MILLER, Chief Justice.
[¶ 1.] The State appeals the dismissal of controlled substance charges against Byron Stepner for violation of the “180 day rule.” See SDCL 23A-44-5.1.1 We reverse and remand.
[906]*906FACTS
[¶ 2.] In June 1996, Stepner and his wife were indicted for various controlled substance offenses. Stepner was indicted on one count each of possession of controlled substances, possession of marijuana, possession of drug paraphernalia and keeping a place for the sale or use of controlled substances.
[¶ 3.] Both Stepner and his wife were originally represented by attorney Tim James who attempted to negotiate a plea agreement on their behalf. However, as time passed, conflicts developed between Stepner, his wife and James. Stepner’s wife retained her own attorney and James eventually sought to withdraw from the case. His withdrawal was finally permitted in January 1997 when Step-ner’s current counsel was appointed. The following constitutes a chronology of the other pertinent events in this matter:
6/17/96 Stepner’s first appearance before a judicial officer on the indictment.
9/9/96 Stepner’s arraignment before Circuit Judge Caldwell. Step-ner’s counsel requests a trial after the first of the year and states he is authorized to waive Stepner’s rights under the 180 day rule. Judge Caldwell declines counsel’s request and sets the trial for December 4 and 5.
11/19/96 Stepner’s counsel notifies the prosecutor he intends to file a motion to withdraw.
11/20/96 Judge Caldwell hears a motion for a continuance and for waiver of the 180 day rule. She further advises Stepner of his rights under the 180 day rule and requests a waiver of those rights because of his intention to change counsel. Stepner gives an unqualified waiver of his rights under the 180 day rule.
11/26/96 Stepner’s counsel files his motion to withdraw.
12/14/96 The original 180 day time limit for trial expires.
12/18/96 Judge Caldwell conducts a hearing on the motion of Stepner’s counsel to withdraw. She gives Stepner two weeks to hire a new attorney and indicates that, because of the problems getting the case to trial, there should be no 180 day problem. She also states that as soon as Stepner gets a new attorney she will have him execute a waiver of Stepner’s rights under the 180 day rule. Although the judge mentions a possible February trial date, at the prosecutor’s request, she sets the trial for March 20 and 21 or, alternatively, for the end of April.
12/24/96 Judge Caldwell enters an order giving Stepner until January 2, 1997 to retain a new attorney and to have his counsel file a waiver of his rights under the 180 day rule.2
1/6/97 Stepner’s current counsel is appointed.
1/13/97 Judge Caldwell enters an order granting Stepner’s original counsel leave to withdraw.
3/17/97 Stepner files numerous pretrial motions including a motion to dismiss for violation of the 180 day rule.
6/16/97 Stepner files an affidavit for a change of judge.
6/25/97 Stepner files additional pretrial motions and a second motion to dismiss for violation of the 180 day rule.
7/9/97 The presiding judge of the circuit, enters an order granting Step-ner’s request for a change of judge and excluding the delay caused by changing judges from the 180 day period.
7/15/97 The presiding judge appoints Judge Tappe to preside over the case.
8/25/97 Judge Tappe conducts a motions hearing including a hearing on the motions to dismiss for violation of the 180 day rule.
[907]*90712/5/97 Judge Tappe enters findings of fact, conclusions of law and an order dismissing the case for violation of the 180 day rule.
[¶4.] The State appeals the dismissal of the charges against Stepner.
ISSUE ONE
[¶ 5.] The transcript of the November 20, 1996 pretrial hearing was properly before this Court.
[¶ 6.] Stepner raises a preliminary issue regarding the record. SDCL 15-26A-48 provides:
Within ten days after the filing of the notice of appeal, the appellant shall order from the reporter(s) transcript(s) [sic.] of the proceedings or such parts thereof as deemed necessary. The order shall be in writing on the form prescribed by the Supreme Court, and within the same period service of the order shall be made on all parties to the action and a copy shall be filed with the clerk of the circuit court, (emphasis added).
[¶ 7.] Despite the fact a partial transcript of the November 20, 1996 hearing is contained in the file, the record fails to reflect that the State ordered this transcript after filing its notice of appeal. Therefore, Stepner argues the transcript is not appropriately a part of the appellate record. In support of his argument, he relies on our holding in Baltodano v. North Cent. Health Services, 508 N.W.2d 892, 894 (S.D.1993) that, “[w]here an appellant waives the right to a transcript by failing to order it, the only review which can take place ‘is a review of that portion of the record which was before the circuit court.’ ” (quoting Hawkins v. Peterson, 474 N.W.2d 90, 92-93 (S.D.1991)).
[¶ 8.] Stepner’s reliance on Baltodano is misplaced. In Baltodano, there was no transcript of the trial court proceedings contained in the record and the appellant was attempting to present his version of the facts through a statement of proceedings permitted when ar transcript is “unavailable.” See SDCL 15-26A-54.3 We rejected that attempt on the basis that the transcript was available, but was waived by the appellant’s failure to order it. See SDCL 15-26A-49 (right to transcript waived by failure to order it within time specified).
[¶ 9.] Here, despite the State’s failure to order the transcript, it is contained in the record. It even appears it was in the record before the trial court entered its dismissal order because Judge Tappe’s findings and conclusions make reference to matters discussed during the November 20 hearing at which he was not present. Clearly, the transcript was in the record when the clerk prepared the index on January 27, 1998 because it was included in her certification. See SDCL 15-26A-53.4
Free access — add to your briefcase to read the full text and ask questions with AI
MILLER, Chief Justice.
[¶ 1.] The State appeals the dismissal of controlled substance charges against Byron Stepner for violation of the “180 day rule.” See SDCL 23A-44-5.1.1 We reverse and remand.
[906]*906FACTS
[¶ 2.] In June 1996, Stepner and his wife were indicted for various controlled substance offenses. Stepner was indicted on one count each of possession of controlled substances, possession of marijuana, possession of drug paraphernalia and keeping a place for the sale or use of controlled substances.
[¶ 3.] Both Stepner and his wife were originally represented by attorney Tim James who attempted to negotiate a plea agreement on their behalf. However, as time passed, conflicts developed between Stepner, his wife and James. Stepner’s wife retained her own attorney and James eventually sought to withdraw from the case. His withdrawal was finally permitted in January 1997 when Step-ner’s current counsel was appointed. The following constitutes a chronology of the other pertinent events in this matter:
6/17/96 Stepner’s first appearance before a judicial officer on the indictment.
9/9/96 Stepner’s arraignment before Circuit Judge Caldwell. Step-ner’s counsel requests a trial after the first of the year and states he is authorized to waive Stepner’s rights under the 180 day rule. Judge Caldwell declines counsel’s request and sets the trial for December 4 and 5.
11/19/96 Stepner’s counsel notifies the prosecutor he intends to file a motion to withdraw.
11/20/96 Judge Caldwell hears a motion for a continuance and for waiver of the 180 day rule. She further advises Stepner of his rights under the 180 day rule and requests a waiver of those rights because of his intention to change counsel. Stepner gives an unqualified waiver of his rights under the 180 day rule.
11/26/96 Stepner’s counsel files his motion to withdraw.
12/14/96 The original 180 day time limit for trial expires.
12/18/96 Judge Caldwell conducts a hearing on the motion of Stepner’s counsel to withdraw. She gives Stepner two weeks to hire a new attorney and indicates that, because of the problems getting the case to trial, there should be no 180 day problem. She also states that as soon as Stepner gets a new attorney she will have him execute a waiver of Stepner’s rights under the 180 day rule. Although the judge mentions a possible February trial date, at the prosecutor’s request, she sets the trial for March 20 and 21 or, alternatively, for the end of April.
12/24/96 Judge Caldwell enters an order giving Stepner until January 2, 1997 to retain a new attorney and to have his counsel file a waiver of his rights under the 180 day rule.2
1/6/97 Stepner’s current counsel is appointed.
1/13/97 Judge Caldwell enters an order granting Stepner’s original counsel leave to withdraw.
3/17/97 Stepner files numerous pretrial motions including a motion to dismiss for violation of the 180 day rule.
6/16/97 Stepner files an affidavit for a change of judge.
6/25/97 Stepner files additional pretrial motions and a second motion to dismiss for violation of the 180 day rule.
7/9/97 The presiding judge of the circuit, enters an order granting Step-ner’s request for a change of judge and excluding the delay caused by changing judges from the 180 day period.
7/15/97 The presiding judge appoints Judge Tappe to preside over the case.
8/25/97 Judge Tappe conducts a motions hearing including a hearing on the motions to dismiss for violation of the 180 day rule.
[907]*90712/5/97 Judge Tappe enters findings of fact, conclusions of law and an order dismissing the case for violation of the 180 day rule.
[¶4.] The State appeals the dismissal of the charges against Stepner.
ISSUE ONE
[¶ 5.] The transcript of the November 20, 1996 pretrial hearing was properly before this Court.
[¶ 6.] Stepner raises a preliminary issue regarding the record. SDCL 15-26A-48 provides:
Within ten days after the filing of the notice of appeal, the appellant shall order from the reporter(s) transcript(s) [sic.] of the proceedings or such parts thereof as deemed necessary. The order shall be in writing on the form prescribed by the Supreme Court, and within the same period service of the order shall be made on all parties to the action and a copy shall be filed with the clerk of the circuit court, (emphasis added).
[¶ 7.] Despite the fact a partial transcript of the November 20, 1996 hearing is contained in the file, the record fails to reflect that the State ordered this transcript after filing its notice of appeal. Therefore, Stepner argues the transcript is not appropriately a part of the appellate record. In support of his argument, he relies on our holding in Baltodano v. North Cent. Health Services, 508 N.W.2d 892, 894 (S.D.1993) that, “[w]here an appellant waives the right to a transcript by failing to order it, the only review which can take place ‘is a review of that portion of the record which was before the circuit court.’ ” (quoting Hawkins v. Peterson, 474 N.W.2d 90, 92-93 (S.D.1991)).
[¶ 8.] Stepner’s reliance on Baltodano is misplaced. In Baltodano, there was no transcript of the trial court proceedings contained in the record and the appellant was attempting to present his version of the facts through a statement of proceedings permitted when ar transcript is “unavailable.” See SDCL 15-26A-54.3 We rejected that attempt on the basis that the transcript was available, but was waived by the appellant’s failure to order it. See SDCL 15-26A-49 (right to transcript waived by failure to order it within time specified).
[¶ 9.] Here, despite the State’s failure to order the transcript, it is contained in the record. It even appears it was in the record before the trial court entered its dismissal order because Judge Tappe’s findings and conclusions make reference to matters discussed during the November 20 hearing at which he was not present. Clearly, the transcript was in the record when the clerk prepared the index on January 27, 1998 because it was included in her certification. See SDCL 15-26A-53.4 January 27 was only one day after the State filed its notice of appeal. Therefore, since it was already part of the record there was no need for the State to order the transcript after filing its notice of appeal as SDCL 15-26A-48 would normally require.
[¶ 10.] Stepner additionally contends the transcript should not be considered part of the record because it is analogous to a deposition that has not been introduced as evidence. See e.g. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 9, 580 N.W.2d 606, 610 (deposition testimony not introduced into evidence stricken from settled record). We find this contention equally unpersuasive.
ISSUE TWO
[¶ 11.] The trial court erred in granting Stepner’s motion to dismiss.
[¶ 12.] The trial court calculated that the original 180 days for trial of this case expired on December 14, 1996. However, due to the delay caused by Stepner’s change of counsel, the trial court excluded the forty-eight days between November 19, 1996 and January 6, 1997 from the 180 day calculation. This left a 180 day expiration date of January 31, 1997. Since Stepner was not brought to [908]*908trial by January 31, the trial court dismissed the charges. The State argues the trial court erred and we agree.
[¶ 13.] The trial court’s calculations ignore Stepner’s waiver of his rights under the 180 day rule. During the hearing before Judge Caldwell on November 20,1996, the following exchange took place concerning the 180 day rule:
MR. ROTH [ie., the State’s Attorney]: Your Honor, can I bring up one matter? I have concern about the 180-day rule, and I would like to have something on record about the waiver of that by the defendants. I think it’s important that this is not going to be held against the State.
THE COURT: Right.
MR. DER HAGOPIAN [ie., counsel to Stepner’s wife]: Judge, that’s certainly appropriate, and I think I have it in my written motion, and I would certainly state it for the record now.
Well, actually, you haven’t allowed Mr. James [ie., Stepner’s original counsel] to withdraw, as I recall, but I’m assuming you have. I filed a notice of appearance. I waived the 180 days on her behalf, as far as any delays caused by these additional motions.
MR. ROTH: I would like to hear that from Mr. Stepner as well, to consent to that.
THE COURT: I’m going to ask both of the defendants, and I’m going to need this in writing also, but for the record, you need to understand that you have a right to have your case heard within 180 days. That’s a constitutional right to a speedy trial.
Now, because of changing lawyers, being out of state at this time when we have this hearing, your case is being delayed and it’s basically through no fault of the prosecution. And so in order to continue to proceed at this pace, we need to have both defendants agree that their case can take longer than 180 days.
Do you understand that, Paula [ie., Stepner’s wife]?
DEFENDANT PAULA STEPNER: Yes.
THE COURT: And are you willing to waive your right to a speedy trial at this time?
DEFENDANT PAULA STEPNER: Yes.
THE COURT: And, Byron, do you understand what I’m saying here?
DEFENDANT BYRON STEPNER: Yes, Ma’am.
THE COURT: All right. And you agree to waive your right to a speedy trial?
DEFENDANT BYRON STEPNER: Yes, Ma’am, I do.
THE COURT: All right. And at this time, Mr. James represents you, does he not, Mr. Stepner?
DEFENDANT BYRON STEPNER: Yes, at this time.
THE COURT: All right. So I’m going to ask Mr. James on behalf of Mr. Stepner, and Mr. Der Hagopian on behalf of Mrs. Stepner, to have them sign a document waiving the 180-day rule, and then I will sign an Order that you prepare, ordering the 180-day rule has been waived.
MR. DER HAGOPIAN: Very good.
MR. JAMES: Okay, Your Honor.
[¶ 14.] This discussion reflects that Stepner was advised of his rights under the 180 day rule and that he gave an informed, voluntary and open ended waiver of those rights.
[¶ 15.] Judge Tappe later found the waiver uninfoi'med, involuntary and ineffective because neither the consequences nor the duration of the waiver were explained to Stepner. There are two flaws in this finding. First, it is clearly erroneous. See State v. Pellegrino, 1998 SD 39, ¶ 23, 577 N.W.2d 590, 599 (findings of fact on 180 day issue reviewed under clearly erroneous standard). The above exchange establishes the consequences of the waiver luere explained to Stepner when he was told the prosecution of his ease would take longer than the 180 days required by the rule. Second, we have never required any particular formalities, including advice as to a specific duration, to establish an informed and voluntary waiver of the 180 day rule. See State v. Beynon, 484 N.W.2d 898, 902 (S.D.1992); State v. Martin, 493 N.W.2d 223, 226 (S.D.1992)(no formal requirements for valid waiver of 180 day rule).
[909]*909[¶ 16.] Judge Tappe also found difficulty in accepting Stepner’s waiver of the 180 day rule because no written order was filed approving the waiver pursuant to SDCL 23A-44-5.1(4)(b):
(4) The following periods shall be excluded in computing the time for trial:
[[Image here]]
(b) The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel provided it is approved by the court and a written order filed. A defendant without counsel shall not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial and the effect of his consent [.] (emphasis added).
This provision, however, along with the other subdivisions of SDCL 23A-44-5.K4), only excludes certain periods of delay from the 180 day calculation. It has no applicability where, as here, a defendant waives his rights under the 180 day rule. See State v. Webb, 539 N.W.2d 92, 96—97 (S.D.1995)(Exclusion of time from the 180 day calculation and waiver of 180 day rule viewed as separate issues). As previously noted, we require no particular formalities for such a waiver. See Beynon, supra; Martin, supra.
[¶ 17.] Based upon the foregoing, we accept the State’s argument that Stepner’s unqualified waiver of his rights under the 180 day rule on November 20, 1996 remained effective until his reassertion of those rights with the filing of his motion to dismiss for violation of the 180 day rule on March 17, 1997. That motion, along with a number of other pretrial motions, remained undisposed of until the trial court’s entry of its order of dismissal on December 5, 1997. All of the delay in disposing of these motions is excluded from the 180 day calculation pursuant to SDCL 23A-44-5.1:
(4) The following periods shall be excluded in computing the time for trial:
(a) ... the time from filing until final disposition of pretrial motions of the defendant, including motions brought under § 23A-8-3[.]
[¶ 18.] Based upon Stepner’s waiver of the 180 day rule and the exclusion of time for disposition of his pretrial motions, we conclude that, at the time the trial court dismissed this matter, twenty-four days still remained out of the original 180 days allowed for trial (ie., 180 minus the 156 days between June 17 and November 20, 1996). Accordingly, the trial court erred in granting Step-ner’s motion to dismiss.
[¶ 19.] Reversed and remanded.
[¶ 20.]KONENKAMP and GILBERTSON, Justices, concur.
[¶ 21.] AMUNDSON, Justice, concurs in part and dissents in part.
[¶ 22.] SABERS, Justice, dissents.