Blockburger test in South Dakota

2015The Blockburger test provides: “[W]here 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 a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180, 182 , 76 L.

2015The Blockburger test provides: “[W]here 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 a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180, 182 , 76 L.

2015See Dixon, 509 U.S. at 703-05 , 113 S. Ct. at 2859-60 (Blockburger test satisfied); see also Pickering, 88 S.D. at 552-54 , 225 N.W.2d at 100-01 .

2015See Dixon, 509 U.S. at 703-05 , 113 S. Ct. at 2859-60 (Blockburger test satisfied); see also Pickering, 88 S.D. at 552-54 , 225 N.W.2d at 100-01 .

2019In applying the Blockburger test, we have stated that when ascertaining the intent behind South Dakota law, “we part ways with the federal analysis to the extent that we examine ‘only the statutory elements comprising the offenses without regard to how the offenses were charged, how the jury was instructed, or how the underlying proof for the necessary elements was established.’” Id. [¶19.] McMillen argues the circuit court committed error because the proof of “sexual penetration” of a child under the age of sixteen for fourth-degree rape -9- #28734 necessarily proves “activity that is harmful

2019In applying the Blockburger test, we have stated that when ascertaining the intent behind South Dakota law, “we part ways with the federal analysis to the extent that we examine ‘only the statutory elements comprising the offenses without regard to how the offenses were charged, how the jury was instructed, or how the underlying proof for the necessary elements was established.’” Id. [¶19.] McMillen argues the circuit court committed error because the proof of “sexual penetration” of a child under the age of sixteen for fourth-degree rape -9- #28734 necessarily proves “activity that is harmful

2015See Dixon, 509 U.S. at 703-05 , 113 S. Ct. at 2859-60 (Blockburger test satisfied); see also Pickering, 88 S.D. at 552-54 , 225 N.W.2d at 100-01 .

2015See Dixon, 509 U.S. at 703-05 , 113 S. Ct. at 2859-60 (Blockburger test satisfied); see also Pickering, 88 S.D. at 552-54 , 225 N.W.2d at 100-01 .

1991However, 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.

1991However, 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.

2014South Dakota has no equivalent statute. [¶26.] Yet, as the Court points out, application of the Blockburger rule does not end our double jeopardy analysis. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States, 471 U.S. 773, 779 , 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764 (1985).

2014South Dakota has no equivalent statute. [¶26.] Yet, as the Court points out, application of the Blockburger rule does not end our double jeopardy analysis. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States, 471 U.S. 773, 779 , 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764 (1985).

2002Thus, multiple charges and punishments in a single prosecution will not violate double jeopardy if the Legislature plainly intended to impose cumulative punishments. [Missouri v.] Hunter, 459 U.S. [359,] 368-69, 103 S.Ct. [673,] 679, 74 L.Ed.2d 535 [ (1983) ]. [[Image here]] ‘[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.’ Id. at 359 , 103 S.Ct. 673 .

2002Thus, multiple charges and punishments in a single prosecution will not violate double jeopardy if the Legislature plainly intended to impose cumulative punishments. [Missouri v.] Hunter, 459 U.S. [359,] 368-69, 103 S.Ct. [673,] 679, 74 L.Ed.2d 535 [ (1983) ]. [[Image here]] ‘[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.’ Id. at 359 , 103 S.Ct. 673 .

2006We have clearly stated that the Blockburger test is merely “ ‘a rule of statutory construction to help determine legislative intent.’ ” Dillon, 2001 SD 97, ¶ 14 , 632 N.W.2d at 43 (quoting Garrett, 471 U.S. at 778-79 , 105 S.Ct. at 2411 , 85 L.Ed.2d 764 ); see also Weaver, 2002 SD 76, ¶ 14 , 648 N.W.2d at 361 .

2006We have clearly stated that the Blockburger test is merely “ ‘a rule of statutory construction to help determine legislative intent.’ ” Dillon, 2001 SD 97, ¶ 14 , 632 N.W.2d at 43 (quoting Garrett, 471 U.S. at 778-79 , 105 S.Ct. at 2411 , 85 L.Ed.2d 764 ); see also Weaver, 2002 SD 76, ¶ 14 , 648 N.W.2d at 361 .

2014Looking to this Court’s application of Blockburger , we conclude that the Whalen analysis is not in line with our precedent of interpreting statutes for double jeopardy purposes. [¶ 17.] Whalen departed from an abstract approach of applying the Blockburger test to the statutory elements and instead applied the test to how the crimes were actually charged. 445 U.S. at 694 , 100 S.Ct. at 1439 (“In the present case, however, proof of rape is a necessary element of proof of the felony murder....”).

2014Looking to this Court’s application of Blockburger , we conclude that the Whalen analysis is not in line with our precedent of interpreting statutes for double jeopardy purposes. [¶ 17.] Whalen departed from an abstract approach of applying the Blockburger test to the statutory elements and instead applied the test to how the crimes were actually charged. 445 U.S. at 694 , 100 S.Ct. at 1439 (“In the present case, however, proof of rape is a necessary element of proof of the felony murder....”).

2007See Garrett, 471 U.S. at 779 , 105 S.Ct. at 2411 , 85 L.Ed.2d 764 ; Lafferty, 2006 SD 50, ¶ 11 , 716 N.W.2d at 786 (noting that the Blockburger test is not controlling when the legislative intent is clear) (additional citations omitted). [¶ 43.] This case is similar to the Washington Court of Appeals case of State v. Gohl, 109 Wash.App. 817 , 87 P.3d 293 (2001).

2007See Garrett, 471 U.S. at 779 , 105 S.Ct. at 2411 , 85 L.Ed.2d 764 ; Lafferty, 2006 SD 50, ¶ 11 , 716 N.W.2d at 786 (noting that the Blockburger test is not controlling when the legislative intent is clear) (additional citations omitted). [¶ 43.] This case is similar to the Washington Court of Appeals case of State v. Gohl, 109 Wash.App. 817 , 87 P.3d 293 (2001).

2015See Garza, 2014 S.D. 67, ¶ 13 , 854 N.W.2d at 838 (stating that we employ Blockburger when the legislative intent is unclear).

2015See Garza, 2014 S.D. 67, ¶ 13 , 854 N.W.2d at 838 (stating that we employ Blockburger when the legislative intent is unclear).

2014See State v. Caddy, 15 S.D. 167 , 87 N.W. 927, 928 (1901) (quoting Morey, 108 Mass. at 434 ) (“A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”).

2014See State v. Caddy, 15 S.D. 167 , 87 N.W. 927, 928 (1901) (quoting Morey, 108 Mass. at 434 ) (“A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”).

2014Contra Roberts v. State, 712 N.E.2d 23, 30 (Ind.Ct.App.1999) (applying a more stringent test) (cited by this Court in Dillon, 2001 S.D. 97 , ¶ 20, 632 N.W.2d at 46).

2014Contra Roberts v. State, 712 N.E.2d 23, 30 (Ind. (continued . . .) -14- #26807 76 L.

2014Thus, the primary issue before this Court is whether the South Dakota Legislature intended first-degree arson and felony murder to be separately punishable offenses, not whether they constitute the same offense under the federal formulation of the Blockburger test. [¶ 12.] We have an “[established double jeopardy jurisprudence^ which] confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.” State v. Deneui, 2009 S.D. 99 , ¶ 65, 775 N.W.2d 221, 247 (quoting State v. Dillon, 2001

2014Thus, the primary issue before this Court is whether the South Dakota Legislature intended first-degree arson and felony murder to be separately punishable offenses, not whether they constitute the same offense under the federal formulation of the Blockburger test. [¶ 12.] We have an “[established double jeopardy jurisprudence^ which] confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.” State v. Deneui, 2009 S.D. 99 , ¶ 65, 775 N.W.2d 221, 247 (quoting State v. Dillon, 2001

2014See Hunter, 459 U.S. at 368 , 103 S.Ct. at 679 (citing O’Brien v. Skinner, 414 U.S. 524, 531 , 94 S.Ct. 740, 743 , 38 L.Ed.2d 702 (1974)) (acknowledging that the United States Supreme Court was bound by the Missouri Supreme Court’s conclusion that Missouri statutes authorized multiple punishments for one criminal act).

2014See Hunter, 459 U.S. at 368 , 103 S.Ct. at 679 (citing O’Brien v. Skinner, 414 U.S. 524, 531 , 94 S.Ct. 740, 743 , 38 L.Ed.2d 702 (1974)) (acknowledging that the United States Supreme Court was bound by the Missouri Supreme Court’s conclusion that Missouri statutes authorized multiple punishments for one criminal act).

2014See State v. Caddy, 15 S.D. 167 , 87 N.W. 927, 928 (1901) (quoting Morey, 108 Mass, at 434) ("A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”).

2014See State v. Caddy, 15 S.D. 167 , 87 N.W. 927, 928 (1901) (quoting Morey, 108 Mass, at 434) ("A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”).

2007Under Blockburger , “the test to be applied to determine whether there are two separate offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Id. ¶ 10; see also Rutledge v. United States, 517 U.S. 292, 297 , 116 S.Ct. 1241, 1245 , 134 L.Ed.2d 419 (1996) (applying the Blockburger test).

2007Under Blockburger , “the test to be applied to determine whether there are two separate offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Id. ¶ 10; see also Rutledge v. United States, 517 U.S. 292, 297 , 116 S.Ct. 1241, 1245 , 134 L.Ed.2d 419 (1996) (applying the Blockburger test).

2002“Thus, when the Blockburger analysis arrives at a result contrary to the ‘language, structure, and legislative history’ of the statute, the ‘Blockburger presumption must of course yield to a plainly expressed contrary view on the part of the legislature.’ ” State v. Gill, 187 W.Va. 136 , 416 S.E.2d 253, 259 (1992) (quoting Garrett, 471 U.S. at 779 , 105 S.Ct. at 2412 , 85 L.Ed.2d 764 ).

2002“Thus, when the Blockburger analysis arrives at a result contrary to the ‘language, structure, and legislative history’ of the statute, the ‘Blockburger presumption must of course yield to a plainly expressed contrary view on the part of the legislature.’ ” State v. Gill, 187 W.Va. 136 , 416 S.E.2d 253, 259 (1992) (quoting Garrett, 471 U.S. at 779 , 105 S.Ct. at 2412 , 85 L.Ed.2d 764 ).