STATE of South Dakota, Plaintiff and Appellant v. Elmer R. HEAD, Defendant and Appellee, 469 N.W.2d 585

SABERS, Justice. Circuit court dismissed all charges against defendant for State’s violation of 180-day rule, including subsequently filed charges arising out of the same criminal transaction. State appeals. We affirm. Facts In the early morning of August 2, 1989, an Aberdeen woman was accosted on a downtown street near her home. Her assailant grabbed her around the neck and dragged her across the street behind a building. He threatened her, pulled her hair, forcibly removed her pants and raped her, although he was unable to complete intercourse. He finally gave up and ran away.

The same day, Elmer Head was arrested and made his first appearance on a charge of first degree rape in violation of SDCL 22-22-1(1). Head was arraigned following a preliminary hearing on August 17, 1989. He pled not guilty. State sought DNA testing of tissue samples in order to establish the identity of the rapist, but State was not notified that the results of these tests were inconclusive until early February, 1990. As of January 29, 1990, 180 days from Head’s first appearance on August 2, 1989, State neither disposed of its case against Head nor filed a motion for good cause delay pursuant to SDCL 23A-44-5.1.

Some three weeks later, on February 23, 1990, Head filed a motion to dismiss with prejudice based on the 180-day rule. On February 26, Head received notice that the State dismissed the rape charge without prejudice pursuant to SDCL 23A-44-2. Moreover, a Brown County grand jury indicted Head on February 26 on charges of (1) aggravated assault in violation of SDCL 22-18-1.1(1) ; (2) attempted first-degree rape in violation of SDCL 22-22-1(1); and (3) kidnapping in violation of SDCL 22-19-1(3). Head made a motion to dismiss with prejudice.

Following a hearing on March 29, 1990, the circuit court voided State’s dismissal without prejudice and ordered the dismissal with prejudice of not only the original first-degree rape charge, but also the three additional charges.

The court reasoned that SDCL 23A-44-5.1 requires not only dismissal with prejudice of the initial charge once 180 days have elapsed without disposition of the case or motion for good cause delay, but also “all charges which could have been brought against the Defendant arising out of the same set of facts that gave rise to the initial eom-plaint[.]” On appeal, State argues that even if application of the 180-day rule requires dismissal with prejudice of the first degree rape charge, it does not require dismissal with prejudice of the three additional charges subsequently filed even though they arose out of the same transaction.

Decision All defendants charged with criminal offenses enjoy the constitutional right to a “speedy and public trial.” U.S. Const, amend. VI; S.D. Const, art. VI, § 7. In South Dakota, as in many other states, how speedy this public trial must be has been spelled out by statute. SDCL 23A-44-5.1 requires that charges against a defendant be dismissed if more than 180 days elapse between the defendant’s first court appearance and the final disposition of the case by either guilty plea, nolo contendere plea, trial or dismissal — unless there is some good cause for delay beyond the 180-day period.

This 180-day rule does not come into conflict with statutes of limitations for criminal offenses for the obvious reason that statutes of limitations prescribe the maximum time between the offense and the charge, whereas the 180-day rule prescribes the maximum time between the charge and the resolution of the case. This court clarified the operation of the 180-day rule in State v. Hoffman, 409 N.W.2d 373 (S.D.1987). We held that State may take advantage of the “good cause delay” exception to the rule only if it files a motion to that effect during the 180-day period. Id. at 375.

We also held that, absent such motion by State for good cause delay, once 180 days have elapsed, the charge against the defendant is dismissed “with prejudice” and may not be re-filed later. Id. at 376. When a charge is dismissed with prejudice, the dismissal is res judicata as to the offense charged. Parks v. State, 41 Md.App. 381, 397 A.2d 212, 215 (1979), aff'd, 287 Md. 11, 410 A.2d 597 (1980); Foundry Systems & Supply Inc. v. Industry Dev. Corp., 124 Ga.App. 589, 185 S.E.2d 94, 95-96 (1971).

Here, the original August 1989 charge of first degree rape was subject to dismissal with prejudice when, after 180 days had passed, State had neither brought Head to trial nor filed a motion for good cause delay, and State is forever barred from re-filing the same charge. That much is clear and State does not contest it. State does discuss mitigating circumstances to account for its failure to provide Head with a speedy trial, but that should have been the subject of a motion for good cause delay and is immaterial now.

State argues that the February 1990 charges of aggravated assault, attempted rape and kidnapping are not barred by the dismissal with prejudice of the original charge because they are new charges for separate offenses and not a re-charging of the same offense, even though all arose out of the same transaction. When the speedy trial period begins to run for a defendant charged with one offense and subsequently charged with a second offense arising from the same transaction is discussed in II ABA Standards for Criminal Justice (1980). Standard 12-2.2(

a) provides that the speedy trial period for the second charge should be counted from the date of the first charge “if the defendant has been continuously held in custody or on bail or recognizance until that date to answer for ... a crime based on the same conduct or arising from the same criminal episode” (emphasis added). In other words, this is a transactional rule for determining what constitutes the “same offense” for speedy trial purposes.

As the Commentary for this Standard explains, “the defendant should not lose credit for the time that passes between the date the defendant is held to answer and the date of the charge simply because the offense charged, arising out of the same conduct or episode, differs somewhat from the offense for which the defendant is being held to answer.” Id.

The clear implication of this approach is that if one charge is dismissed with prejudice for violation of the 180-day rule, State cannot charge the defendant with the violation of another statute arising out of the same transaction any more than it can refile the original charge a second time. That was exactly the holding of the Pennsylvania Supreme Court in Commonwealth v. Earp, 476 Pa. 369, 382 A.2d 1215 (1978). As we said in State v. Hoffman, “[allowing State to simply recharge offenders after dismissal under SDCL 23A-44-5.1 would totally defeat the purpose behind the rule.” 409 N.W.2d at 376.

Allowing State to simply charge offenders for the same conduct under a different statute after dismissal of the first charge would also defeat the purpose behind the rule. Nevertheless, the “arising from the same transaction” rule presents problems when stated too broadly, and the Pennsylvania court has retreated somewhat from its Earp holding. In Commonwealth v.

Genovese, 493 Pa. 65, 425 A.2d 367 (1981), the Court held that, where State dismisses a charge within the speedy trial period and subsequently re-files the same charge, a new speedy trial period should commence with the second filing when there is no indication in the record that State’s dismissal of the original charge had anything to do with circumventing the 180-day rule. Accord State v.

Lowther, 434 N.W.2d 747, 751-752 (S.D.1989). (However, “[wjhere the prosecution is voluntarily terminated and the record shows an attempt to manipulate the requirements of the 180-day rule, the time period will be computed from the date the defendant appeared before a judicial officer on the original indictment.” Id. at 751 (citing Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806, 808 (1985))). In Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985), a defendant was charged with aggravated assault.

When the assault victim later died and the defendant was additionally charged with homicide, the court permitted the 180-day clock on the defendant's murder trial to run from the second charge for the simple reason that at the time of the first charge, “there had been no homicide, because the victim of the aggravated assault had not yet died.” Id. 500 A.2d at 804. Here, Head awaited trial on a charge of first degree rape for over 200 days.

Only after the 180-day period had run, in fact, in the same week Head moved for dismissal with prejudice, did State attempt to dismiss the original charge without prejudice and to bring three additional charges against him. One of these three new charges was a lesser included offense under the original first degree rape charge. The other two charges not only arose out of the same transaction on August 2, 1989, but they were fully chargeable on August 2, 1989.

There is no indication in the record that there were any developments in the underlying facts or that State received any new evidence or information after August 2, 1989 to excuse State’s delay for nearly seven months before seeking indictments. The record strongly suggests that in February, 1990, State realized it was about to lose its case against Head through its own avoidable error, and that its actions were intended to circumvent the effect of the 180-day rule.

The trial court concluded that “a dismissal with prejudice pursuant to SDCL 23A-44-5.1 is a dismissal with prejudice of all charges which could have been brought against the defendant arising out of the same set of facts that gave rise to the initial complaint or indictment.” Recalling the experience of the Pennsylvania court, we hesitate to adopt this rule in the absolute to apply to all conceivable circumstances.

Nevertheless, we have no difficulty agreeing that, under the facts of this case, the dismissal of the first degree rape charge with prejudice precluded not only the re-filing of that charge, but also the filing of aggravated assault, attempted first degree rape and kidnapping charges arising out of the same incident. Affirmed. HERTZ, Circuit Judge, Acting as a Supreme Court Justice, concurs. WUEST, and HENDERSON, JJ., concur specially. MILLER, C.J., dissents. AMUNDSON, J., not having been a member of the Court at the time this case was argued, did not participate. .

SDCL 22-18-1.1(1) provides: “Any person who [ ] [ajttempts to cause serious bodily injury to another, or causes such injury, under circumstances manifesting extreme indifference to the value of human life ... is guilty of aggravated assault. Aggravated assault is a Class 3 felony.” . Both the August 1989 first degree rape charge and the February 1990 attempted first degree rape charge cited only SDCL 22-22-1(1), which provides: "Rape is

an act of sexual penetration accomplished with any person ... under any ... of the following circumstances:

(1) Through the use of force, coercion or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution!)]" . SDCL 22-19-1(3) provides in part: "Any person who shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person ... [t]o inflict bodily injury on or to terrorize the victim or another ... is guilty of kidnapping.

Kidnapping is a Class 1 felony[.]” .SDCL 23A-44-5.1 provides: The prosecution shall dispose of all criminal cases by plea of guilty or nolo contendere, trial or dismissal within one hundred eighty days from the date the defendant has first appeared before a judicial officer on the complaint or indictment. Any period of delay shall be excluded if the trial court finds good cause for the delay. In the event of the prosecution's failure to dispose of the action within the time limit required by this section, the action shall be dismissed. .

State acknowledges that Head could not be re-charged with the same offense once the first charge was dismissed with prejudice. However, it argues that the "same offense” should not include all possible charges arising out of the same transaction.

While conceding that "[djou-ble jeopardy is not applicable to this case as such," State urges that double jeopardy analysis of what constitutes the “same offense” provides an "interesting analogy." For double jeopardy purposes the United States Supreme Court has held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (citations omitted). Under the Blockburger approach a defendant may be tried twice for the same criminal transaction so long as he is charged under two different statutes and both statutes contain at least one element which the other statute does not. South Dakota adheres to the Blockburger approach for double jeopardy purposes. State v. Flittie, 318 N.W.2d 346, 348 (S.D.1982).

If we applied the Blockburger and Flittie double jeopardy rule to this case, the dismissal with prejudice of the August 1989 first degree rape charge would bar only the February 1990 attempted first degree rape charge because the latter is a lesser included offense of the former and contains no independent elements. Because the statutes defining aggravated assault and kidnapping contain elements not contained in SDCL 22-22-1(1), and vice-versa, these two charges would constitute separate offenses under Blockburger even though they arose from the same transaction.

However, Blockburger has been modified since Flittie by the more recent double jeopardy case of Grady v. Corbin, 495 U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which held that the Blockburger test of strictly statutory comparison is no longer the exclusive means of determining whether a subsequent charge constitutes the same offense as an earlier charge.

Even when State passes the Blockburger test because neither statute is subsumed by the other, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.... The critical inquiry is what conduct the State will provef.j 495 U.S. at -, 110 S.Ct. at 2093 (emphasis added).