawrence E. Long, Attorney General, Douglas Kettering, Special Assistant Attorney General, Yankton, South Dakota, Attorneys for plaintiff and appellee.
    Jerry L. Pollard of Kabeiseman & Pollard, Yankton, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Timothy Taecker appeals his jury conviction for felony nonsupport of a child. He claims that the trial court erred in denying his motion for acquittal; the State improperly calculated child support arrear-ages; and, the trial court failed to recognize and properly instruct the jury that nonsupport of a child is a specific intent crime. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On September 10, 2001, the State filed a complaint against Taecker alleging that he “did intentionally omit without lawful excuse to furnish necessary food, clothing, shelter, medical attendance or other remedial care or other means of support for his children by leaving the State of South Dakota.” (emphasis added). The amended information, filed April 23, 2002, charged that:

That on or about the 4th day of December 1996, an Order was filed for record in Yankton County, state of South Dakota, wherein the Defendant was ordered to pay the sum of $540.00 per month for monthly child support and an additional $60.00 towards child support arrears. That the defendant, Timothy Taecker did commit the public offense of NONSUPPORT OF CHILD BY PARENT (SDCL 25-7-16) in that he as parent of a minor child, to-wit:, Andrew S. Taecker, did intentionally omit without lawful excuse to furnish necessary food, clothing, shelter, medical attendance or other remedial care or other means of support for his children by leaving the State of South Dakota, (emphasis added).

[¶ 3.] Prior to a divorce in the State of California, Taecker had four children with his wife Jeanine Taecker (hereinafter Jeanine or’ Mother). The couple separated in 1989 and Jeanine and her four children moved to South Dakota. In 1993 a South Dakota court entered an order to show cause as to why Taecker was not paying child support pursuant to the original California decree. At that time the trial court found that Taecker moved to South Dakota and that his failure to pay was willful. In 1996 another show cause hearing was held in South Dakota wherein an order was entered requiring Taecker to pay $540 per month in support and $60 per month in arrearages. At the time of trial there remained only one child subject to this child support order, Andrew. One child had died; the two others were over age 19.

[¶ 4.] Jeanine testified that Taecker lived in South Dakota in 1996 and that he did not leave South Dakota until he was required to serve time in jail. She also testified that as of December 2000 Taecker furnished no support for Andrew other than limited payments and some medical coverage. The State also offered evidence at trial of $49,206.47 owing in arrearages in 1996, the year of Taecker’s departure from the state.

[¶ 5.] In addition, there was a 1995 tax return in which Taecker indicated that he lived in Yankton, South Dakota. He was employed by three South Dakota construction firms in 1996. He obtained a South Dakota driver’s license and registered four motor vehicles in South Dakota. Taecker testified that he left South Dakota in 1996. He also testified “I left here so I could pay the child support” and sought job opportunities in Nevada and California. From December 1996 until the date of trial there was $7,078.73 owing in arrearages.

[¶ 6.] After leaving South Dakota Taecker had been employed and resided in California and Nevada. Taecker asserted that he could not pay child support because of illness, weather interfering with his occupation and the subsequent loss of his job. On one occasion, Taecker sought to have his support obligation modified but, instead,' that proceeding resulted in a support increase.

[¶ 7.] Taecker does not dispute the State’s characterization of his earnings and that he missed support payments in 2001. He does dispute that he was ever a resident of South Dakota; that his child was not provided with the necessities of life; the amount of arrearages; or that he had the requisite intent not to support his child required by SDCL 25-7-16.

ANALYSIS

ISSUE ONE

[¶ 8.] Whether the trial court erred in refusing Taecker’s motion for acquittal on the grounds that State failed to show that he left the State during a violation as required by SDCL 25-7-16.

[¶ 9.] SDCL 25-7-16 provides in pertinent part:

A parent of a minor child who intentionally omits without lawful excuse to furnish necessary food, clothing, shelter, medical attendance or other remedial care, or other means of support for the person’s child is guilty of a Class 1 misdemeanor. If a parent, during a violation, leaves the state and is absent for more than thirty days, he is guilty of a Class 6 felony....

The Court has recognized that “[b]y the plain reading of the statute, the elements of the offense of felony nonsupport of a child are:

(1) a parent who intentionally omits, (2) without lawful excuse, (3) to furnish necessary food, clothing, shelter, medical attendance, or other remedial care, or (4) other means of support, and (5) is absent from the state for more than thirty days.”

State v. Rome, 426 N.W.2d 583, 584 (S.D.1988). However, there is an additional element applicable here, though not at issue in Rome; the parent must leave the state during a violation. See SDCL 25-7-16. It is the existence of this element of the offense that is disputed by Taecker.

[¶ 10.] Taecker contends that there was no evidence offered at trial that established he was either a resident of the state or that he was present in the state and left during a violation. In response, the State contends that it was only required to prove that the defendant was outside the State of South Dakota and remained that way for thirty days without providing support. The State’s position ignores the plain requirement of SDCL 25-7-16 that the parent must leave during a violation. A plain reading of the statute reveals that the “violation” necessary to create a felony offense refers to the first sentence of SDCL 25-7-16, setting forth the misdemeanor charge of nonsupport. Therefore, misdemeanor nonsupport can rise to the level of a felony if the parent leaves the state during a violation and is absent for at least thirty days.

[¶ 11.] The State errantly argues that any parent that is either a nonresident or has left the State for thirty days, no matter the parent’s status under the support provision at the time of departure, is guilty of a felony. This argument is untenable and contrary to the legislative dictate.

[¶ 12.] It is clear that for a felony conviction under SDCL 25-7-16 the State is required to establish that a parent, during a period when they intentionally omit, without lawful excuse, to furnish necessary food, clothing, shelter, medical attendance, other remedial care, or other means of support for the person’s child (thus creating a “violation”), thereafter leaves the state for more than thirty days. To accept State’s position would require that nonsupport by a nonresident be automatically classified as a felony because that person, by definition, is absent from the state. In essence, State’s argument omits the provision requiring a violation to precede the requisite absence to create a felony offense. This is contrary to the plain terms of the statute, requiring a defendant to leave the state “during a violation.” The statute does not mandate that a parent outside of the state automatically face felony prosecution for nonsupport.

[¶ 13.] Despite State’s position on appeal, the jury was properly instructed that:

The elements of the crime of felony nonsupport of a child, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
(1) That the defendant was the parent of Andrew S. Taecker
(2) That the defendant intentionally failed to furnish necessary (food or clothing or shelter or medical attendance or other remedial care or other means of support) for Andrew S. Taecker.
(3) That the defendant, during a violation, left the state and was absent more than SO days.

“Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury.” Parker v. Casa Del Rey-Rapid City, 2002 SD 29, ¶ 5, 641 N.W.2d 112. This jury instruction sets forth the requisite elements for a felony conviction under SDCL 25-7-16.

[¶ 14.] We review a motion for judgment of acquittal by deciding whether the State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Holzer, 2000 SD 75, ¶ 10, 611 N.W.2d 647, 650. In addition:

In determining the sufficiency of the evidence to constitute the crime, the question presented is whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination the Court will accept that evidence, and the most favorable inferences fairly drawn therefrom, which will support the verdict. In this review we will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn there from, sustains a reasonable theory of guilt.

Id; State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905 (quoting State v. Knecht, 1997 SD 53, ¶ 22, 563 N.W.2d 413, 421).

[¶ 15.] The jury was presented with evidence that Taecker resided in the State of South Dakota until 1996 when both his testimony, and his former wife’s testimony, confirm that he left in that year. In addition, at the time of his departure from South Dakota the evidence established that he owed significant arrear-ages. Concerning nonsupport, Taecker’s former wife testified as follows:

Q: Since December of 2000 I believe this Exhibit shows that there have been very few, if any, child support payments made. Has he helped you in any way with the children other than the few miscellaneous payments that are reflected here?
A: He never has helped.
Q: Now did he — would he send any gifts or anything at Christmas or anything for the kids?
A: Once Nicholas died, he ignored the other three children when it came to Christmas and birthdays.
Q: Did he ever, at the start of school in the fall, buy like Nike’s or any tennis shoes or help with—
A: Nothing. Nothing. Nothing. Nothing. Nothing ever.
Q: So anything that the children received was as a result of the benefit of your labors?
A: Correct.
Q: He never rendered any assistance whatsoever?
A: I am trying to even give him the benefit of the doubt and remembering one single time in 18 years, but there is nothing.

While Taecker contends that he was not a resident and, conversely, never made himself absent from the state, there is sufficient evidence to support a contrary conclusion. There was sufficient evidence presented that Taecker did in fact absent himself from the state during a violation to support the jury’s finding of felony nonsupport beyond a reasonable doubt.

ISSUE TWO

[¶ 16.] Whether the trial court erred in refusing Taecker’s motion for acquittal on the grounds that the minor child had not gone without food, clothing, shelter or other necessities because of Mother’s care of the children.

[¶ 17.] Taecker relies on our decision in State v. Rome, 426 N.W.2d 583, to assert that because the minor child that he was required to support by court order had been otherwise supported by Mother; he cannot be prosecuted for nonsupport of a child. In Rome, this Court determined that because Father had cared for the child and provided the necessities of life while he held the child from Mother following a kidnapping, the conviction for nonsupport of the child could not stand. Rome, 426 N.W.2d at 585. The State did not prove that Rome, as the father, failed to provide for the necessaries of the child. Id. Taecker asserts that this holding bars his conviction because even if he, as father, failed to provide the necessaries of life for the child, Mother did; therefore the child’s care was not a burden on the State. This reasoning is unsupported in both law and fact.

[¶ 18.] Obviously, the facts in Rome are distinguishable as that father, while on the run, supported his child with the necessaries of life. See id. That holding is inapplicable here. As a matter of law, the statutory framework for criminal nonsupport clearly rejects Taecker’s contention. SDCL 25-7-20 provides:

Parent’s criminal liability not relieved by other parent’s custody or support provided by others. This chapter may not be construed to relieve one parent from the criminal liability defined in § 25-7-16 for an omission because the other parent of the child is legally entitled to custody of the child nor because the other parent of the child, or any other person, or organization, voluntarily or involuntarily furnishes necessary food, clothing, shelter, medical attendance, other remedial care, or other means of support for the child.

SDCL 25-7-20 (emphasis added.) This argument is without merit.

ISSUE THREE

[¶ 19.] Whether the State improperly calculated Taecker’s child support ar-rearages.

[¶ 20.] Taecker contends that the State improperly calculated the amount of arrearages owing and the amounts presently due for child support. His argument is that because the support order was entered when there were four minor children it should have been modified so as to reduce the amounts due in order to properly reflect one child, the child that was the subject of this nonsupport prosecution.

[¶ 21.] This Court has previously determined that a support order in a single lump sum may represent more than one child without violating our statutory scheme. See Radigan v. Radigan, 465 N.W.2d 483, 485 (S.D.1991). This Court has also observed that as children no longer meet requirements for support based on factors such as age and circumstance, then a parent should seek modification to reflect those changing circumstances. Id. Taecker asserts that the Radigan holding should be overturned. There is no reason to revisit the Radigan holding in this case.

[¶ 22.] Taecker does not dispute that there is, and has been, child support owing. In addition, SDCL 25-7-19 declares that a decree for the support of a child is irrelevant to a proceeding for criminal nonsupport. As such, this is not the forum to attempt to modify a child support order. What is relevant here to maintain a criminal conviction is whether the father failed to provide his legally mandated child support.

ISSUE FOUR

[¶ 23.] Whether criminal nonsupport is a specific intent or a general intent crime.

[¶ 24.] The trial court refused Taecker’s request to provide an instruction to the jury on specific intent. Taecker contends that criminal nonsupport is a specific intent crime as the statute requires a parent to “intentionally omit” support. SDCL 25-7-16. We have not previously addressed the mens rea requirement of SDCL 25-7-16.

[¶ 25.] With that said, “[t]his Court over the past several years has repeatedly analyzed the specific intent/general intent dichotomy. The use of the terms ‘intentionally’ or ‘knowingly’ merely designate that the culpability required is something more than negligence or recklessness.” State v. Heftel, 513 N.W.2d 397, 400 (S.D.1994) (string citations omitted). “[M]ere use of that term (intentionally) does not designate an additional mental state beyond that accompanying the act.” State v. Huber, 356 N.W.2d 468, 473 (S.D.1984). “Whether or not a crime is a general intent or specific intent crime depends upon its legislative enactment.” State v. Shilvock-Havird, 472 N.W.2d 773, 776 (S.D.1991).

Specific intent has been defined as meaning some intent in addition to the intent to do the physical act which the crime requires, while general intent means an intent to do the physical act- or, perhaps, recklessly doing the physical act-which the crime requires.

State v. Barrientos, 444 N.W.2d 374, 376 (S.D.1989).

[¶ 26.] To establish a violation of SDCL 25-7-16 the State was required to prove that Taecker intentionally omitted, without lawful excuse, to furnish necessary food, clothing, shelter, medical attendance, other remedial care or other means of support for his child. SDCL 25-7-16 requires that a parent’s failure to provide support be an intentional act without lawful excuse. The legislature’s use of the word “intentionally” does not “designate an additional mental state beyond that accompanying the act.” See Huber, 356 N.W.2d at 473 (holding that the legislature’s use of the word “intentionally” when defining the crime of eluding police does not create a specific intent crime). Instead, the State was required to prove Taecker committed this act of omission without lawful excuse. State was not required to prove the act of omission plus a specified intent. Therefore, criminal nonsupport is a general intent crime and the jury was properly instructed.

[¶ 27.] Affirmed.

[¶ 28.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, participating.

      . Taecker came to South Dakota to be with one of his sons prior to his son’s passing.

      . The jury was instructed on alternative counts of either nonsupport of a child or felony nonsupport of a child.

      , Another thirty day provision is present in the legislative definition relating to the obligations of a parent for support. SDCL 25-7-6.1 refers to a parent's "continued absence from the home” and provides:
      [C]ontinued absence from the home means that the parent or child is physically absent from the home for a period of at least thirty consecutive days, and that the nature of the absence constitutes family dissociation because of a substantial severance of marital and family ties and responsibilities, resulting in the child losing or having a substantial reduction of physical care, communication, guidance and support from a parent.
      This definition intimates at the reasoning the legislature had in creating a felony offense for a parent who leaves the state during a violation.


text:
    2003 SD 45
    WOLD FAMILY FARMS, INC., Plaintiff and Respondent, v. HEARTLAND ORGANIC FOODS, INC., Defendant and Petitioner.
    No. 22767.
    Supreme Court of South Dakota.
    Considered March 20, 2003.
    Decided April 23, 2003.

      Allen L. Wold of Wold Family Farms, Pro se plaintiff and respondent.
    H. Eugene Paulson of Heartland Organic Foods, Inc., Pro se defendant and petitioner.
   PER CURIAM.

[¶ 1.] Heartland Organic Foods, Inc. (Heartland), H. Eugene Paulson and Beverly Paulson petition for intermediate appeal from the circuit court’s entry of an order of contempt against Paulsons for faffing to produce Heartland’s business records to Wold Family Farms, Inc. (Wold). We vacate the order and remand for dismissal of the action without prejudice.

FACTS AND PROCEDURE

[¶ 2.] Wold is a shareholder in Heartland. On September 12, 2002, Wold sent a certified letter to Heartland requesting the release of certain financial information. On September 24, 2002, Wold filed the certified letter with the Roberts County clerk of courts. The next activity in this matter, as represented by the circuit court’s file, was the entry of an order on October 2, 2002, compelling production of records signed by the Honorable Jon S. Flemmer. That order required H. Eugene Paulson and Beverly Paulson, as officers and majority shareholders of Heartland, to produce certain financial records to Wold no later than October 11, 2002.

[¶ 3.] On October 11, 2002, Wold filed an affidavit with the circuit court indicating that on October 8, 2002, Paulsons were served with the order. However, despite repeated requests by Wold the records were not produced. In the affidavit, Wold requested that an order to show cause be issued directing Paulsons to appear before the court to answer why they should not be held in contempt for failing to produce the records.

[¶ 4.] On October 15, 2002, Heartland, by and through its officer H. Eugene Paul-son, filed a motion in affidavit form seeking to quash the order compelling production of records and set forth the reasons why production was not possible, namely that the company computer was stolen.

[¶ 5.] On October 25, 2002, the circuit court entered an order requiring Paulsons to appear on November 15, 2002, to show cause why they were not in contempt of court for faffing to comply with the October 2, 2002, order to produce the financial records. The sheriff served the order and notice of that hearing upon officer Beverly Paulson on October 30, 2002, and officer H. Eugene Paulson on October 31, 2002.

[¶ 6.] On November 15, 2002, Heartland, again by and through its officer H. Eugene Paulson, filed an affidavit in defense of the order to show cause. Following a hearing, the circuit court entered findings and an order of contempt. The circuit court specifically found that an order for production had been issued; Heartland and its officers were aware of the order; the corporation had the ability to comply with the order; and the failure to comply with the order was willful. The circuit court also found that “the appropriate procedure was followed in bringing the request for production of corporate records before the court.” The circuit court determined that Heartland could purge the contempt by producing the records to Wold.

[¶ 7.] On December 16, 2002, Heartland filed a “motion for new trial” challenging the order of contempt. On January 2, 2003, Wold filed an affidavit indicating he gave notice of his intention to inspect the records but was told by Paulsons it was impossible to comply with the court’s order. As a result, Wold requested the circuit court to take further action, including the imposition of incarceration and financial sanctions.

[¶ 8.] An amended order to show cause was issued January 21, 2003, requiring Heartland to appear on February 20, 2003, to show cause why such further sanctions should not be instituted. Service of the order was effectuated January 27, 2003. In response, Heartland filed a document captioned “motion for new trial, trial by jury, change of venue.” However, Heartland and its officers did not appear at this show cause hearing.

[¶ 9.] On February 27, 2003, the circuit court entered an order finding Paulsons, as officers for Heartland, in contempt of court. That order recites that service of the order to show cause was properly made; Heartland had previously been held in contempt; Heartland was given an opportunity to purge the contempt; Heartland has the ability to comply with the orders; and the imposition of fines would not remedy the contempt because of Heartland’s insolvency. As such, the circuit court ordered:

[T]hat the officers and directors of Heartland, namely H. Eugene Paulson and Beverly Paulson, be alternately incarcerated in the Roberts County Jail for a period of five (5) days at a time, with weekends off, until such time as the requested corporate and financial records are produced for inspection by Plaintiff. It is the Court’s intention that one of the officers/directors, either H. Eugene Paulson or Beverly Paulson, be incarcerated from Monday through Friday of one week, then released for the weekend, and the other officer/director incarcerated for the following Monday through Friday, and released for the weekend, and so alternating until the records that have been ordered to be produced are produced. This will allow one officer/director to always be available to work on preparing or retrieving the requested records and to conduct the Defendant’s business.

An arrest warrant in conformity with this order was issued the same day.

[¶ 10.] Heartland and its officers filed a petition for permission to appeal with this Court and an application for stay of proceedings. The order for temporary stay was granted March 12, 2003. In the petition and response, as well as throughout these proceedings, all parties have appeared pro se.

[¶ 11.] After reviewing the contents of the petition, the response and the record certified pursuant to SDCL 15-26A-20, we find it necessary to address the following issues: (1) whether necessary procedures for a finding of contempt were followed in the circuit court; and (2) whether the circuit court had jurisdiction to act in this matter.

STANDARD OF REVIEW

[If 12.] “The appropriate remedy or punishment for contempt of court, and any reconsideration thereof, lies within the sound discretion of the trial court.” Harksen v. Peska, 2001 SD 75, ¶ 10, 630 N.W.2d 98, 101. We review conclusions of law under a de novo standard with no deference given to the circuit court. Id. “We are required to take notice of jurisdictional questions, whether presented by the parties or not.” Double Diamond Construction v. Farmers Cooperative Ass’n, 2003 SD 9, ¶ 6, 656 N.W.2d 744. This can be done on the reviewing court’s own motion. Ripple v. Wold, 1997 SD 135, ¶ 15, 572 N.W.2d 439, 443. The issue of jurisdiction may be raised at any time and is reviewed by this court de novo. Devitt v. Hayes, 1996 SD 71, ¶ 6, 551 N.W.2d 298, 300.

ANALYSIS

ISSUE ONE

[¶ 13.] Whether necessary procedures for a finding of contempt were followed in the circuit court.

[¶ 14.] We have recognized that “[s]inee civil contempt can result in incarceration, constitutional safeguards must be observed.” Thomerson v. Thomerson, 387 N.W.2d 509, 512 (S.D.1986). In Thomerson, we held that specific requirements are necessary for a finding of contempt “because the very jurisdiction of the court rests upon proper procedure.” Id. Given the necessity of these jurisdictional requirements we determined in Thomerson that “a detailed review appears appropriate.” Id. We find cause here to review that procedure again.

Contempt of court is classified as either criminal or civil. Criminal or direct con-tempts are words spoken or acts committed in the presence of the court or during its intermissions which tend to subvert, embarrass, or prevent the administration of justice and may be summarily punished by the presiding judge as he may deem just and necessary. Constructive or civil contempts arise not from matters transpiring in court but rather from a person’s failure to comply with orders and decrees issued by the court in a civil action for the benefit of an opposing party. It is not always easy to classify a particular act as belonging either to criminal or civil contempt. It may partake of the characteristics of both. However, the distinction in punishment is clear. In criminal contempt the order itself is in the nature of punishment. In civil contempt the punishment is coercive, that is, it compels the person to act in accordance with the court’s order.

Id. (internal citations omitted). On these facts it is clear that we are concerned with civil contempt.

[¶ 15.] “A prosecution for civil contempt, as distinguished from criminal contempt, involves features of a formal trial including the making of an affidavit and the giving of notice to the contemner.” Id. “The affidavit seeking an adjudication of civil contempt is treated as a complaint or information to which the accused, in effect, is requested to plead guilty or not guilty.” Id. The affiant must establish four elements for a prima facie case warranting a finding of contempt. Those elements are (1) the existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience of the order. Id. (citing Rousseau v. Gesinger, 330 N.W.2d 522, 524 (S.D.1983)). The complaining affidavit cannot be stated upon presumption, intendments, or upon information and belief. Id. Rather, it must be based on specific facts within the knowledge of the affiant. Here, Wold submitted an affidavit outlining what he asserted to be contumacious behavior and requested the imposition of imprisonment or fines in order to compel production.

[¶ 16.] This Court has held that:

If the contempt consists in the refusal of the party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed until he complies with the order. Adjudication for contempt which contains a commitment for imprisonment is insufficient if the mandate is to take the prisoner into custody and detain him until the further order of this court or until he shall be discharged by due course of law.

Id. “To form the basis for a subsequent finding of contempt, an order must state the details of compliance in such clear, specific, and unambiguous terms that the person to whom it is directed will know exactly what duties or obligations are imposed upon him.” Karras v. Gannon, 345 N.W.2d 854, 856 (S.D.1984). If imprisonment is imposed in a civil contempt proceeding it cannot be for a definite term or it would become punitive and criminal penalties cannot be imposed in a civil setting. Thomerson, 387 N.W.2d at 514; Karras, 345 N.W.2d at 856. Therefore, the party may be held until he complies with the order or demonstrates that compliance is impossible. This is what the circuit court ordered.

[¶ 17.] “Since the punishment for civil contempt could be imprisonment, the accused is entitled to representation by counsel as a matter of right.” Thomerson, 387 N.W.2d at 513. The United States Supreme Court has stated:

Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant to either the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty.

Id. (quoting Cooke v. U.S., 267 U.S. 517, 536-37, 45 S.Ct. 390, 395, 69 L.Ed. 767). See also 17 Am.Jur.2d Contempt, § 92; Simmons v. Simmons, 66 S.D. 76, 278 N.W. 537, 538 (S.D.1938). This is not a case of direct contempt occurring in open court but, instead, a failure to comply with the orders of the court in a civil action or constructive contempt. Therefore, these safeguards are applicable to the contempt prosecution.

[¶ 18.] Here, the record does not demonstrate that the circuit court either advised Heartland’s officers of this right or appointed counsel for the officers prior to ordering imprisonment for failing to comply with the order to produce records. Failure to do so is procedural error requiring reversal.

ISSUE TWO

[¶ 19.] Whether the circuit court initially had jurisdiction to act in this matter.

[¶ 20.] “All facts showing the jurisdiction of the court must appear in the affidavit.” Thomerson, 387 N.W.2d at 518. Without an affidavit stating every material fact constituting the alleged violation the court has no jurisdiction. Id. “When the court has acquired jurisdiction an appropriate adjudication can be rendered, including a commitment to jail even though the committed party in contempt is not personally present.” Id. Therefore, we turn to the question of whether the circuit court initially had jurisdiction to act.

[¶ 21.] The record demonstrates that the circuit court became involved in this dispute following the filing of a certified letter from Wold to Heartland requesting the release of certain financial information. From there, the circuit court entered an order to show cause and eventually a finding of contempt. However, there is nothing in the file to demonstrate that the circuit court ever acquired jurisdiction in this matter. In essence, the circuit court was enforcing a discovery request prior to the commencement of any action. The circuit court has never acquired jurisdiction to act in this dispute between these entities.

[¶ 22.] SDCL 15-2-30 provides that “an action is commenced as to each defendant when the summons is served upon him, or on a codefendant who is a joint contractor or otherwise united in interest with him.” In addition, a motion for an order compelling discovery may be brought by “a party, upon reasonable notice to other parties and all persons affected thereby.” SDCL 15-6-37(a). On this record, there are no parties because an action has not been commenced by the service of a summons. As a result, the circuit court was drawn into a dispute concerning the production of business records that it had no authority to act upon. This was clearly improper.

[¶ 23.] “Service of process vests a court with jurisdiction to act.” Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D.1992). “Thus, due and legal service of process is necessary to give a court jurisdiction over a defendant.” Id. Without jurisdiction to act, the orders and judgment of the court are void ab initio. Id. at 521. “In order for the trial court to have jurisdiction in these contempt proceedings, personal service upon [defendant] under the provisions of SDCL 15-6-4 was mandatory. Because this service is absent, jurisdiction is totally lacking.” Matter of Gillespi, 397 N.W.2d 476, 477 (S.D.1986).

[¶ 24.] “[T]he failure to issue, file, or serve a summons, as in this case, deprives the court of jurisdiction.” Ripple v. Wold, 1997 SD 135, ¶15, 572 N.W.2d 439, 443; See also Lekanidis v. Bendetti, 2000 SD 86, ¶ 33, 613 N.W.2d 542, 549 (recognizing that it is well settled law that an action is commenced by the service of a summons and without valid service of process the trial court has no jurisdiction to act.). “One may research over 100 years of decisions and find the law has remained the same. No proper service. No jurisdiction.” Wagner v. Truesdell, 1998 SD 9, ¶ 17, 574 N.W.2d 627, 631 (Gilbertson J., concurring in result).

[¶ 25.] “Disobedience of, or resistance to, a void mandate, order, judgment, or decree, or one issued by a court without jurisdiction of the subject matter and parties litigant, is not contempt.” 17 CJS Contempt § 16. “We must keep in mind the distinction between a void order and one that is merely erroneously entered, for disobedience of a void order is not punishable as contempt, whereas an order erroneously or improvidently entered must be complied with.” Karras, 345 N.W.2d at 857. The result is that the “disobedience of a void order is not punishable as contempt.” Nolan, 490 N.W.2d at 521.

[¶ 26.] The circuit court had no jurisdiction in this matter to issue the order compelling production of records given the absence of service of process. Therefore, the circuit court did not have jurisdiction to issue the subsequent orders attempting to enforce that initial order. Because the circuit court never acquired jurisdiction in this matter the order of contempt is void ab initio.

[¶ 27.] Given the state of this record, we are compelled to take this opportunity to emphasize that pro se litigation is on the rise in the courts of South Dakota. This requires the members of the bench to actively assess whether they have jurisdiction to act in any particular matter. When the adversary process does not reveal such an inherent defect the court has the responsibility to intercede. Though this is required in every case, it becomes especially pronounced when the parties appear pro se.

[¶ 28.] Accordingly, we grant the petition, dismiss the orders of the circuit court for lack of jurisdiction, vacate the circuit court’s order of contempt and arrest warrant and remand for dismissal of the action without prejudice.

[¶ 29.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . It is necessary for this Court to grant the petition in order to acquire jurisdiction to act. SDCL 15-26A-3(6). See Dep’t of Highway Safety v. Bennett, 832 So.2d 248 (Fla.App. 2002); Commitment of Singleton, 829 So.2d 402(Fla.App. 2002) (granting the petition, vacating the trial court’s order granting motion to compel discovery and remanding for further proceedings simultaneously).

      . Although issue two on jurisdiction is dispos-itive of this appeal, it is likely that the matter may be re-filed at a future date to overcome current jurisdictional defects. To avoid a possible second appeal, we address the issue of proper procedures concerning civil contempt.

      . In the case of indirect contempt, civil or criminal, unless the trial judge predetermines the nature of the infraction is of insufficient gravity to warrant the imposition of imprisonment if the accused is found guilty, the unrepresented accused must be advised of his or her right to counsel and, absent a knowing and intelligent waiver thereof, be given adequate opportunity to obtain representation. If the accused is determined to be indigent, counsel must be appointed before any critical stage of the contempt proceeding.

        Hunt v. Moreland, 697 S.W.2d 326, 329-30 (Mo.App. E.D.1985).

      . We would point out that an individual who is not a licensed attorney may not appear pro se to represent a corporation of which he is a director, officer or shareholder. See Rosebud Fed. Cr. Union v. Mathis Implement, 515 N.W.2d 241, 244 (S.D.1994)(Miller, C.J., concurring specially).


author: ZINTER, Justice. SABERS, Justice, MEIERHENRY, Justice,

text:
    2003 SD 48
    Lauw Marcus MAAS, Appellant, v. DEPARTMENT OF COMMERCE AND REGULATION, Appellee.
    No. 22516.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided April 23, 2003.
    Rehearing Denied May 21, 2003.

      Patrick M. Ginsbach of Farrell, Farrell and Ginsbach, Sioux Falls, South Dakota, Attorney for appellant.
    Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.
   ZINTER, Justice.

[¶ 1.] Lauw Marcus Maas appeals from a one-year revocation of his drivers license by the Department of Commerce and Regulation (Department). The Department revoked his license because of a second offense DUI conviction. Maas argues that the Department, and the circuit court on appeal, applied the wrong look-back window in which prior DUI convictions can be considered to extend the length of a revocation. We affirm the Department’s revocation under SDCL 32-12-52.1, and its use of the ten-year look-back window in SDCL 32-23^.1.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Maas was convicted of DUI in 1993. He was later convicted of DUI in 2001. However, the 2001 DUI was not specifically “charged” as a “second offense” under SDCL 32-23-3 and 32-23-4.2. Moreover, for reasons not reflected in the record, the sentencing court only suspended Mass’s license for thirty days on the 2001 conviction, even though SDCL 32-23-3 required the comi; to revoke for one year. SDCL 32-23-3, Supra n. 1; Matter of Revocation of Driver License of Fischer, 395 N.W.2d 598 (S.D.1986).

[¶ 3.] The Department, however, has independent authority to revoke driving privileges. Fischer, supra. Therefore, the Department notified Maas that it was revoking his license for the mandatory one year period. The Department’s notice indicated that it had instituted the revocation proceeding under SDCL 32-12-52.1. That statute required the Department to revoke the license to the extent that the court “faded to invoke the mandatory” one-year revocation required by SDCL 32-23-3.

[¶4.] Maas objected to the one-year license revocation and requested a hearing before a hearing examiner. The hearing examiner issued a proposed decision concluding that the Department could only consider prior DUI convictions that occurred within four years of the 2001 offense. The hearing examiner arrived at that conclusion because she applied the four-year look-back window in SDCL 32-12-49, a statute different than SDCL 32-12-52.1, the statute that the Department used to impose the revocation.

[¶ 5.] The Department rejected the hearing examiner’s proposed decision. The Department concluded that it was not restricted to the four-year look-back window in SDCL 32-12-49 because it had revoked pursuant to SDCL 32-12-52.1. The Department also concluded that under SDCL 32-12-52.1 (and SDCL 32-23-4.1), it was required to consider DUI convictions occurring within ten years of the 2001 offense.

[¶ 6.] Maas appealed the Department’s decision to circuit court. The circuit court affirmed the Department. The circuit court held that the ten-year statutes (SDCL 32-23-4.1 and 32-12-52.1) specifically applied to DUIs, and because they were specific, they prevailed over the general four-year statute (SDCL 32-12-49), which does not specifically refer to DUIs.

[¶ 7.] Maas appeals raising two issues:

1. Whether the Department may consider convictions that are more than four years old when revoking driving privileges for prior DUI convictions.
2. Whether the Department failed to give reasons for rejecting the hearing examiner’s proposed decision as required by SDCL 1-26D-8.

STANDARD OF REVIEW

[¶ 8.] We review this administrative ruling under our well settled standard of review.

The Court reviews agency findings in the same manner required of the circuit court when reviewing a decision from an administrative agency. This Court reviews findings of fact under the clearly erroneous standard, whereas questions of law are reviewed under the de novo standard.

West Central Education Association v. West Central School Dist., 2002 SD 163, ¶ 10, 655 N.W.2d 916, 919 (further citations omitted). This is a case of statutory interpretation. We review statutory interpretation de novo. Arends v. Dacotah Cement, 2002 SD 57, ¶ 11, 645 N.W.2d 583, 587.

DECISION

[¶ 9.] 1. The Department may consider convictions that are more than four years old when revoking driving privileges for prior DUI convictions under SDCL 32-12-52.1.

[¶ 10.] This appeal highlights a difference in SDCL 32-12-49 and 32-12-52.1, the two statutes that authorize the Department to revoke drivers licenses for DUI convictions. SDCL 32-12-49 is the general statute. It applies to any conduct that may authorize the Department to revoke a drivers license. Although that statute does not contain any reference to DUI convictions, subsection (1) is applicable to DUIs by implication because it permits revocations whenever there is a conviction for any offense that requires a “mandatory revocation.” If SDCL 32-12-49 is applied to DUIs, the Department may only consider prior convictions occurring within four years of the current violation. SDCL 32-12-49 provides in relevant part:

The secretary of commerce and regulation may suspend, revoke, or cancel the driving privilege or license of a person after opportunity for hearing pursuant to chapter 1-26 if hearing is demanded, upon a showing by its records or other sufficient evidence that the licensee:
(1) Has been convicted of an offense for which mandatory suspension or revocation of license is required;
In determining whether a driver license or privilege should be suspended or revoked under this section, the director may not consider any offense that is more than four years old.

(emphasis added).

[¶ 11.] SDCL 32-12-52.1, however, specifically applies to DUIs, and it authorizes the Department to revoke a drivers license “to the extent that the driver license or privileges should have been revoked [by the trial court under] the mandatory [revocation] provisions of SDCL 32-23-2 to 4.” This authority, under SDCL 32-12-52.1, includes the power to increase a thirty-day revocation to one year where the defendant was not charged by the prosecutor or sentenced by the court as a second offender in the criminal proceeding. Fischer, 395 N.W.2d 598. SDCL 32-12-52.1 provides:

The Department of Commerce and Regulation shall revoke the driver license or driving privilege of any driver upon receiving notice of that driver’s conviction for a violation of the provisions of § 32-23-1 to the extent that the driver license or privileges should have been revoked, if the judgment and sentence of the trial court failed to invoke the mandatory provisions of §§ 32-23-2 to 32-23^1, inclusive, or the driver had been charged and convicted consistent with the records of the Department of Commerce and Regulation.

SDCL 32-12-52.1 (emphasis added). To determine “the extent that the driver license or privileges should have been revoked” by the court (and therefore by the Department), SDCL 32-23-4.1 specifically permits consideration of prior DUI convictions occurring within ten years of the current violation.

No previous conviction for, or plea of guilty to, a violation of § 32-23-1 occurring more than ten years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense. However, any period of time during which the defendant was incarcerated for a previous violation may not be included when calculating if the time period provided in this section has elapsed.

SDCL 32-23-4.1 (emphasis added).

[¶ 12.] Although Maas’ license was revoked under these latter statutes, he argues that the ten-year look-back provision of SDCL 32-23-4.1 cannot be used in conjunction with SDCL 32-12-52.1 to increase his 2001 revocation because his 2001 offense was not “charged” as a “second offense.” Maas reasons that because he was not “charged” as a second offender, he could not have been sentenced as a second offender by the court. Maas concludes that if the court could not have sentenced him as a second offender using the ten-year look-back window, the Department is equally limited. Maas points out that SDCL 32-12-52.1 only permits Departmental revocation “to the extent that the driver license or privileges should have been revoked” by the court. However, Maas’s entire argument is incorrectly premised on the assumption that absent a formal charge of “second offense” DUI, the trial court (and therefore the Department) are precluded from imposing a one-year revocation on the second, but uncharged DUI offense. In fact, we reached the opposite conclusion in Fischer, 395 N.W.2d 598.

[¶ 13.] Like the case before us now, Fischer involved a second DUI that was not formally “charged” or “sentenced” as a “second offense.” Consequently, the “judgment and sentence of the trial court failed to invoke the mandatory [1 year revocation] provisions.” Id. at 600. Later, the Department notified Fischer that it was revoking his driver’s license under SDCL 32-12-52.1 for the mandatory óne-year period. In considering the legality of the Department’s action under SDCL 32-12-52.1, we noted that it was unimportant whether the trial court was aware that Fischer was being afforded an opportunity to plead to a second offense as if it were a first offense DUI. We recognized that the failure to correctly sentence a subsequent offense can occur as a result of judicial leniency, the state’s attorneys exercise of prosecutorial discretion, or perhaps inattention to a defendant’s record. Id. at 600, 603.

[¶ 14.] We concluded that when such judicial leniency or prosecutorial oversight occurs, the Department is authorized to commence a separate and distinct civil proceeding to revoke under SDCL 32-12-52.1. We specifically stated that in those civil proceedings, the Department has authority to act where there has been judicial or prosecutorial “leniency,” or “oversight.” Id. at 600. We observed that the relevant question under SDCL 32-12-52.1 is whether “the mandatory penalty [was] imposed per the offense as it was, or should have been charged [.] ” Id. at 602. (emphasis added). This emphasized language clearly envisioned Departmental correction of both prosecutorial and judicial leniency. Therefore, even though that second offense was not charged as a. second offense, we ultimately held that the Department was authorized to revoke the license under SDCL 32-12-52.1 for one year. Id. at 601.

[¶ 15.] Under this precedent, the premise of Maas’s argument fails. Under this precedent and SDCL 32-12-52.1 (including 32-23-^1.1), the Department must revoke for “second offense” DUI when the prosecutor fails to charge the DUI as a second or subsequent offense, as well as when the court fails to impose the mandatory revocation provisions of the statutes. Fischer, 395 N.W.2d at 602.

[¶ 16.] Maas next argues that we should consider the ten-year and the four-year statutes together. He argues that when considered together, the Department should be limited to the four-year look-back window in SDCL 32-12-49, and only the courts may use the ten-year look-back window in SDCL 32-23-4.1 (through 32-12-52.1). However, we believe that because both statutes specifically authorize the Department to revoke, it is more appropriate that SDCL 32-12-52.1 be considered one specific avenue for Departmental revocation, while SDCL 32-12-49 is another general avenue. Ultimately, this case is controlled by the avenue that the Department utilized when it revoked Maas’s license.

[¶ 17.] The Department’s Notice of Revocation indicated that it utilized SDCL 32-12-52.1. The notice stated “[y]ou are hereby notified that your South Dakota drivers license ... is revoked for the following reasons: DRIVING WHILE INTOXICATED; SDCL (32-23-1) (32-12-52.1) (32-12-56.2)” (emphasis added). Notably, there is no reference in this notice to SDCL 32-12-49. The notice specifically confirms that the Department was proceeding under the authority of SDCL 32-12-52.1. Indeed, the Department concluded in its pre-hearing conclusions of law that:

The [Department] has the authority to revoke the driver license pursuant to SDCL 32-12-52.1.... Conclusion of law 1.
The [Department] is required to revoke the license ... upon receiving notice of an operator’s conviction of any of the provisions of SDCL 32-23-1 ... [i]f the judgment and sentence of the trial court failed to invoke the mandatory provisions of SDCL 32-23-3 to 32-23-4, inclusive, and [to] the extent that the operator’s privileges of driving should have been revoked (SDCL 32-12-52.1). Conclusion of law 4.
[T]he driver license of [Maas] was not revoked for the mandatory [one-year] term. Conclusion of law 5.

[¶ 18.] Thus, the Department unquestionably acted under the authority of SDCL 32-12-52.1. Had the Department initiated this revocation proceeding under SDCL 32-12-49, it would have been limited to that statute’s four-year look-back window. However, it is clear from this record that the Department acted under SDCL 32-12-52.1 and 32-23-4.1. Because the Department was acting under the more specific authorization in SDCL 32-12-52.1 and 32-23-4.1, we hold that it did not err in using the ten-year look-back window in revoking Maas’s license.

[¶ 19.] 2. The Department did not fail to give reasons for rejecting the hearing examiner’s proposed decision as required by SDCL 1-26D-8.

[¶ 20.] Maas argues that the Department did not follow a procedural requirement when it rejected the hearing examiner’s decision. That requirement, found in SDCL 1-26D-8, requires that “[i]f the reviewing agency rejects or modifies proposed findings or a proposed decision [of a hearing examiner], it shall give reasons for doing so in writing.”

[¶ 21.] Here, the Department’s post-hearing Conclusion of Law 3 and 4 stated its reasons for rejecting the hearing examiner’s proposed decision. Those Conclusions of Law stated:

When a DWI conviction reaches the Driver Licensing Department, and the judge has not revoked the driver’s [sic] license for the mandatory length of time, the Department must do so as required by SDCL 32-12-52.1. Conclusion of Law 3.
The four-year limitation in SDCL 32-12-49 applies to that section only; not to driver’s [sic] license revocations resulting from a conviction of SDCL 32-23-1 in conjunction with SDCL 32-23-4.1. Conclusion of Law 4.

[¶ 22.] We conclude that these Department conclusions satisfied the “written reasons” requirement in SDCL 1-26D-8. The purpose of that requirement is to provide for meaningful appellate review. Considering that purpose, even a brief reason for rejection of a hearing examiner’s decision, without elaboration, can be sufficient to provide a reviewing court with a sufficient record for appellate review. Watertown Co-op. Elevator Ass’n v. South Dakota Dept. of Revenue, 2001 SD 56, ¶ 16, 627 N.W.2d 167, 173. Although the Department’s reasons stated here were conclusory, they were conclusory only because the sole issue in this case involved the conclusion of law as to which statute applied. Because the Department’s written Conclusions of Law adequately explained its application of the relevant statutes, the Department’s stated reasons complied with SDCL 1-26D-8.

[¶ 23.] We affirm.

[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[IT 25.] SABERS and MEIERHENRY, Justices, dissent.

SABERS, Justice,

dissenting.

[¶ 26.] I join Justice Meierhenry’s dissent to the extent that she states that the Department is entitled only to those powers specifically delegated to it by the Legislature. The Department has failed to show that it has the authority to disregard SDCL 32-12-49 and look back beyond four years for determination of license revocation.

[¶ 27.] The majority opinion allows the Department complete discretion as to how far it will look back for purposes of license revocation. By providing that the look back period will vary depending upon which statute the Department chooses to proceed under, the majority creates a state of law under which no person will know what their potential revocation will be until the Department picks a statute. This is inconsistent with due process and inconsistent with the principles of predictability and continuity in the law. Office of Consumers’ Counsel v. Public Utilities Commission, 58 Ohio St.2d 108, 388 N.E.2d 1370, 1377 (1979) (noting, “[a] well-recognized legal standard is that predictability is essential in all areas of the law, including administrative law”).

MEIERHENRY, Justice,

dissenting.

[¶ 28.] I dissent on Issue I and concur on Issue II.

[¶ 29.] The Department, as an administrative agency, has only the authority the legislature expressly delegates to it. The legislature in SDCL § 32-12-52.1 does not expressly give the Department the authority to consider ten-year-old convictions in revoking drivers’ licenses. I find the Department exceeded its authority.

[¶ 30.] The statutory clause upon which the Department bases its authority states that the Department shall revoke the license of a person convicted of DUI “to the extent that the driver license or privileges should have been revoked, if the judgment and sentence of the trial court failed to invoke the mandatory provisions of §§ 32-23-2 to 32-23-4, inclusive, or the driver had been charged and convicted consistent with the records of the Department of Commerce and Regulation.” SDCL § 32-12-52.1. To interpret the statute to give the Department authority to look back ten years would require this Court to read words into the statute that are not there.

[¶ 31.] The majority opinion relies on Matter of Revocation of Driver License of Fischer, in which the Court in applying a prior version of SDCL § 32-12-52.1 allowed the Department to revoke Fischer’s operating permit for one year when he pleaded guilty to a first-offense DUI approximately one year after his conviction for a previous first-offense DUI. 395 N.W.2d 598, 599 (S.D.1986). I also believe that Fischer controls the case before us, however, disagree on its application. The look-back statute was not an issue in Fischer nor did the Court address it because the two convictions were within the four year limitation of SDCL § 32-12-49. The issue in Fischer was whether the statute allowed the Department to revoke a license in a case where the prosecutor had only charged a first offense DUI and the Department records indicated it could have been charged as a second offense DUI and where the court imposed the mandatory minimum revocation. The Fischer Court found that the Department had the authority to revoke the license based upon the language of that portion of the statute allowing the Department to revoke if the “operator had been charged and convicted consistent with Department records.” Id. at 600. In Fischer, the Court found that the statute was ambiguous and was not limited only to instances where the court had failed to impose mandatory minimum license revocations. Id. The Court determined that the statute allowed the Department to revoke a license not only when the trial court failed (1) “to impose the minimum statutory revocation,” but also (2) when the prosecutor had failed to charge as a second or subsequent offense. Id. The Court stated, “The statute as originally enacted gave Department authority to act in instances of judicial leniency. The amendment adds nothing in that regard but, where it refers to ‘charged and convicted,’ we believe that it is meant to deal with prosecutorial leniency or oversight.” Id.

[¶ 32.] Fischer was not a case of judicial leniency — the trial court properly imposed the mandatory mínimums for a first-offense DUI. Fischer was a case of prose-cutorial leniency. With prosecutorial leniency, the Court found the Department had authority to revoke under the second element of the statute which gave it the authority “to the extent it should have been revoked if: ... (2) the operator had been charged and convicted consistent with Department records.” Id. So too is the case before us. Maas was charged and convicted of two DUI, first offenses. The judge, as required by statute, imposed the mandatory thirty-day revocation — clearly not a case of judicial leniency.

[¶ 33.] This Court has consistently ruled that an agency has only the authority granted to it by statute.

The general rule is that administrative agencies have only such adjudicatory jurisdiction as is conferred upon them by statute. Furthermore, ‘[an administrative agency] may not acquire jurisdiction by estoppel or consent, and, where it acts without jurisdiction, its orders are void.’ An agency has only such power as expressly or by necessary implication is granted by legislative enactment; agency may not increase its own jurisdiction and, as a creature of statute, has no common-law jurisdiction nor inherent power such as might reside in a court of general jurisdiction.

O’Toole v. SD Retirement System, 2002 SD 77, ¶ 15, 648 N.W.2d 342, 346 (citations omitted).

[¶ 34.] The question, here, is what revocation authority has the legislature conferred upon the Department in SDCL § 32-12-52.1. This is one of several statutes in SDCL Ch. 32-12 and -12A wherein the legislature has defined the Department’s authority. By this delegation, the legislature gave the Department the power to revoke or suspend a driver’s license but only in certain circumstances. Some of the circumstances are described in SDCL § 32-12-^9 and in SDCL § 32-12-52.1. In SDCL § 32-12^49, the law lists eight categories under which the Department can suspend, revoke or cancel a driver’s license or privilege. In SDCL § 32-12-52.1, the law directs the Department to revoke the driver’s license of someone convicted of a DUI in the following instances, first, when the trial court failed to revoke it as mandated in “ §§ 32-23-2 to 32-23-4, inclusive” and, second, when someone is convicted of a DUI and the prosecutor had not charged it as a second or third offense. It is important to note that the legislature stopped short of authorizing the Department to revoke when a court fails to impose the mandatory two-year revocation for fourth and subsequent DUI’s in SDCL § 32-23^.6. Noteworthy also is the 'absence of any reference to the ten-year look-back statute allowed to prosecutors in SDCL § 32-23-4.1. Had the legislature intended to give the Department a ten-year look-back it could have amended the drivers’ license statutes at the same time it amended the criminal statutes.

[¶ 35.] In the first instance designated in SDCL § 32-12-52.1, the Department’s revocation authority arises after the driver has been charged and convicted as a second or third offender with all the corresponding rights and procedures of the criminal justice system and as this Court stated in Fischer when a lenient court failed to impose the mandatory minimum. In the second instance, the driver has not been charged or convicted as a second or subsequent offender in a court of law, that is, a prosecutor has chosen not to charge the offense as a second or subsequent DUI. In this case, the first element of the statute cannot apply because the court had imposed the mandatory revocation. Therefore, the Department can only revoke under the second element of the statute, as if “the driver had been charged and convicted consistent with the records of the Department of Commerce and Regulation.” SDCL § 32-12-52.1. The administrative authority to proceed based upon its own records is outlined in SDCL § 32-12-49 and specifies a person’s right to a chapter 1-26 administrative hearing. Without specific authority in SDCL § 32-12-51.1 to use ten-year old convictions, the Department must rely on its administrative authority in SDCL § 32-12-49 which prohibits the Department from considering offenses more than four years old. I would reverse the trial court and reinstate the ALJ’s decision on Issue I.

      . SDCL 32-23-3 provides:
      If conviction for a violation of § 32-23-1 is for a second offense, such person is guilty of a Class 1 misdemeanor, and the court shall, in pronouncing sentence, unconditionally revoke the defendant’s driving privilege for a period of not less than one year. However, upon the successful completion of a court-approved alcohol treatment program, the court may permit the person to drive for the purpose of employment and may restrict the privilege by the imposition of such conditions as the court sees fit. If such person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than three days, which sentence may not be suspended, (emphasis added).
      SDCL 32-23-4.2 provides:
      In any criminal case brought pursuant to the provisions of § 32-23-3, 32-23-4 or 32-23-4.6, the information shall allege, in addition to the principal offense charged, a former conviction or convictions, and the information shall be in two separate parts, each signed by the prosecutor. In the first part the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. Except as provided in § 32-23-3, the court may not permit an accused with any prior conviction to drive for the purpose of employment even if the prosecutor dismisses the second part of the information.

      . SDCL 32-23-2 provides in part:
      If conviction for a violation of § 32-23-1 is for a first offense, such person is guilty of a Class 1 misdemeanor, and the defendant’s driving privileges shall be revoked for not less than thirty days.

      . SDCL 1-26-29 provides:
      No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively require emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

      . SDCL 32-23-4.1 was amended in 2001 to extend the look-back period from five years to ten years. SL 2001, ch 177, § 1. Maas’s license was revoked under the 2001 amendment to SDCL 32-23-4.1.

      . The dissent also incorporates this premise to support its conclusion. More specifically, the dissent concludes that the first clause of SDCL 32-12-52.1 cannot apply "because the [sentencing] court had imposed the mandatory revocation [required by statute].” (emphasis added). See ¶¶ 31, 32, and ¶ 35, infra. From this premise, the dissent concludes that because the sentencing court had imposed the "mandatory revocation,” the Department could only revoke under the second clause in SDCL 32-12-52.1, which only permits the department to “proceed based upon its own records ... in SDCL 32-12-49....” However, the premise for the dissent's conclusion is not supported by Fischer. Fischer clearly recognized that under similar facts, the sentencing court under review there had not imposed the mandatory revocation required by statute. Indeed, Fischer specifically rejected the notion that the sentencing court had properly invoked “the mandatory provisions of §§ 32-23-2 to 33-23-4.” Fischer, 395 N.W.2d at 600.

      .Although Fischer applied a prior version of SDCL 32-12-52.1, the differences are not material to the outcome of this case.

      . This dissent does not recognize that the Fischer sentencing court failed to impose the "mandatory minimum revocation,” (see infra at ¶¶ 31, 32 and ¶ 35). Had the Fischer sentencing court imposed the "mandatory minimum revocation,” Fischer could not have held that the Department was authorized to increase the revocation from thirty days to one year in that case.

      . The dissent concludes that the ten-year look back window is unauthorized by statute, and that utilization of a ten-year look-back window "would require this Court to read words into the statute that are not there.” Infra at ¶ 30. However, no reading of words into the statute is necessary if all words in SDCL 32-12-52.1 are considered. The first relevant clause (described by the dissent as the first instance) is statutory authorization for the Department to revoke to the same extent that a trial court possesses authority to revoke under the mandatory provisions of SDCL 32-23-2 to 4. Because a trial court clearly possesses authority to utilize the ten-year look-back window in SDCL 32-23-4.1, the Department also possesses such authority under that clause which requires a departmental revocation “to the extent that the driver license or privileges should have been revoked, if the judgment and sentence of the trial court failed to invoke the mandatory [revocation].” (emphasis added). SDCL 32-12-52.1.


text:
    2003 SD 44
    STATE of South Dakota, Plaintiff and Appellee, v. Duane SMITH, Defendant and Appellant.
    No. 22316.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided April 23, 2003.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Kevin Lewis, Pennington County Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Duane Smith appeals his conviction for Driving under the Influence (DUI). We affirm.

FACTS AND PROCEDURE

[¶ 2.] On August 2, 2001, Trooper Slade Ross received a dispatch that a vehicle had left 1-90 and was upside down in the median. Upon arriving at the scene, Trooper Ross made contact with Smith who admitted to being the driver of the vehicle. Smith followed Trooper Ross to his patrol car to prepare an accident report. Trooper Ross noticed that Smith’s eyes were bloodshot; he swayed as he stood; his actions were slow and deliberate; and, his gait was unsteady. While the two were seated in the patrol car Trooper Ross noticed an odor of alcohol. Smith then admitted to consuming three mixed drinks, the last being approximately 10 minutes prior to the accident.

[¶ 3.] Trooper Ross requested Smith to perform two field sobriety tests: the alphabet and number count tests. Smith missed one letter on the alphabet test and successfully completed the number count test. Smith then agreed to submit to a blood alcohol test. Smith’s blood alcohol content was .151 percent.

[¶ 4.] A jury determined that Smith was guilty of DUI. Following a court trial he was also found guilty as a habitual offender under the part II information. Smith had previously been convicted of DUI in 1994 and 2001. Smith appeals.

ANALYSIS

ISSUE ONE

[¶ 5.] Whether the evidence was sufficient to sustain a conviction for DUI.

[¶ 6.] Smith’s challenge to the sufficiency of the evidence is based on an alternative version of what happened during the time prior to the vehicular accident. Smith’s girlfriend testified that he had only three drinks that night. She also testified that Smith wore dentures and that accounted for the smell of alcohol on his breath. The other factors which prompted further investigation and indicated DUI, such as the staggered walk and impaired coordination, were attributed to the automobile accident. Smith also challenged the results of the blood test because if he only had three drinks that evening — that would not be enough to support the results obtained. We find this argument to be without merit.

[¶ 7.] The jury listened to both versions of events and determined Smith guilty. Based on the results of the blood alcohol content, the jury heard evidence that in fact Smith .had the equivalent of thirteen shots of alcohol. Viewing the evidence and its inferences most favorable towards upholding the verdict, as we are required to do, there is ample support for the jury’s verdict. See State v. Chavez, 2002 SD 84, ¶ 23, 649 N.W.2d 586, 594. There is no justification on this record to cast aside that verdict.

ISSUE TWO

[¶ 8.] Whether the trial court erred in requiring Smith to reimburse the county for the expert witness fees of a forensic chemist.

[¶ 9.] The trial court ordered Smith to reimburse the county $250 in costs for the witness fees of Dr. Looyenga, a forensic chemist. Smith contends that SDCL 23A-27-26 bars recovery of this witness fee. That statute provides:

In all criminal actions, upon conviction of the defendant, the court may adjudge that the defendant pay the whole or any part of the costs of that particular prosecution in addition to the liquidated costs provided by § 23-3-52. However, the costs shall not include items of governmental expense such as juror’s fees, bailiffs fees, salaries and expenses of special agents, and reporter’s per diem. Payment of costs may be enforced as a civil judgment against the defendant.

(emphasis added). Smith asserts that Dr. Looyenga, a forensic chemist, is a special agent within the meaning of SDCL 23A-27-26 and his witness fees are therefore not recoverable.

[¶ 10.] The State contends that SDCL 32-23-17 is the controlling authority. That statute provides:

In the case of a conviction under this chapter [driving under the influence] the costs accrued for the withdrawal and chemical analysis of blood or other bodily substance, and witness fees and expenses in connection therewith, shall be taxed by the court as costs in the action and shall, if the county is to have a hen for fees paid to counsel for an indigent, be included in the lien filed; otherwise it shall, with such other costs as the court imposes, be entered in the judgment as provided in chapter 23A-27.

(emphasis added).

[¶ 11.] A “statute with more specific language relating to a particular subject will prevail over the general terms of another statute.” In re Guardianship for T.H.M., 2002 SD 13, ¶7, 640 N.W.2d 68, 71. SDCL 32-23-17 is contained in the chapter specifically relating to DUI convictions. Its provisions state that the witness fees in connection with the chemical analysis of blood relating to a DUI conviction are recoverable. Whereas, SDCL 23A-27-26 is a general provision relating to criminal procedure. Pursuant to SDCL 32-23-17 the costs were properly awarded.

ISSUE THREE

[¶ 12.] Whether the trial court improperly considered a past DUI conviction

[¶ 13.] Smith alleges that a prior conviction which occurred in 1994 is void for enhancement purposes. At the time of that conviction; SDCL 32-23-4.1 contained a five-year look back period for sentence enhancement. However, the legislature subsequently amended the look back period to ten-years in 2001. See SDCL 32-23-4.1. Smith alleges that use of this conviction for enhancement purposes violates due process and is an ex post facto application of the law. This exact argument was recently rejected by this Court in State v. Arguello, 2002 SD 157, 655 N.W.2d 451.

[¶ 14.] Though counsel here did not have the benefit of the Arguello decision, this Court expressly determined:

SDCL 32-23-4.1 operates prospectively, applying past convictions to determine the punishment for a conviction that occurs down the road. At all times, the punishment is for the then existing conviction and not for the prior convictions.

Id. ¶ 13. The legislative modification and its subsequent application to a repeat offender does not violate the constitution. Id. ¶ 14.

[¶ 15.] We affirm.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, participating.