author: GILBERTSON, Chief Justice.

text:
    2004 SD 18
    STATE of South Dakota, Plaintiff and Appellee, v. David McCRARY, Defendant and Appellant.
    No. 22701.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Feb. 11, 2004.

      Lawrence E. Long, Attorney General, Becky A. Janssen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff And appellee.
    Rena M. Atchison of Abourezk Law Firm, Rapid City, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] A grand jury indicted David McCrary (McCrary) on one count of Rape in the First Degree and three counts of Sexual Contact with a Child under Sixteen. Pursuant to a plea agreement, McCrary pleaded guilty to two counts of Child Abuse. The trial court sentenced McCrary to serve two consecutive ten-year sentences in the South Dakota State Penitentiary, with the second ten-year sentence suspended on several conditions. McCrary now appeals and challenges several aspects of his plea agreement and sentencing. We affirm in part, reverse in part, and remand for resentencing.

FACTS AND PROCEDURE

[¶ 2.] In February of 1999, T.M., the mother of D.M., contacted a sexual abuse hotline in Rapid City because she believed D.M. had been sexually abused by D.M.’s father, McCrary. The hotline proceeded to contact Social Services and law enforcement. Over the next year and a half, T.M. continued to make sexual abuse allegations against McCrary concerning D.M.

[¶ 3.] In December of 2000, the State filed an abuse and neglect proceeding against both McCrary and T.M. Pursuant to this proceeding, the circuit court recommended counseling for D.M. One month later, D.M began to attend weekly or biweekly therapy sessions with Dr. Tom Bosworth (Dr. Bosworth). At this time, D.M. was approximately three and a half years old. Over the course of several therapy sessions and during an interview conducted by Lora Hawkins of the Child Advocacy Center of the Black Hills, D.M. began to provide details concerning instances of sexual abuse perpetrated on her by McCrary.

[¶ 4.] On October 11, 2001, a grand jury indicted McCrary on one count of Rape in the first degree in violation of SDCL 22-22-1(1) and three counts of Sexual Contact with a Child Under Sixteen in violation of SDCL 22-22-7. McCrary pleaded Not Guilty to all charges. In the proceedings that followed, the trial court conducted numerous evidentiary hearings and heard several motions by both McCrary and the State.

[¶ 5.] Nearly a year later, on August 26, 2002, McCrary entered into a plea agreement with the State. By the terms of the agreement, McCrary pleaded guilty to two counts of felony Child Abuse contrary to SDCL 26-10-1. In exchange, the State agreed to remain silent at sentencing except for introducing a statement from the victim, D.M. On November 1, 2002, the trial court sentenced McCrary to two consecutive ten-year sentences in the South Dakota State Penitentiary. The court suspended the second ten-year sentence pending several conditions. McCrary now appeals his sentence and raises the following issues:

1. Whether the trial judge should have recused himself from sentencing.
2. Whether the State’s conduct at the sentencing hearing violated the plea agreement.
3. Whether the nature of the evidence considered by the trial court at sentencing created reversible error.
4. Whether the trial court’s self-initiated contact with Dr. Bosworth created reversible error.

Affirmed in part and reversed in part.

STANDARD OF REVIEW

[¶ 6.] In Lodermeier v. Class, we set out the standard we utilize in reviewing claims alleging bias by a trial judge:

Foremost, we have held that “only personal bias or prejudice [by a trial judge], as distinguished from judicial predilection, constitutes a disqualifying factor.” State v. Lohnes, 432 N.W.2d 77, 83 (S.D.1988) (citing State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976)). This actual bias must come from an extrajudicial source, which means the judge’s rulings were based on something learned other than at trial. Lohnes, 432 N.W.2d at 83. Accord State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982). Such bias will be judged by a reasonable person standard, McKinley v. Iowa Dist. Court for Polk Cty., 542 N.W.2d 822, 827 (Iowa 1996), but a judge’s decision to stay on a case will be affirmed unless there is bias or prejudice shown as a matter of law. Lohnes, 432 N.W.2d at 83; State v. Shepard, 239 Neb. 639, 477 N.W.2d 567, 571 (1991) (holding there is a heavy burden to overcome a presumption of judicial impartiality).

1996 SD 134, ¶ 27, 555 N.W.2d 618, 626 (footnote omitted).

[¶ 7.] We have consistently recognized the contractual nature of plea agreements, and we employ general contract principles in our review. State v. Stevenson, 2002 SD 120, ¶ 9, 652 N.W.2d 735, 738 (citation omitted). Therefore, “[wjhether a contract has been breached is an issue of fact for the trier of fact to resolve.” Id. (citing Moe v. John Deere Co., 516 N.W.2d 332, 335 (S.D.1994)). We review the trial court’s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25.

[¶ 8.] Trial courts enjoy wide latitude in determining the applicable sentence for a defendant. State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17 (citation omitted). In order to determine the appropriate sentence, the “sentencing court should ‘acquire a thorough acquaintance with the character and history of the man before it.’ ” Id., ¶ 16 (quoting State v. Hinger, 1999 SD 91, ¶ 21, 600 N.W.2d 542, 548 (citation omitted)). Therefore, we have held that sentencing courts may consider an extremely broad range of evidence in order to familiarize itself with a particular defendant. State v. Arabie, 2003 SD 57, ¶ 21, 663 N.W.2d 250, 257. This consideration may include “inquiry into ‘uncharged conduct or even conduct that was acquitted.’ ” Id. (citing U.S. v. Schaefer, 291 F.3d 932, 944 (7th Cir.2002)).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether the trial judge should have recused himself from sentencing.

[¶ 10.] For his first point of error, McCrary contends the trial court should have recused itself from the sentencing hearing. In support of his claim, McCrary argues that the court “clearly became biased towards [McCrary] throughout the proceedings,” and because it heard evidence presented by the state in violation of the plea agreement. We address these claims separately.

[¶ 11.] a. Personal Bias Towards McCrary

[¶ 12.] McCrary believes the trial court became personally biased towards him during the proceedings, resulting in the deprivation of his due process rights at the sentencing hearing. McCrary alleges the court manifested its bias against him in several ways throughout the proceedings. After reviewing the record before us, we do not believe McCrary has overcome the presumption of judicial impartiality based upon the factual allegations contained in this issue.

[¶ 13.] To demonstrate bias, McCrary first alleges the trial court made several inappropriate “jokes” during the proceedings concerning its lack of ability to sentence McCrary to death or life imprisonment. McCrary also claims the court spoke with one Bishop Kelly regarding its belief in McCrary’s guilt concerning the sexual abuse of D.M. McCrary, however, fails to cite to the record for support of his claims. As we have consistently recognized, “[t]he settled record is the sole evidence of the circuit court’s proceedings, and, when confronted with an incomplete record, our presumption is that the circuit court acted properly.” State v. Jones, 416 N.W.2d 875, 878 (S.D.1987) (citation omitted). As the party asserting error, McCrary had the burden “of ensuring an adequate record.” State v. Cates, 2001 SD 99, ¶ 18, 632 N.W.2d 28, 36 (citation omitted). At sentencing, the trial court specifically denied making such inappropriate statements, and, furthermore, Bishop Kelly never confirmed a conversation in which the court made inappropriate comments. Because McCrary failed to support his allegations with citation to the record, we presume the trial court acted properly.

[¶ 14.] Next, McCrary believes the trial court demonstrated bias when it declined to grant a continuance due to the unavailability of two of McCrary’s witnesses. McCrary fails to explain how the denial of his motion for continuance shows bias. Instead, he simply lists this as an example of the court’s bias against him without laying out an argument to support this claim or citing to the settled record. We review the grant or denial of motion for continuance under the abuse of discretion standard. State v. Schladweiler, 436 N.W.2d 851, 853 (S.D.1989). Here, without citation to the record or an argument of how the denial of McCrary’s motion for continuance shows bias, we clearly cannot find the trial court abused its discretion.

[¶ 15.] According to McCrary, the trial court further showed his bias against him by questioning his witnesses and experts at sentencing “as though the trial court was advocate for the prosecution.” Once again, McCrary fails to cite to the record in support of this claim. Furthermore, McCrary did not object to any of the court’s questions. “Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level.” State v. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d 200, 203. Generally, parties must object to specific court action and state the reason underlying their objection so that the circuit court has an opportunity to correct any error. State v. Dufault, 2001 SD 66, ¶ 7, 628 N.W.2d 755, 757; State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763. McCrary had ample opportunity to object to the trial court’s questions at sentencing, and thus did not preserve this claim for our review.

[¶ 16.] For his next example of personal bias, McCrary alleges that the trial court solicited and invited ex parte communication with Dr. Janz, an expert witness. McCrary cites to Black’s Law Dictionary for the proposition that “[a] judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.” BLACK’S LAW DICTIONARY 262 (2nd Pocket Ed. 2001). As to Dr. Janz, we are unable to find evidence in the record of such conduct. At the sentencing hearing, the following exchange occurred between McCrary’s counsel and Dr. Janz:

DEFENSE COUNSEL: Now, there have been a couple of telephone conversations between yourself and the Court in various aspects. If you would please just discuss what contacts you’ve already had with the Court.
DR. JANZ: I believe that Judge Tice made the initial referral for this last evaluation. And I believe that there was one phone call several weeks later I’m going to guess. I don’t recall any more of the content. I didn’t take notes on that conversation. I honestly don’t recall what — what the focus of that conversation was.

Without further evidence, we fail to see how any such conversation between the court and Dr. Janz adversely affected McCrary or was initiated for the benefit of the prosecution. Indeed, Dr. Janz’s testimony was generally favorable to McCrary.

[¶ 17.] Finally, McCrary alleges the trial court manifested its personal bias against him when the court questioned Defense Counsel about excessive attorney fees in front of him. In his brief, McCrary attached a copy of a letter from Defense Counsel to the trial court. In the letter, Defense Counsel acknowledges that the conversation about fees occurred off the record but expresses concern that the conversation happened “within earshot and eyesight of my client.” The state argues, however, that the trial court was only expressing concerns regarding excessive expert fees and not attorney’s fees. At the sentencing hearing, the court addressed this concern saying:

Okay. Let me add one more thing, too. Reference was also made to the bill in this case and the Court would also note that I have made it clear to counsel for the defendant, Miss Atchison, that I was disappointed in the extent to which the hearing on hearsay and Daubert took 14 hours of court time to try, and I did in a negative way suggest that that was not something which this Court appreciated. I don’t think I made any real arduous comment. But I did share with her that caused the Court some reservations.

Taken by itself, without further evidence in the record, the court’s statement and Defense Counsel’s letter do not establish bias as a matter of law against McCrary. See Lodermeier, 1996 SD 134, ¶27, 555 N.W.2d at 626 (bias must be established as a matter of law). We do not believe these facts and other unsupported accusations establish that the trial court was personally biased against McCrary.

[¶ 18.] b. Bias As a Result of Hearing Aggravating Evidence

[14] [¶ 19.] McCrary next asserts that the sentencing court became unfairly biased against him when it received information which tended to aggravate his sentence in violation of the plea agreement. McCrary’s assertion that the court heard impermissible aggravating evidence revolves around two letters attached to his brief. A social worker wrote these letters on D.M.’s behalf. According to McCrary, one of these letters was impermissible because it contained the following excerpt:

It is the author’s request that Mr. McCrary receives the maximum sentence to the charges of two counts of Child Abuse to ensure that he take advantage of services available to him in prison as well as protecting the community, other children, and achieving some justice for [D.M.].

[¶ 20.] The State argues, however, that the letter with the offending language was only a draft. Indeed, the second letter dated one day after the first does not contain the above language. At the sentencing hearing, neither party mentioned the letter(s) or objected to them. Furthermore, neither letter is contained in the official record, including the pre-sentence report. As stated above, the official record is our only evidence of the trial court’s proceedings. Jones, 416 N.W.2d at 878. Because the letter to which McCrary objects is not contained in the official record, we must conclude that the trial court did not consider it in making its sentencing decision. Cates, 2001 SD 99, ¶ 18, 632 N.W.2d at 36.

[¶ 21.] In summary, we believe McCrary has failed to carry his heavy burden of showing that the trial court was biased against him as a matter of law for the matters asserted herein. In fact, almost all of McCrary’s assertions are without support in the record, a situation in which we must presume the trial court acted correctly. Id.

[¶ 22.] 2. Whether the State’s conduct at the sentencing hearing violated the plea agreement.

[¶ 23.] For his second point of error, McCrary argues the State violated the terms of the plea agreement and, therefore, he should be re-sentenced. First, McCrary argues that the letter discussed above, written by a social worker on behalf of D.M., violated the terms of the plea agreement because it recommended a specific sentence for the defendant. However, as we have already recognized, this letter is not part of the official record, including the pre-sentence report. Neither party mentioned or objected to the letter at sentencing. Accordingly, we presume the trial court did not consider this letter in its sentencing decision. Id.

[¶ 24.] Next, McCrary points out that at a hearing prior to sentencing the State indicated it intended to call D.M.’s foster parent to testify as well as making a statement itself. That McCrary would even argue this on appeal is dubious because the State never actually called the foster parent or presented a statement at sentencing. Thus, it is without merit and need not be addressed.

[¶ 25.] Third, McCrary contends the state violated the terms of the plea agreement when it cross-examined defense witnesses at sentencing. Whether or not the State violated the plea agreement when it cross-examined defense witnesses is a question of fact. Stevenson, 2002 SD 120, ¶ 9, 652 N.W.2d at 738. The trial court found this cross-examination did not violate the terms of the plea agreement, and we review this decision under the clearly erroneous standard. City of Deadwood, 2000 SD 29, ¶ 9, 607 N.W.2d at 25.

[¶ 26.] At sentencing, the following relevant exchange occurred:

THE COURT: Question is you’re going to be calling witnesses and the State has indicated and I would anticipate as a matter of course typically the State would be expected to cross-examine witnesses for the purpose of bringing out evidence that might be — shed light on the direct testimony of that witness. What’s your position on that?
DEFENSE COUNSEL: Well, your Honor, if I don’t go into specific areas with that witness, I would expect that those areas could not be touched upon at all.
THE COURT: The rules of evidence would be applicable. That’s, of course, a very subjective area and so I can’t tell you what would or would not open doors.
DEFENSE COUNSEL: Understood, Your Honor.
THE COURT: Okay. Does that meet both counsels’ understanding of the plea agreement and the process?
DEFENSE COUNSEL: As long as there is no form of presenting information in aggravation, Your Honor, I believe that we are complying. However, to me remaining silent means that the State was to remain silent throughout. I believe that cross-examination should not even be permitted. However, I understand that that’s what this Court is directing and—
THE COURT: I would say that typically that would be — as long as it’s not done in an aggravation process but done for clarification of evidence presented. And that’s a very touchy area for the State to walk in, but I trust we can track those directions.

From this exchange, it is clear the trial court interpreted the plea bargain as allowing the State to cross-examine McCrary’s witnesses only to the extent of the areas covered by the defense. Although defense counsel expressed some initial reservations with this interpretation, she clearly did not formally object to the interpretation. Thereafter, she fully participated in the evidentiary portion of the hearing that preceded sentencing. McCrary did not object to any of the specific questions asked by the State during cross-examination, a fact which suggests defense counsel did not believe the State had overstepped the boundaries set by the trial court. Given the record before us, and considering McCrary’s failure to specifically object to this interpretation, we do not believe the trial court abused its dis-ci’etion by allowing the State to cross-examine McCrary’s witnesses.

[¶ 27.] 3. Whether the nature of the evidence considered by the trial court at sentencing created reversible error.

[17] [¶28.] McCrary asserts his sentence should be reversed because the trial court relied upon unreliable evidence in detex-mining his sentence. Specifically, McCrary believes that the trial court im-permissibly considered evidence of his sexual abuse of D.M. as well as B.M., his stepsister, when it sentenced him to two ten-year sentences in the South Dakota State Penitentiary for felony child abuse.

[¶ 29.] We have continuously recognized the wide discretion of sentencing courts. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d at 17. In Arabie, we stated:

In determining the type and extent of punishment to be imposed, the sentencing judge may exercise wide discretion with respect to the type of information used as well as its source. He should have full access to the fullest information possible concerning the defendant’s life and characteristics. Information which should be available to the court includes general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record[.]
It is obvious from these and other decisions that the sentencing judge is vested with the authority and burdened with the responsibility to inquire into the various aspects of each defendant’s case before sentence is pronounced.

2003 SD 57, ¶ 21, 663 N.W.2d at 257 (citation omitted). This relevant information may include “uncharged conduct or even conduct that was acquitted.” Id. (citation omitted).

[¶ 30.] Here, after being indicted on Rape in the First Degree and three counts of Sexual Contact with a Child Under Sixteen, McCrary pleaded guilty to two counts of felony Child Abuse in violation of SDCL 26-10-1. During the proceedings, the trial court heard evidence that McCrary had sexually abused his daughter, D.M., as well as testimony from B.M., McCrary’s step-sister, that he had sexually abused her several years ago when she was a child. McCrary disputed this testimony and, except for the ex-parte communication addressed in Issue Four, had the opportunity to present evidence to counter these allegations of sexual abuse. During this time, the trial court had the opportunity to evaluate and gauge the relative credibility of each witness. Subject to our holding in Issue Four, we conclude the balance of this issue is affirmed.

[¶ 31.] 4. Whether the trial court’s self-initiated contact with Dr. Bos-worth created reversible error.

[¶ 32.] At sentencing the trial court made the following statement:

I took it upon myself to call Mr. Bos-worth [the victim’s therapist] and ask him one question and that was whether or not he had reason to believe ... that the child was not molested by the father and his answer was no.

Any contact by the trial court with a witness or potential witness other than for scheduling or merely procedural matters should be accompanied with full due process protection for both parties such as advance notice and an opportunity to be heard SDCL ch. 16-2. Code of Judicial conduct, Canon 3B(7). “A judge must not independently investigate the facts in a case.” Canon 3B(7)(a) cmt. Clearly this prohibition was not followed in this case and we need not ponder the effect of this ex parte contact. In O’Connor v. Leapley, 488 N.W.2d 421, 423 (S.D.1992) we held that “[i]f an ex parte communication is invited or initiated by the judge, no prejudice needs to be shown ... Prejudice is implicit in the judge’s invitation or initiation of an improper ex parte communication.” (citing State v. Barker, 227 Neb. 842, 420 N.W.2d 695, 699 (1988)).

[¶ 33.] The roles of the various participants in the judicial process are well defined by the judicial canons and the attorney’s rules of professional responsibility. A judge simply cannot be both a judge and a prosecutor searching out facts favorable to the state without abandoning his or her judicial neutrality. By initiating communication with Dr. Bosworth, that is what happened in this case.

CONCLUSION

[¶ 34.] We affirm Issues One, Two and Three and reverse and remand to the Seventh Judicial Circuit on Issue Four for re-sentencing by a different judge.

[¶ 35.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices concur.

      . In addition, a review of the sentencing transcript shows that the court’s questions brought out predominately positive testimony in regards to McCrary.

      . At the sentencing hearing, Dr. Janz testified that he believed McCrary was treatable on an outpatient basis.

      . For further particulars concerning the dispute over attorney’s fees see: Atchison v. Circuit Court for the Seventh Judicial Circuit, 2004 SD 20, 676 N.W.2d 814.

      . Counsel for McCrary makes many serious accusations against the trial court. None are supported by citation to the record. We have clearly condemned this most serious type of appellate omission. Hofmeister v. Sparks, 2003 SD 35, 660 N.W.2d 637 n. 3. In its brief, the State repeatedly pointed out this lack of citation to the record by McCrary. If these crucial omissions were inadvertent, McCrary had the opportunity to correct this flaw in his reply brief. Yet McCrary failed to file a reply brief although he had the full right to do so. Absent this, there remain two possibilities as to the source of the accusations. The first is that counsel failed to develop the record to provide evidentiary support for the accusations against Judge Tice. In re Discipline of Dorothy, 2000 SD 23, ¶ 42, 605 N.W.2d 493, 505. The second is that there is no evidentiary support for the accusations. In In re Discipline of Eicher, 2003 SD 40, ¶ 27, 661 N.W.2d 354, 363, we cautioned " 'the efficient and orderly administration of justice cannot be successfully carried on if we allow attorneys to engage in unwarranted attacks on the court [or] opposing counsel ... Such tactics seriously lower the public respect for ... the Bar.’ " (citing In re Converse, 258 Neb. 159, 602 N.W.2d 500, 508 (1999)). See also Dorothy, 2000 SD 23, ¶¶ 47-48, 605 N.W.2d at 507-508. As this is a criminal appeal, a determination of the basis for a lack of citations to the record is beyond the scope of this proceeding.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2004 SD 19
    Veronica L. DUFFY, Petitioner, v. CIRCUIT COURT for the SEVENTH JUDICIAL CIRCUIT, Respondent.
    No. 22837.
    Supreme Court of South Dakota.
    Argued on Nov. 18, 2003.
    Decided Feb. 11, 2004.

      Veronica L. Duffy, Rapid City, South Dakota, Pro Se petitioner.
    Lawrence E. Long, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent.
   MEIERHENRY, Justice.

[¶ 1.] The Seventh Judicial Circuit Court appointed Veronica Duffy, attorney at law, as counsel in four cases involving two indigent persons. Duffy submitted verified vouchers with itemized charges for her fees in each case. Circuit Court Judge Janine Kern reduced the bills by a total of $5957.41. Fees for the four cases were reduced as follows: (1) CRI02-617 from $7,190.73 to $6,100, (2) CRI02-3791 from $2,187.30 to $1,356.19, (3) A02-0530 from $5,281.29 to $3,585.15, and (4) CRI 02-2049 from $6,633.84 to $4,294.41. Duffy requested an explanation for Judge Kern’s reductions. She also asked that the judges of the Seventh Judicial Circuit review Judge Kern’s decision. In response, Judge Kern provided Duffy with copies of the original vouchers in two of the cases marked with highlighting showing some items and fees reduced and some struck completely, but provided no explanation for the reduction in the other two cases. As requested, the judges of the Seventh Judicial Circuit scheduled a hearing. Duffy was to submit all evidence in writing prior to the scheduled hearing and was informed that she would be allowed fifteen minutes to present oral argument. A panel of four judges conducted the hearing. The panel issued a memorandum decision affirming the reduced fees. Duffy petitioned this Court for Writ of Certiorari. Review of Court Appointed Attorney Fees by Writ of Certiorari

[¶ 2.] Counsel for the judges of the Seventh Judicial Circuit challenges whether this Court has jurisdiction to review the lower court’s decision on attorney fees. Counsel claims that this Court’s jurisdiction on a writ of certiorari is limited to determining whether a lower court had the power to act and not whether the court’s decision was correct. Counsel further argues that the lower court’s decision can only be reviewed by direct appeal. Duffy claims that this Court has jurisdiction in the form of a writ of certiorari because the lower court has exceeded its jurisdiction by committing a gross abuse of discretion in disallowing reasonable and just compensation and is, therefore, subject to a writ of certiorari.

[¶ 3.] A writ of certiorari is an equitable remedy available when an inferior court exceeds its jurisdiction “and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.” SDCL 21-31-1. The scope of review “cannot be extended further than to determine whether the inferior court ... has regularly pursued the authority of such court.” SDCL 21-31-8. Other courts have looked at this issue and determined that because of the nature of the claim, a writ of certio-rari is the proper procedure to review court appointed attorney fees. Bye v. District Court, 701 P.2d 56, 59 (Colo.1985); Norton v. Iowa Dist. Court for Cedar County, 554 N.W.2d 301, 303 (Iowa App.1996); Green v. Iowa Dist. Court for Mills County, 415 N.W.2d 606, 607 (Iowa 1987).

[¶ 4.] A trial court’s review of an attorney’s fee for a court appointment is collateral to an underlying case. The Rules of Appellate Procedure set forth the types of judgments and orders which can be appealed. SDCL 15-26A-3. In this case, the Order affirming the reduction in fees is not a separately filed case and bears the case number of the criminal cases for which the services were provided. The only category of appeal under which it could conceivably fall is SDCL 15-26A-3(4) as a “final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment.” Id.

[¶ 5.] Yet, limiting review to a direct appeal rather than by writ of certiorari presents its own set of unique circumstances. For example, the court’s action in reducing the fee does not start out as a lawsuit in the usual way by one party serving a summons and complaint. Neither the attorney nor the court is a party in the underlying case. The attorney is involved only because the court ordered the attorney to represent the indigent party. When the underlying case is appealed, the attorney fee issue may not be ripe for appeal because the attorney’s services have not been completed. Additionally, the attorney on appeal may not be the same attorney that tried the case below.

[¶ 6.] The trial court’s review of court appointed attorney fees is more in the form of an administrative function collateral to the underlying case. It is unlike other cases which allow a court to award attorney fees as part of the judgment to be paid by the opposing party, such as in a divorce or condemnation action. Court appointed attorney fees are not paid by the opposing party but from the county treasury. The procedures governing the submission, approval and review of attorney fees is set by the presiding judges and is separate from the underlying case. SDCL 23A-40-8, 23A-40-9.

Scope of Review

[¶ 7.] Courts that have found a writ of certiorari an appropriate means to bring the issue before a higher tribunal have limited the scope of review. Lunde v. Ruigh, 356 N.W.2d 566, 569 (Iowa 1984); Bye, 701 P.2d at 60 (Colo.1985). The Iowa Supreme Court limits review to whether the lower court used the correct legal standard and whether it abused its discretion in applying the correct legal standard. Lunde, 356 N.W.2d at 569. The Iowa Court stated:

[TJhere are two types of challenges to trial court orders determining compensation for court-appointed counsel; (1) those asserting that an incorrect legal standard has been applied in fixing fees; and (2) those asserting an abuse of discretion in the application of the proper legaT standard. We pointed out in Walters that:
Our scope of review depends on what part of the challenge is being considered. Plaintiffs assertion that an incorrect legal standard was applied is reviewed on error. When an incorrect standard is applied we remand for new findings and application of the correct standard. When a correct legal standard is applied our review is greatly circumscribed; we affirm unless the trial court’s discretion “was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Lunde, 356 N.W.2d at 569 (citing Walters v. Herrick, 351 N.W.2d 794, 796 (Iowa 1984)). The Court further clarified “an abuse of discretion” challenge as limited to whether the lower court “abused its discretion .to the extent that it acted illegally in setting the fee.” Green, 415 N.W.2d at 609.

[¶ 8.] Similarly, Colorado courts limit a review of court appointed attorney fees to whether a lower court “has exceeded its jurisdiction or abused its discretion in exercising its functions, and appeal is not an appropriate remedy.” Bye, 701 P.2d at 59 (citing Prudential Property & Casualty Insurance Co. of America v. District Court, 617 P.2d 556, 558 (Colo.1980)).

[¶ 9.] We determine that Duffy has properly brought this matter as a writ of certiorari because in this case, “there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.” SDCL 21-31-1. However, the scope of review is limited to whether the trial judge and/or the Seventh Circuit court “has regularly pursued the authority of such court.” SDCL 21-31-8. In order to determine whether the court has “regularly pursued” its authority, it is important to review the background of court appointed attorney fees and the court’s authority in approving the fees under South Dakota law.

Background of Compensation for Court Appointed Attorney Fees

[¶ 10.] We begin with the premise that appointed counsel serves an invaluable service in maintaining the integrity of our criminal justice system. The Sixth Amendment to the United States Constitution guarantees a right to counsel for criminal defendants. The importance of this right has been expressed by the United States Supreme Court in numerous cases. It was succinctly explained in U.S. v. Cronic:

An accused’s right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases “are necessities, not luxuries.” Their presence is essential because they are the means through which other rights of the person on trial are secured. Without counsel, the right to a trial itself would be “of little avail,” as this Court has recognized repeatedly. “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other right he may have.”

466 U.S. 648, 653-54, 104 S.Ct. 2039, 2043-44, 80 L.Ed.2d 657 (1984). In fact, criminal defendants possess the right of effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). One way South Dakota meets this demand is to appoint private counsel to represent indigent defendants. SDCL 23A-40-8; SDCL 23A-40-9. Athough lawyers are encouraged to provide public services, it has long been realized that lawyers cannot afford to provide effective assistance of counsel to indigent defendants without compensation.

[¶ 11.] At least since Gideon v. Wainwright, state courts, county commissioners, and attorney groups have been challenged by how best to provide indigent clients with their Sixth Amendment right to counsel. 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In South Dakota, the legislature has provided assistance of counsel for indigents since 1901. The legislature has amended the statutes several times; however, since 1901 it has always included the language that appointed counsel shall receive “a reasonable and just compensation.” In addition to the legislative responses to appointed counsel legal fees, joint committees have been formed periodically to study the issues surrounding the fees. One concern was that each circuit and judge had its own method of determining fees. Some believed that the fee schedule should be uniform across the state.

South Dakota Rules for Compensation of Court Appointed Counsel

[¶ 12.] In 1998, a committee composed of legislators, judges and lawyers studied appointed counsel fees and proposed rules for compensation. The proposed rules were approved by the presiding judges of the judicial circuits in November 1999 to be effective January 1, 2000. The rules set forth the duties of appointed counsel and rate of compensation as well as a procedure to review a court’s reduction of fees. Further, the rules were to be uniform for all circuits.

Approval or Disapproval of Attorney’s Fees and Costs

[¶ 13.] In conformity with the Rules for Compensation of Court Appointed Counsel adopted by all judicial circuits, the presiding judge of the Seventh Judicial Circuit entered Standing Order 00-1. Standing Order 00-1 duplicates the Rules for Compensation. As a right under the Rules and Order, an attorney who is dissatisfied with the amount of compensation allowed by the court may ask for a hearing. The procedure for review is set as follows:

A. If the full amount of the voucher or statement for fees by counsel is not approved by the trial judge, the trial judge must explain, either orally or in writing, the reasons for change or modification of the statement or voucher submitted by counsel.
B. Appeal. If the attorney is dissatisfied with the amount of compensation allowed by the judge presiding in the case, the attorney may request that all judges in that circuit review the claim for compensation and hold a hearing thereon. A decision by the majority of the judges in that circuit shall become the amount of the fees and costs authorized.

South Dakota Rules for Compensation of Court Appointed Counsel. The appeal hearing provides attorneys with the opportunity to explain and defend the reasonableness of them submitted fees to all of the judges in the circuit.

Factors in Determining Reasonableness of Attorney Fees

[¶ 14.] In addition to the Rules, this Court has set forth a number of factors for judges to consider in determining the reasonableness of attorney fees. In Tappe we established a two-pronged test for court appointed attorney fees. First, the billed services must be reasonably necessary and second, the amount must be reasonably valued. 326 N.W.2d at 894. We noted, however, in Tappe that rates for representing indigent clients are generally below the market rates charged to non-indigent clients. Id. at 894-95. We recognize that the per hour fee as currently established is still below the hourly rate attorneys charge. Duffy is not challenging the per hour rate of $69 effective at the time of the assigned cases. The lower court made no adjustments to the per hour rate.

[¶ 15.] The factors, as established in Tappe, that a court must consider when determining reasonableness are as follows: “time spent and services rendered, the attorney’s skills and experience, the complexity of the case, the attorney’s overhead costs, and the character and importance of the litigation.” Id. at 895. The Tappe Court noted the factors were not exclusive. Id. Since deciding Tappe, we have listed additional factors for a trial court to consider in determining what constitutes “reasonable” attorney fees. Some of the factors stem from the Model Rules of Professional Conduct. City of Sioux Falls v. Kelley, 513 N.W.2d 97, 111 (S.D.1994). The factors which are in addition to those enumerated in Tappe and are relevant to court appointments are: “the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly”; “the fee customarily charged in the locality for similar legal services”; “the time limitations imposed by the client or by the circumstances”; and “the experience, reputation, and ability of the lawyer or lawyers performing the services.” City of Sioux Falls v. Johnson, 2003 SD 115, ¶8, 670 N.W.2d 360, 362 (citing Kelley, 513 N.W.2d at 111) (quoting Model Rules of Professional Conduct, Rule 1.5). Another factor relevant to criminal cases and considered by other courts is the possible punishment involved. Hulse v. Wilfvat, 306 N.W.2d 707, 711 (Iowa 1981).

[¶ 16.] Based on the factors set forth in prior cases and the Model Rules of Professional Conduct, we conclude that when reviewing the reasonableness of court appointed attorney fees, a trial court must consider the following factors:

(1) the time spent and services rendered;
(2) the complexity of the case and difficulty of the questions involved;
(3) the character and importance of the litigation;
(4) the skill required to perform the legal service properly;
(5) the time limitations imposed by the client or by the circumstances;
(6) the fee customarily charged in the locality for similar legal services;
(7) the experience, reputation, and ability of the lawyer performing the services; and
(8) the possible punishment involved.

We gave further direction in Kelley on how to consider the factors starting by considering the time spent on the case. We said that no single factor should control:

The fee should not be based on any one single factor but all of these matters should be taken into consideration. The only requirement is that the fee which the court fixes in each ease must be reasonable for the services rendered.

Kelley, 513 N.W.2d at 111 (citing City of Bismarck v. Thom, 261 N.W.2d 640, 642 (N.D.1977) (quoting Morton County Board of Park Comm’nrs v. Wetsch, 136 N.W.2d 158 (N.D.1965))). We directed in Kelley that calculation of the fees must start with multiplying the attorney’s hours and the typical hourly fees but explained:

We are not under the illusion that a ‘just and adequate’ fee can necessarily be ascertained by merely multiplying attorney’s hours and typical hourly fees. However, we are convinced that this simple mathematical exercise is the only legitimate starting point for analysis. It is only after such a calculation that other, less objective factors, can be introduced into the calculus.

Kelley, 513 N.W.2d at 112.

[¶ 17.] Additionally, the trial court is entitled to look at the case as a whole in light of the calculations and factors. The trial court in using its independent judgment must acknowledge the “high standard of diligence and preparation which is demanded of counsel in criminal cases.” Hulse, 306 N.W.2d at 710. Although a court has the benefit of hindsight, it should not overlook the attorney’s perspective in preparing for the case. Id. at 709.

Trial Court Required to Explain Reasons for Reducing Fees

[ 18.] The trial court is required by rule to “explain, either orally or in writing, the reasons for change or modification of the statement or voucher submitted by counsel.” Supra at n. 9. In other attorney fees cases, we have required the trial court to make specific findings based on the factors. Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 793; Ridley v. Lawrence County Com’n, 2000 SD 143, ¶ 13, 619 N.W.2d 254, 259; Michlitsch v. Meyer, 1999 SD 69, ¶20, 594 N.W.2d 731, 735; Pengra v. Pengra, 429 N.W.2d 754, 757 (S.D.1988). Counsel is responsible for providing an itemized statement in order for the courts to review the charges; the court, in turn, should articulate its rationale for reducing the fee either by specific findings or a clear explanation addressing each of the reasonableness factors. See State v. Sidney, 66 Wis.2d 602, 225 N.W.2d 438 (1975).

Whether the Court Applied the Correct Legal Standard in Reducing Fees

[¶ 19.] Therefore, in determining whether a trial court “has regularly pursued its authority,” we examine if the court applied an incorrect legal standard or whether the court abused its discretion to the extent that it acted illegally in setting the amount. The attorney is entitled to “just and reasonable” compensation. The judge determines whether it is “just and reasonable.” In applying the correct legal standard, the court is required to explain orally or in writing the reasons for modifying the attorney’s submitted voucher considering the factors enumerated in this opinion. The attorney has the burden of proof to show that the trial court applied the incorrect legal standard or acted illegally in setting the amount.

[¶ 20.] In two of Duffy’s court appointed cases, her client, Kathryn Little was charged with two counts of felony child abuse. The two cases were assigned to Judge Kern. Little was also named as the respondent in an Abuse and Neglect petition over which Judge Davis presided. Little was severely mentally ill with severe borderline personality disorder and severe depression and had been diagnosed with an advanced stage of breast cancer. She attempted suicide and was committed to Human Services Center three times during Duffy’s representation. Duffy’s affidavit indicated that the State refused to plea bargain the criminal charges. As part of the defense preparation, Duffy claimed that several evidentiary and substantive issues arose which required research, briefing and interviewing of an expert.

[¶ 21.] Duffy was appointed to represent the defendant Lucas Wilson in two cases. In the one case, Wilson was charged with felony possession of methamphetamine, ingesting, possession of marijuana and drug paraphernalia which was assigned to Judge Kern. In the other case, Wilson was charged with Driving While Under the Influence (DUI) and felony Possession of Methamphetamine which was assigned to Judge Tice. Duffy claims that because of the time spent in preparation, she was able to obtain a favorable plea agreement wherein the State dismissed the felony charge and reduced the DUI to reckless driving, thus eliminating the need for a jury trial.

[¶22.] Duffy submitted itemized bills for each case which included expenses and the time spent on specific tasks billed at the authorized per hour rate. Judge Kern wrote Duffy a letter informing her that she had reduced the billings for the four cases involving clients Little and Wilson. In the letter, the judge indicated that the bills were “too high.” The judge acknowledged that the clients were difficult to work with and also recognized the skills and abilities of counsel. The entire content of the letter to Duffy is as follows:

Enclosed please find copies of the front page of your claims filed against Pennington County for provision of services as Court-appointed legal counsel for Ms. Little and Mr. Wilson. I have reduced your bills as indicated. I’m enclosing for your review the Rules of Compensation for Court-appointed Attorneys. If you are dissatisfied with the amount of compensation allowed you may request that all of the Judges in the Circuit review the Claim for Compensation and hold a hearing thereon. A decision by the majority of the Judges shall become the amount of fees and costs authorized.
I realize that both of these clients have been difficult but Mr. Wilson’s case did not proceed to trial and fees in the excess of $7,000.00 are simply too high. Similarly, Kathryn Littles’ case has not yet proceeded to trial and the bills are in excess of $5,000.00.
I have the greatest personal respect for your abilities and the vigor with which you represent your clients. However, we have a limited budget for Court-appointed attorney’s fees and the Court bears the duty and obligation of monitoring the fees expended.
Please do not hesitate to contact me further.
Sincerely, Janine M. Kern
Circuit Court Judge

Judge Kern’s explanation did not address the factors to be used in determining whether the fees were reasonable or how those factors entered into her decision to reduce Duffy’s fees. It is apparent from the letter that the county’s budget for court appointments played some part in her determination to cut the fees. Although understanding the sensitivity to county budgets, the courts have not recognized this as a factor in determining a reasonable attorney fee. The presiding judges have set the hourly fee paid to court appointed counsel below the amount an attorney would charge to private clients. Consequently, the fees paid for court appointments are already discounted by that reduced hourly charge.

[¶ 23.] Upon Duffy’s request, the judge provided her with a marked-up version of two of her submitted fees; no explanation accompanied the reduced fees. Judge Kern had struck at least 50 itemized charges by either crossing out the charge completely or by entering a lower figure. For example, Duffy billed 4 hours and 10 minutes for “preparation for child competency hearing; attended hearing; brief meeting with client after meeting.” The hearing, which had been noticed by the State, lasted 2 hours 40 minutes. Judge Kern highlighted the services, crossed out the fee of $282.90 which was based on the charge of $69 an hour for 4.1 hours and wrote in $138 (representing $69 an hour for 2 hours), thus allowing reimbursement for less time than the attorney spent at the hearing and none for preparation and meeting with her client. For the services “phone call from Matt Brown [State Attorney’s Office] regarding a plea agreement; phone call to client regarding the same,” Duffy billed $34.50 for one-half hour. This item was completely disallowed. Whether the reductions relate to any of the reasonableness factors is not apparent. Disallowing full compensation for a court hearing or for communications with one’s own client is questionable since an attorney’s professional responsibility would require it. For the fees pertaining to the Wilson files, the judge merely drew a line through the total amount and reduced it.

[¶ 24.] Judge Kern’s explanation for the reductions in the fees was not based upon the factors nor did the judge explain the reasons for the cuts adequately for any of the files. One of the bills the judge reduced was actually presided over by Judge Tice. Another of the cases was handled by Judge Davis. Judge Tice and Judge Davis would have been in a better position to determine the reasonableness of the fees in those cases.

[¶ 25.] A trial judge is required to explain the cuts based upon the reasonableness factors. Initially, all that Duffy received was the letter from Judge Kern indicating that the bills were too high. After requesting further explanation, Duffy received copies of the four vouchers all with the total claimed amount reduced. Two vouchers showed total or partial reductions of specific hourly charges. There were no communications in the record from either Judge Tice or Judge Davis prior to the panel’s review concerning the reductions.

[¶ 26.] The judge ' who presides over the case and determines that an attorney’s fees are unreasonable has an obligation to apply the correct legal standard when making that decision. The judge is also required to explain the reasons for reducing the fees based upon that standard. The legal standard is based upon the factors that this Court has addressed in prior cases. This does not mean, of course, that judges must explain a reduction of fees by counter-itemizing each line in an attorney’s bill. Judges may examine the bill as a whole and provide an explanation using the required factors. This was not done. Duffy asked for more explanation in order to present her justification to the review panel. Receiving only the Kern letter and reduced vouchers, Duffy attempted to present her justification to the panel. The only further explanation received by Duffy was the letter she received from the reviewing panel after the hearing. Without the explanation prior to the .hearing, Duffy was placed in a position of guessing at the rationale of the reductions. This is not the procedure contemplated by Tappe nor established by the Rules.

[¶ 27.] Nonetheless, Duffy provided the panel with evidence and explanation. Duffy explained, in detail, the necessity and justification for the time spent and her reasons for defending the cases in the manner she did. She submitted documents from the cases relevant to the bills, and she provided affidavits from practicing attorneys who were of the opinion that the time and activities she performed were reasonable. She was allowed a short oral argument to the panel. She pointed out in her appeal that she was at a disadvantage because without an explanation or rationale for the cuts, she was unclear what she needed to justify.

[¶ 28.] The panel of judges, consisting of Judge Kern, Judge Tice, Judge Davis and Judge Trimble, affirmed the fee reduction and wrote a letter. In its review of the cases, the panel recognized the Tappe decision and the factors listed therein.- The panel explained in its letter to Duffy why the reductions were appropriate. This is the first time that Duffy actually received a specific explanation for the reductions.

[¶ 29.] The panel determined that as to one of the Wilson cases, “[t]he case was neither unusually complex nor difficult. The defendant received a probationary sentence similar to that uniformly obtained by Defendants of this age in these circumstances.” The panel further concluded Duffy spent too much time and effort on suppression issues. The panel recognized that the judge presiding over the case should have been the one to review the bill; however, the panel concluded that Judge Tice had reviewed Judge Kern’s reductions and agreed to them. Although the panel appears to have considered the complexity of the cases, it failed to take into consideration the other factors in determining the reasonableness of the fee. The panel stated that it used its “collective legal experience” and its review of other coui’t appointed bills to find that Judge Kern did not abuse her discretion.

[¶ 30.] As to the criminal case against Little, the panel found the case not to be “extremely complicated” with “straight forward issues that are standard in any criminal cases.” The panel concluded as follows:

Judge Kern provided you with a highlighted copy of your bill showing line items reduced or deleted from your bill. You have now submitted detailed explanations for each entry. Even after reviewing your explanations we feel the changes, when reviewed in their totality, are unreasonably high. We do not doubt that you worked the hours reported but we find that the number of hours spent on the tasks accomplished are excessive.
We believe you to be a very competent and conscientious attorney. There will always be additional work that can be done in any case. The Court bears the burden and responsibility of monitoring court appointed fees while at the same time assuring constitutionally sufficient representation for indigent Defendants.

Although the panel attempted generally to address some of the reasonableness factors in Tappe, it did not address all of the factors or require the judges assigned to the cases to do so either.

[¶ 31.] This rule setting forth the procedure of reviewing court appointed attorney fees is a relatively new procedure and standard and one which this Court has not previously addressed. Therefore, the lower court did not have the benefit of our direction prior to the Duffy matter being raised. It is apparent that the judges in good faith attempted to follow the rule. However, there are several things about the process they used which do not meet the standard as set forth in this opinion.

[¶ 32.] The process used was flawed in several respects. First, the judge presiding over the cases, in the first instance, should have given the appointed attorney the explanation for the reductions specifically addressing the reasonableness factors. Secondly, the panel required Duffy to justify her bills without Duffy knowing-why they were being denied. The panel should have required each judge who presided over the case to give Duffy an explanation based upon the factors before conducting the review hearing. With those explanations, Duffy would have been able to address the factors and reductions in an attempt to justify her charges.

Remand to Apply Correct Legal Standard

[¶ 33.] With a writ of certiorari, we do not review whether the judge or panel’s decision is right or wrong. We are limited to determining whether the judge or panel regularly pursued its authority. We conclude that Duffy has met the burden of proof. The judges presiding over the cases, in the first instance, failed to apply the correct legal standard in determining whether Duffy’s fees were reasonable; consequently, the panel’s review also contravened its authority. By not applying the correct legal standard, the lower court has failed to “regularly pursue its authority.” We, therefore, remand for the Seventh Judicial Circuit to apply the correct standard and procedure. On remand, the trial judge who presided over each case should apply the correct legal standard by considering the factors and by giving an explanation based on those factors. If dissatisfied, Duffy has a right to request a review by all the judges of the Seventh Judicial Circuit.

Appellate Attorney fees

[¶ 34.] Duffy has requested attorney fees in conjunction with her Petition for Writ of Certiorari. Attorney fees can only be awarded if authorized by statute. SDCL 15-26A-87.3. At oral argument, Duffy claimed that this Court could award attorney fees if the trial court’s action was vexatious. She has not cited authority nor offered evidence of vexatious conduct to support her request. Her request is denied.

[¶ 35.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . The total is the amount tabulated from the four separate Orders Affirming Fee Reduction.

      . The panel consisted of Judges Trimble, Tice, Davis and Kern.

      . The parties dispute whether a prior review of court appointed attorney fees in Tappe v. Circuit Court was based on a writ of certiorari or direct appeal. 326 N,W.2d 892 (S.D. 1982). The Tappe opinion characterizes the action as an appeal. Initially, however, the attorney had filed an Application for Writ of Certiorari asking the Court to review the trial court's Order cutting his fees. Id. at 894. The Court denied the Writ "with the proviso that appellant could reapply for the writ if a hearing on the matter was denied by the circuit court.” Id. The circuit court held a hearing and Tappe directly appealed from that hearing.

      . SDCL 23A-40-8 and -9 set forth the county's responsibility to pay and judge's responsibility to fix the amount within the presiding judge's guidelines.
      Counsel assigned pursuant to § 23A-40-6 and subdivision 23A-40-7 (2) shall, after the disposition of the cause, be paid by the county in which the action is brought, or, in case of a parole revocation, by the county from which the inmate was sentenced, a reasonable and just compensation for his services and for necessary expenses and costs incident to the proceedings in an amount to be fixed by a judge of the circuit court or a law trained magistrate within guidelines established by the presiding judge of the circuit court.
      SDCL 23A-40-8.
      If proceedings after judgment and conviction are taken, by motion in arrest of judgment, motion for a new trial or any presen-tence or postsentence proceedings, or an appeal to the Supreme Court, an allowance for a sum as may be reasonable and just for the services rendered and for necessary expenses and cost incident to the proceedings shall be allowed to counsel assigned by the court pursuant to § 23A-40-6 and subdivision 23A-40-7 (2), in an amount to be set by a judge of the circuit court or a law trained magistrate within guidelines established by the presiding judge of the circuit court.
      SDCL 23A-40-9.

      . SDCL ch 16-18, Appx. South Dakota Rules of Professional Conduct, Preamble V 5 (1988).

      . Gideon holds that the Sixth Amendment right to counsel in felony trials applied to the states. 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Supreme Court expanded that right in Argersinger v. Hamlin by holding that defendants of even misdemeanors must be provided counsel or they could not be incarcerated. 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

      . SL 1901, ch 109.

      . SDRC ch 4 § 553 (1903); SDC 1939, § 34.1901; SL 1957, ch 182; SDCL, §§ 23-2-2, 23-2-3; SL 1968, ch 147; 1969, ch 155; 1978, ch 178, § 493; SDCL Supp, § 23A-40-4; SL 1979, ch 159, § 35; 1983, ch 191 § 2.

      . Although referred to as rules, they were not adopted through a rules hearing. They were implemented by Order by the presiding judges of each circuit and published in the South Dakota State Bar Newsletter. The Rules in their entirety are as follows:
      RULES FOR COMPENSATION OF COURT APPOINTED COUNSEL IN THE CIRCUIT COURTS OF SOUTH DAKOTA SCOPE
      These rules apply to all cases where an attorney is appointed to represent an indigent including criminal proceedings, juvenile delinquency proceedings, children in need of supervision proceedings, dependent and neglected children proceedings, termination of parental rights proceedings, Ha-beas Corpus, and other special proceedings.
      DUTIES OF APPOINTED COUNSEL
      A. Counsel who participate in this plan do so in fulfillment of their professional responsibility as officers of the Court. The limited amount of compensation accruing in no respect diminishes such responsibility. See: Rules 6.1 and 6.2 of the South Dakota Rules of Professional Conduct found in the Appendix to SDCL Chapter 16-18.
      B. Appointed counsel shall continue to serve until their representation is terminated as provided by this plan or by Court Order.
      C. While it is recognized that for various reasons a person may not be able to retain legal counsel on their own and should receive court appointed counsel, these same people do sometimes have the financial ability to make periodic partial payments to the county during the course of the attorney's representation. Thus, appointed counsel shall strongly encourage their appointed clients to report any improvement in their financial condition which would allow the client the ability to finance all or a part of the representation.
      TERMINATION OF APPOINTMENT OF COUNSEL
      A. Appointed counsel in a criminal case involving a plea of guilty, nolo contendere, or guilty but mentally ill, shall cease to serve when the Court imposes sentence.
      B. In the event that a defendant in a criminal case is convicted following trial, counsel shall advise the defendant of his right of appeal and of his right to counsel on appeal. If the defendant indicates a desire to appeal, counsel shall immediately advise the Court of that fact in writing. In such case, counsel shall continue to represent the defendant until such time as counsel is relieved by the order of a Circuit Court Judge or by the Supreme Court. If the defendant indicates no desire to appeal, counsel shall file a written statement to that effect, and thereupon counsel’s appointment will terminate.
      C. Representation by appointed counsel in other proceedings shall terminate when the purpose of the appointment is accomplished or when terminated by Court Order.
      COMPENSATION
      All appointed counsel will be paid for all legal services on an hourly basis of $67.00 per hour beginning January 1, 2000.* [Beginning January 1, 2002, fees increase annually in an amount equal to the cost of living increase that State employees receive each year from the legislature.] *Based on two-thirds of an average hourly rate of $100.00 per hour for nonindigents. Tappe v. Circuit Court, Etc., 326 N.W.2d 892 (S.D.1982).
      All flat fees will be eliminated.
      VOUCHERS FOR PAYMENT
      A. All requests and vouchers for the payment of attorney’s fees and expenses must be itemized and submitted to the judge presiding (trial judge) for approval.
      B. Upon application by counsel and for good cause shown, the judge presiding in the case may authorize interim payments for services provided.

        APPROVAL OR DISAPPROVAL OF ATTORNEY’S FEES AND COSTS
      A. If the full amount of the voucher or statement for fees by counsel is not approved by the trial judge, the trial judge must explain, either orally or in writing, the reasons for change or modification of the statement or voucher submitted by counsel.
      B. Appeal. If the attorney is dissatisfied with the amount of compensation allowed by the judge presiding in the case, the attorney may request that all judges in that circuit review the claim for compensation and hold a hearing thereon. A decision by the majority of the judges in that circuit shall become the amount of the fees and costs authorized.
      TRAVEL
      Travel will be paid at the rate of $.80 per mile for both the use of the automobile and for the attorney’s time on necessary travel. No trips are to be made out of the country where a matter is pending without prior approval of the judge; except for travel to and from the attorney's office and court.
      EXPERTS
      A. A motion to hire expert witnesses must be made in writing to the judge presiding in the case. This motion must be:
      1. Made in good faith;
      2. Reasonable in all respects;
      3. Timely and specifically set forth the necessity of the expert;
      4. Specify that the client is financially unable to obtain the required service himself and that such services would otherwise be justifiably obtained were the client financially able.*

        State v. Sahlie, 90 S.D. 682, 245 N.W.2d 476 (1976).
      *Counsel must verify with their client that the client is not financially able to retain the desired service as of the time the motion is made.
      B. If the judge approves the request, the order of appointment shall set a ceiling on the amount which can be expended for this purpose. That ceiling includes total outlay for the expert's services and expenses and cannot be exceeded without prior court authorization. Court appointed counsel shall send a copy of the order of appointment to the expert so that he or she has notice of the ceiling.
      C. If at all possible, experts from the immediate area of the proceedings should be appointed. When setting the hourly rate of compensation for medical and mental health care professionals, the court should consider the rates allowed to the same professionals by the then current provider network plan for State of South Dakota employees.
      APPOINTMENT OF CO-COUNSEL
      Because of their grave nature and/or complexity, certain cases can jeopardize an appointed counsel’s practice and sometimes draw into question whether a person will receive effective assistance of counsel. In such case an appointed counsel may request the court to appoint co-counsel to be paid at the rates established herein. The approval or disapproval of such application for co-counsel rests in the sound discretion of the trial judge. State v. Shape, 517 N.W.2d 650 (S.D. 1994).
      EXPENSES, PARALEGALS, and INVESTIGATORS
      Appointed counsel shall be allowed reimbursement for expenses reasonably incurred. Costs shall be limited to reasonable copying costs, subpoena service fees, telephone charges, fax charges, fees for obtaining records and similar expenses. Costs ascribed to overhead, such as word processing, messengers, secretarial services and similar expenditures shall not be allowed. Charges for electronic research services such as Lexis or Westlaw will not be allowed unless by prior written court order upon a showing of special need. Counsel are encouraged to subcontract various services ordinarily done by themselves, such as legal research and file organization, if these services can be provided at a reduced rate. Appointed counsel are also encouraged to subcontract factual investigation services when they can be provided at a reduced rate. If appointed counsel want to utilize the services of a paralegal or investigator, counsel must comply with the section entitled ''Experts”. The rate of compensation for paralegals is $30.00 per hour.
      STATE-WIDE UNIFORMITY
      The schedule of attorneys' fees will be uniform throughout the State of South Dakota and will go into effect on January 1, 2000.
      FAILURE TO FOLLOW THESE RULES WILL RESULT IN REFUSAL TO APPROVE THE BILL OR VOUCHER FOR SUCH EXPENSE.

      . Sidney states: "Claims for legal services should be submitted to the court by verified petition explaining the nature and extent of the work and in itemized form showing not only the amount of time spent but also the nature of the work and the problems involved in sufficient detail so that it can be properly appraised and a reasonable fee determined for the services. The facts so stated should be considered prima facie evidence, and modifications, allowances, and disallowances of the items made by the court and the reasons therefor should be set forth in writing and an opportunity given to counsel to contest the modifications.” Id. at 441.

      . Judge Tice provided a letter of explanation to Duffy after Duffy filed the Writ with this Court.


text:
    2004 SD 24
    STATE of South Dakota, Plaintiff and Appellee, v. George GIROUX, Jr., Defendant and Appellant.
    No. 22665.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 17, 2003.
    Decided Feb. 18, 2004.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Mitchell D. Johnson, Rapid City, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] George Giroux, Jr. was charged with second degree manslaughter, SDCL 22-16-20 and aggravated assault, SDCL 22-18-1.1(4). A jury found Giroux guilty of aggravated assault but acquitted him of manslaughter. Giroux was sentenced to fifteen years in the penitentiary, seven years suspended. Giroux appeals his conviction. We reverse.

FACTS

[¶ 2.] The charges against Giroux stem from an incident in which Giroux hit the victim, Martin Garza, in the face. Garza fell backwards hitting his head on concrete. Garza was found dead in his home the next day. An autopsy, performed on Garza, determined that the cause of death was a blunt force to his head. The State alleges that Giroux’s blow to Garza’s face caused his death. Giroux claims that Garza’s death was caused by Garza passing out and hitting his head at home subsequent to the blow from Giroux.

[¶ 3.] The evidence at trial was that shortly after falling, Garza stumbled home and knocked on the door to wake his mother to let him in the residence. His mother testified that she did not see any signs of distress and he did not mention anything to her. She said that he got a Coke and went to his room. Later that night she saw him lying on his bed and believed he was sleeping. The following morning, his mother found him dead, lying face down on the floor next to his bed.

ISSUES

1. Whether the trial court erred in refusing to instruct the jury on a lesser included offense of simple assault.
2. Whether aggravated assault merged into second degree manslaughter and whether prosecuting both charges subjected the defendant to double jeopardy.

STANDARD OF REVIEW

[¶ 4.] The issues raised in this appeal are questions of law, which we review de novo. State v. Chavez, 2002 SD 84, ¶ 10, 649 N.W.2d 586, 591.

DECISION

Lesser Included Offense

[¶ 5.] Giroux claims the trial court erred by refusing his proposed jury instruction for simple assault. In State v. Hoadley, this Court reviewed its past tests for determining if a lesser-included-offense instruction should be given. 2002 SD 109, ¶¶ 58-66, 651 N.W.2d 249, 262-65. It was determined that some of the tests used prior to Hoadley were “confusing and problematic” and should be abandoned. Id. at ¶ 58, 651 N.W.2d at 262. We ruled that “only the ‘elements’ test (i.e., legal branch of the legal/factual test)” should be used “to decide whether the lesser offense is included in the greater charged offense.” Id. ¶ 61. The elements test is “(1) all of the elements of the included offense are fewer in number than the elements of the greater offense; (2) the penalty for the included lesser offense must be less than that of the greater offense; and (3) both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense.” Id. (citing State v. Black, 494 N.W.2d 377, 379 (S.D.1993)(Black I)). Justice Konenkamp, writing for the majority on this issue in Hoadley, set forth when a lesser-included-offense instruction should be given:

A lesser-included-offense instruction should be given when (1) the elements test is met and (2) some evidence in support of such instructions exists in the record.

Id. ¶ 64. Although in Hoadley the Court affirmed the trial court’s refusal to give the lesser-included-offense instructions because of lack of some evidence, the Court did determine that the offenses of Second Degree Murder and Manslaughter met the elements test as lesser-included-offenses of First Degree Murder.

[¶ 6.] In adopting the elements test, we referred to the analysis of Judge Tucker in his law review article in which he urged this Court to abandon our prior tests in favor of the elements test. Tim Dallas Tucker, State v. Black: Confusion in South Dakotas Determination of Lesser Included Offenses in Homicide Cases, 41 SDLRev 465, 501 (1996). Judge Tucker’s analysis recognized that under South Dakota’s current statutory scheme the elements test is “difficult to use.” Id. at 496. He points out, however, that “it is workable if different intent or state of mind elements are accepted as lesser elements.” Id. As precedent for this approach, Tucker cites our prior holding in State v. Tammi, 520 N.W.2d 619 (S.D.1994). In Tammi, this Court considered careless driving as a lesser-included-offense of reckless driving because reckless involves a “more culpable degree of negligence.” Id. at 623. Tucker opines that this Court could have used the same analysis in State v. Marshall, 495 N.W.2d 87 (S.D.1993) “without the strained, hyper-technical reasoning of the court.” Tucker at 497. In Marshall, this Court reasoned that simple assault was not a lesser-included-offense of aggravated assault because aggravated assault required an element of “knowingly” causing injury while simple assault required “intentionally” causing injury. 495 N.W.2d at 88-89. Since different words were used, we concluded they have different meanings and therefore did not meet the legal test. Id. at 89. A similar reasoning was applied in State v. Latham, 519 N.W.2d 68 (S.D.1994). In Latham, this Court held that simple assault was not a lesser-included-offense of aggravated assault. The aggravated assault charge required knowingly causing bodily injury with a dangerous weapon. Latham had requested lesser-included-offense instructions of recklessly causing bodily injury and negligently causing bodily injury to another with a dangerous weapon. Again we found that the use of different words precluded the lesser-offense instructions. We said, “If one ‘knowingly caused’ something, they did not ‘negligently cause’ or ‘recklessly cause’ it.” Id. at 72.

[¶ 7.] More recently in Hoadley, we applied the elements test and concluded that Murder in the Second Degree and Manslaughter were lesser-included-offenses of First Degree Murder. The lesser charges, although using different words, were still considered to have met the elements test. 2002 SD at ¶ 64, 651 N.W.2d at 264.

[¶ 8.] By adopting the elements test in Hoadley, we moved away from the analysis used in Latham and Marshall. The use of different words does not necessarily eliminate a crime as a lesser-inchided-of-fense. Our analysis, instead, uses the degree of culpability analysis operating in Tammi. Further support for this approach is found in the South Dakota crimi-na! statute SDCL 22-1-2 which defines the types of mens rea or criminal intent. Included in the definitions are the words “intent” and “reckless.” The statutory definitions are as follows:

Terms used in this title mean:
(1) If applied to the intent with which an act is done or omitted:
(a) The words “malice, maliciously” and all derivatives thereof import a wish to intentionally vex, annoy, or injure another person, established either by proof or presumption of law;
(b) The words “intent, intentionally” and all derivatives thereof, import a specific design to cause a certain result or, when the material part of a charge is the violation of a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, a specific design to engage in conduct of that nature;
(c) The words “knowledge, knowingly” and all deiivatives thereof, import only a knowledge that the facts exist which bring the act or omission within the provisions of any statute. A person has knowledge when he is aware that the facts exist which bring the act or omission within the provisions of any statute. It does not require knowledge of the unlawfulness of such act or omission;
(d) The words “reckless, recklessly” and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist;
(e) The words “neglect, negligently” and all words derived thereof, import a want of attention to the nature or probable consequences of an act or omission which a prudent man ordinarily bestows in acting in his own eoncerns[.]

SDCL 22-1-2.

[¶ 9.] Of particular importance is subsection (l)(f) of the statute, for it is in this subsection that the legislature identifies how each of the degrees of intent relates to the others. It sets forth how the greater degrees of intent include the lesser degrees. The subsection provides:

(f) If the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, intent or malice also constitutes sufficient culpability for such element. If recklessness suffices to establish an element of the offense, then knowledge, intent or malice also constitutes sufficient culpability for such element If knowledge suffices to establish an element of an offense, then intent or malice also constitutes sufficient culpability for such element. If intent suffices to establish an element of an offense, then malice also constitutes sufficient culpability for such element[J

SDCL 22 — 1—2(l)(f) (emphasis added). The subsection outlines the hierarchy of criminal intent. The order from least culpable to most is as follows: negligent, reckless, knowing, intent and malice. Malice includes intent, intent includes knowingly, knowingly includes reckless, and reckless includes negligence. It is a logical conclusion that the legislature intended to define the various types of intent and to set forth their relative culpability. The statute allows greater degrees of culpability to constitute proof of lesser degrees of culpability. It necessarily follows that a lesser included offense has a lesser degree of culpability, i.e. intent.

[¶ 10.] Therefore, based on our writing in Hoadley, Tammi and on SDCL 21-1-2, we conclude that when determining whether a crime is a lesser-ineluded-offense, the degrees of intent, that is, the degrees of culpability should be considered. To the extent that this holding is inconsistent with Marshall and Latham, they are overruled.

[¶ 11.] In order to conclude that the jury in this case should have been instructed on simple assault, we must first determine if the elements test was satisfied. We initially look to see if the number of elements in the lesser offense is fewer than in the greater offense. The State charged Giroux with aggravated assault under SDCL 22-18-1.1(4) which requires: “Any person who ... [a]ssaults another with intent to commit bodily injury which results in serious bodily injury ... is guilty of aggravated assault.” Id.

[¶ 12.] The two definitions of simple assault Giroux requested are as follows:

Any person who:
(2) Recklessly causes bodily injury to another;
(5) Intentionally causes bodily injury to another which does not result in serious bodily injury; is guilty of simple assault.

SDCL 22-18-1(2). The elements of aggravated assault are (1) assault; (2) intent to commit bodily injury; and (3) resulting serious bodily injury. SDCL 22-18-1.1(4). The simple assault elements in SDCL 22-18-1(2) are (1) recklessly causing (2) bodily injury to another. In SDCL 22-18-1(5), the elements are (1) intentionally causing (2) bodily injury to another which does not result in serious bodily injury. Both simple assaults under subsections (2) and (5) have fewer elements than the offense of aggravated assault thus meeting the first of the elements test.

[¶ 18.] The second element requires that the penalty for the lesser offense be less than for the greater offense. Simple assault is a Class 1 misdemeanor. Aggravated assault is a Class 3 felony. Because the penalty for aggravated assault is greater than that for simple assault, this element is met.

[¶ 14.] Finally, the third element requires both the greater and lesser offense to have common elements “so that the greater offense cannot be committed without also committing the lesser offense.” Hoadley at ¶ 61, 651 N.W.2d at 263. Aggravated assault requires the “intent to commit bodily injury”; simple assault under subsection (2) requires “recklessly causing bodily injury.” Intentional and reckless both represent a mental state or degree of culpability. Intentional requires “a specific design to cause a certain result.” SDCL 22-l-2(b). “ ‘Reckless’ ... import[s] a conscious and unjustifiable disregard of a substantial risk.” SDCL 22-l-2(d). Reckless is a lesser degree of culpability or mental state than intentional. As the law states, “[i]f recklessness suffices to establish an element of the offense, then knowledge, intent or malice also constitutes sufficient culpability.” SDCL 22-1 — 2(f). Whether the assault in this case y^as done intentionally or recklessly is a matter of degree. The third element is met for simple assault under subsection (2).

[¶ 15.] Subsection (5) of SDCL 22-18-1, however, does not involve a lesser degree of culpability. Both aggravated assault and simple assault under subsection (5) require the element of intentionally causing bodily injury. Where the two differ is that aggravated assault requires bodily injury “which results in serious bodily injury,” and simple assault requires bodily injury “which does not result in serious bodily injury.” The definition of one excludes the other. Consequently, the greater offense can be committed without also committing the lesser offense. It would be a lesser included offense if the Legislature had defined simple assault as “intentionally causing bodily injury” without the qualifier — “which does not result in serious bodily injury.” However, the manner in which the Legislature chose to define simple assault in subsection (5) precludes it from being considered a lesser-included-offense.

[¶ 16.] Having determined that the elements test is met for subsection (2), we must then determine if there was some evidence in the record to support a simple assault instruction. Hoadley, 2002 SD at ¶ 64, 651 N.W.2d at 264. Giroux argues that the jury could have found his conduct reckless rather than intentional. As previously noted, whether the assault in this case was done intentionally or recklessly is a matter of degree. Testimony indicated that Garza initially confronted Giroux. Further, the testimony showed that both Garza and Giroux were moving around like boxers in a ring. Giroux landed one punch. These facts, along with other evidence presented against him, could be found to show that Giroux’s conduct was reckless. The defendant is only required to present some evidence for the lesser included offense to be presented to the jury. Here, the evidence supports giving a lesser-ineluded-offense instruction to the jury for simple assault under subsection (2).

Merger & Double Jeopardy

[¶ 17.] Giroux was convicted of aggravated assault but acquitted on manslaughter. Giroux contends that aggravated assault is a lesser offense which merged into the more serious crime of second degree manslaughter and that he should not have been tried on the aggravated assault count. “In respect to offenses arising from a single incident, the common-law doctrine of merger no longer exists, but that term is now commonly used to refer to the constitutional prohibition, arising out of the double jeopardy clause, against punishing a person twice for the same act or offense.” United States v. Belt, 516 F.2d 873, n. 7 (8thCir,1975) (citing 1 Burdick, Law of Crime § 85 (1946)). In cases where there has been a violation of double jeopardy because the defendant was multiply punished for essentially the same offense, resolution requires that the conviction and sentence for the lesser crime be vacated. State v. Dillon, 2001 SD 97, ¶ 22, 632 N.W.2d 37, 46; State v. Groves, 473 N.W.2d 456, 458 (S.D.1991). Here, Giroux was found guilty of only one offense and sentenced accordingly. If he had been convicted and sentenced for both offenses and if on appeal it was determined that the convictions resulted in double jeopardy, the remedy would be to vacate the lesser offense. Giroux was convicted on only one charge, hence this issue is moot.

[¶ 18.] We reverse and remand for a new trial.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . The statute under which Hoadley was charged with First Degree Murder is as follows:
      Homicide is murder in the first degree when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, or when committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive. Homicide is also murder in the first degree if committed by a person who perpetrated, or who attempted to perpetrate, any arson, rape, robbery, burglary, kidnapping or unlawful throwing, placing or discharging of a destructive device or explosive and who subsequently effects the death of any victim of such crime to prevent detection or prosecution of the crime. SDCL 22-16-4.
      The lesser included offenses which are referenced in Hoadley are cited in Justice Sabers' writing as follows: " 'Homicide is murder in the second degree when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect death of any particular individual.’ SDCL 22-16-8, which defines murder in the second degree also, provides: 'Homicide perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, is not the less murder because there was no actual intent to injure others.' 'Manslaughter in the second degree is defined as a reckless killing of another and explicitly excludes manslaughter in the first degree from its definition.' ” Hoadley, ¶ 47 (quoting in part State v. Andrews, 2001 SD 31, ¶ 22, 623 N.W.2d 78, 84 (citing SDCL 22-16-20)).

      . In Tammi, we used both the legal and factual tests to determine if lesser-included-offense instructions should be given. Here, we rely only on the legal test analysis.

      . A comparable section of the Model Penal Code provides the following explanation: "it [is] unnecessary to state in the definition of an offense that the defendant can be convicted if it is proved that he was more culpable than the definition of the offense requires. Thus, if the crime can be committed recklessly, it is no less committed if the actor acted purposely.” Id. at § 2.02 note on requirements of culpability (2001) (The word "purposely" used here is referred to as "intentionally” in the South Dakota Code).

      . Under SDCL 22-18-1, ''[s]imple assault is a Class 1 misdemeanor. However, if the defendant has been convicted of two or more violations of this section within five years of committing the current offense, the defendant is guilty of a Class 6 felony.