Vanden Hoek v. Weber

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶29.] I agree that this case needs to be remanded for resentencing so that the defendant may receive the benefit of the plea agreement he entered into.

[¶ 30.] However, I respectfully dissent from this Court’s direction that this case be remanded to a different circuit judge for that resentencing. There are no facts which establish any bias or improper conduct on the part of the original sentencing court. Moreover, based on the cases I cited in State v. Waldner, 2005 SD 11, ¶¶ 18-22, 692 N.W.2d 187, 193 (Gilbertson, C.J., concurring in part and dissenting in part), and State v. Bracht, 1997 SD 136, ¶¶ 37-38, 573 N.W.2d 176, 185 (Gilbertson, C.J., dissenting), I see no legal basis to do so.