RAPID CITY, S.D. — It's been 27 years since Charles Rhines stabbed a former co-worker to death while burglarizing a Rapid City doughnut shop. And it's been 26 years since a jury found him guilty of premeditated first-degree murder and sentenced him to death.

Now, it's time for that sentence to be executed, according to the South Dakota Attorney General's Office.

"Rhines has eluded justice for 27 years" the office wrote in a motion asking a judge to grant a warrant of execution. "It is time for Rhines to serve his sentence," the motion says, suggesting an execution date between Nov. 3-9.

The father of the victim, 22-year-old Donnivan Schaeffer, recently had open-heart surgery and is in "failing health," the motion says. Delaying the execution could impact whether Schaeffer's father "lives to see justice done for his murdered son."

But John Murphy, Rhines' defense lawyer, said it would be unfair to issue the warrant while his client has two open lawsuits in state and federal court.

"It makes much more sense to hold off setting an execution date in Mr. Rhines' case until that litigation is resolved," Murphy, of Rapid City, told the Rapid City Journal.

Murphy and the Attorney General's Office will have the chance to argue their positions during a 10:15 a.m. hearing Tuesday in front of Judge Robert Mandel at state court in Rapid City. Rhines will appear on a TV screen via a video feed from prison, court records show.

Attorney General Jason Ravnsborg plans to argue for the state but is not making any comments until the hearing is complete, said spokesman Tim Bormann.

Rhines is currently suing Darin Young, warden of the South Dakota State Penitentiary, in the federal Eighth Circuit Court of Appeals, according to Murphy's response to the motion. He's arguing it was unconstitutional for Young to prevent him from accessing experts his lawyers' retained to help with his clemency petition. It's clear the judges are "treating that case seriously" because they rejected a request from South Dakota to speed up the case so Rhines could be executed at an earlier date.

Rhines also has a lawsuit at the state court in Minnehaha County, according to Murphy's response. The lawsuit argues that South Dakota's lethal injection protocol violates state law.

Rhines has also tried to appeal his case to the Supreme Court, but it declined to hear it. He argued that his sentence is unconstitutional because the jury was homophobic and decided to sentence Rhines to death rather than life in prison because they thought he would enjoy being in prison with other men. His lawyers said an original jury note and recent interviews with jurors show they were motivated by homophobia.

Journal archives show jurors found multiple aggravating factors — killing for money, killing a witness to a crime and killing with a depraved mind — in the murder, when only one is required for the death penalty. Jurors who spoke with the Journal at the time said they discussed the aggravating factors and if they felt the Rhines deserved the death penalty. One woman said she thought about the images of Schaeffer — who was stabbed in the stomach, back and skull — and how awful his killing was.

Schaeffer's family said in a 2012 interview that they support the jury's decision.

The South Dakota and national ACLU asked Gov. Kristi Noem to grant Rhines clemency, but she said she agrees with the Board of Pardons and Paroles' decision to deny clemency and has no plans to stop his execution.