State v. Aspen

I dissent. Although I agree that the double jeopardy clause may apply to some enhancement proceeding issues, it does not apply here. Initially, I must observe that it is settled law that a person may be tried a second time for an offense that has been set aside on appeal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 *886(1896). See generally State v. Percy, 81 S.D. 519, 137 N.W.2d 888 (S.D.1965). This principle alone could justify an affirmance here.

Further, the majority opinion, in misapplying double…