*1 conclusion, the In statutory boundaries. ed spe- only exceeded its
sentencing authority when it sentenced statutory
cific the executive branch it violated also
but judicial by using the branch
government traversed, and, moreover, it
government; authority, legislative branch
without empowering stat-
attempting to combine sentence authorized to arrive at a
utes
none of them. that Chief Jus-
I authorized to state am in this dissent on Ra- joins
tice FOSHEIM Two.
tionale Dakota, Plaintiff of South
STATE Appellee, ADAMS, Defendant and
John
Appellant.
No. 14469. Dakota.
Supreme Court South Sept. on Briefs
Considered Jan.
Decided *2 Bastían, Gen., Atty. W. Asst. That the said defendant be under jFohn Pierre, plaintiff appellee; supervision Mark Y. of the Office of Correc- Gen., Pierre, Meierhenry, Atty. on brief. tional during period Services for and a years. four Larson, County Jeff Minnehaha Public The record copy does not reveal that a Defender, Falls, Sioux for defendant and judgment personally was served appellant.
defendant. 1, 1981, WOLLMAN, On Justice. October defendant was re- penitentiary leased from the parole. on As appeals Defendant from an order revok- release, a condition of signed defendant an ing his sentence. affirm. We agreement day that with the Office of Cor- 28, 1980, pleaded On October defendant Services, rectional Board of Charities and guilty charge aggravated to a assault. Corrections, which contained some fourteen 19, 1980, appeared defendant On November separately paragraphs setting numbered Wayne before the Honorable W. Christen- forth the being paroled. conditions of his sen, judges one of the of the Second Judi- One the conditions stated “I that will Circuit, pronounced following cial who obey all laws.” sentence from the bench: 23, 1982, July On defendant was released judgment And it and sentence of parole. At hearing, the revocation this Court that John the defend- stipulated the state that at the time defend- herein, ant be sentenced to a term of six parole ant was released from he was told years in the South Dakota State Peniten- Kinder, parole Don agent, his that he tiary kept there to be and confined in obligation had no further to the Board of regula- accordance with rules and Charities and Corrections. governing tions institution. 4, 1983, July On defendant was arrested order, judgment further the of this Court charge aggravated on a assault. He years judg- that the latter four of this charge September was tried on this on ment and sentence of this Court be sus- 1983, and was guilty found of the lesser pended upon pays the condition that he included simple offense of assault. hospitalization the cost of and medical expenses incurred the victim in this 6, 1983, On October the state filed a case subject .... That he himself to the motion to revoke the 1980 sen- supervision and control of the Office of simple on the of the 1983 as- basis Department Corrections under the Following sault conviction. hearing, Pardons and Paroles. trial court suspension revoked the 1980 day judgment That same a written was remaining sentenced defendant to serve the entered, provided part which years that de- four aggravated of the 1980 assault fendant sentence. imprisoned in
be the South Dakota State Defendant contends that the circuit court Penitentiary, Falls, located Sioux did not have to revoke his sus- County of Minnehaha and State of South pended July sentence in that as of Dakota, for only the Board of Pardons and Paroles had (6) years, Six with said sentence run jurisdiction. such Defendant frames this present concurrent with defendant’s argument in sepa- terms of the doctrine of County sentence in the Minnehaha Jail powers. argues ration of He that under years and with the last four of said present sentencing statutes, once a being suspended sentence fol- sentencing court turns sentenced defend- lowing conditions: ant over to the Office of Correctional Ser- vices, Corrections, That the said defendant reimburse Board of Charities and expenses for medical in- provision there is no in law that would [the victim] curred in connection with recapture this case. allow the trial court juris- agree con- not with Al it has surrendered. Defendant defendant’s contention. diction authorizing a though the fact that that the statute the Office of Correc tends place person under sentencing court tional Services informed defendant that he of Charities supervision under no further obligation to that 23A-27-19, which argument is SDCL agency against imposi provides: type against tion sentence entered defendant, we do not has to sus- believe Of
A court which
*3
§
pend
through
under
shall
fice of Correctional
could
sentence
23A-27-18
Services
pur-
jurisdiction for the
action deprive
and retain
its unilateral
the circuit
have
pose
suspending any
sentence
continuing
recog
of
such
of its
jurisdiction,
court
year
of one
from the effec-
period
Adams,
for a
supra,
nized in Holter and in
to
conviction,
judgment
of the
of
tive date
suspended portion
revoke the
of the sen
notwithstanding the
time
fact that
the
tence.
judgment
from
is
appeal
for an
such
Finally,
defendant makes the relat
A
period of time.
limited to a shorter
arguments
deprived
ed
that he
of
was
liber
pur-
person
suspended
sentence
whose
is
ty
process
without due
of law because he
supervi-
is
the
suant to this section under
knowledge
subject
had no
that he was
to
the board of charities and correc-
sion of
proceedings
upon a
revocation
based
viola
§
tions, except
provided
as
in
23A-27-
law and
tion of
because he had never been
the re-
charged
The board is
with
18.2.
period
of the
of su
four-year
made aware
sponsibility
enforcing
the conditions
pervision.
find
argument
We
to
neither
imposed by
sentencing judge.
the
First, Holter,
in
in
again
have merit.
and
argues
one-year
that
the
Defendant
after
Adams,
implied
we held that it is an
condi
period
ex-
provided
SDCL 23A-27-19
every suspended
tion in
sentence that a
pires,
juris-
court
further
the circuit
has no
shall not
defendant
violate the law. Sec
previously suspended
diction to revoke
ond, defendant was made aware at the time
sentence.
sentencing
subject
that
the
of his
he was
to
in
holdings
conclude that
In
We
our
supervision and
the Office of
control of
Adams,
(S.D.1985),
re
Defendant’s contention government. legislature note We that even if the trial had response taken apparently has no action portion origi revoke the may be that decision Holter. It sentence, once to our authority vanished nal of such Services, imposition about the acting our concern of Correctional the Office however, If, parole agent, discharged de sentences unwarranted. through concern, presumably reason for supervision. Again, we do there is fendant We on wrong Continuing Charities and Corrections will are road. legislative through make its views known get down that road will not us to our backtrack, channels. get destination. We must road, right and then start journey. a new revoking The order sen- wrong. Application lter Ho affirmed. wrong. judges Adams was The circuit state, by MORGAN, J., WUEST, sentencing, try creative are Circuit Justice, legislative/executive Acting ing change Judge, Supreme Court government. scheme of It concur. cannot be done gavel by their robe and nor this Court’s FOSHEIM, C.J., HENDERSON, J., loyalty ato mistake. dissent. key SDCL 23A-27-19 is the statute and FOSHEIM, (dissenting). Chief Justice it has three It sentences. likewise has Parole ais function of the Executive thoughts parts. three The first —three *4 Adams, Department. 360 In Re See part empowering granting is an statute (S.D.1985) (Henderson, Jus N.W.2d 513 jurisdiction trial court suspend to a sen tice, Fosheim, Justice, dissenting and Chief period year for of one from the II”); Holter, “Rationale v. 340 State date effective of the conviction.* See (S.D.1983) (Henderson, 691 N.W.2d J. dis Means, (S.D.1978), State v. 268 802 N.W.2d senting). judge The trial therefore acted holding for juris circuit court retains statutory outside of his authority and in only year diction for one from the effective province vaded the of the Board when he judgment. of part date The second directs undertook parole to revoke defendant’s and that the Board of Charities and Corrections suspended sep sentence. This violates the supervise shall defendants whose sentence powers aration of doctrine. See part under the first of the Hotter, supra; supra. part, statute. Under the third this same given “responsibility board is the for en HENDERSON, (dissenting). Justice forcing imposed by the conditions the sen expressed my For those in reasons dis tencing judge.” (Emphasis supplied.) Holter, 691, in sents v. State 340 N.W.2d 1-15-1 SDCL establishes the of (S.D.1983), Application 694-95 and Ad of Charities and and it Corrections creates as 513, (S.D.1985), ams, I 360 N.W.2d 517 arm govern of Executive Branch Particularly, my dissent. Rationale Two in eight of ment. Two the institutions under Application applicable Adams is here. of Penitentiary this board are the State and regrettable that this Court continues of the Office Correctional Services. SDCL its to holdings. adherence unsound provides Hotter 24-15-14 that the Board of Chari Application and are Adams its authori- and “employ ap ties Corrections is to or ty. Misgivings in majority point now surface the employees may such officers and Oh, opinion. yes, legislature might necessary and the accomplish proper be to su the change well the so that pervision parolees persons law the ill-con- pa precedent ceived will take on (Em a hue of a suspended role under sentence.” legality. will adjudi- mine.) But it? And can phasis supplied Clearly, power we the legislature might cate the what do? to mechanism use the No, rule interpret legisla- government. we must By the Executive Branch of they sentence, tive revoking acts as exist. We cannot tailor the Judi decisions achieve a result government usurped which we cial Branch of legislative power given believe act should be or the Board Charities and might be the future. statute. statute, 23A-31-1(1),
*SDCL
a consistent
allows
a sentence
trial court.
period
for the same
time for the reduction
put its hand on him.
It cannot
review
the sentence
reader will re-read
If the
court,
majority
discretionary
decision
forth in the
nor overrule
as set
the trial
Question
parole
once
obvious
In re
opinion, it will at
become
board. Accord:
specifi-
Review,
that the trial
Concerning
last sentence
State Judicial
defendant-appellant under
463,
(1980).
cally placed
of Corrections Revoking Suspended Sen- court’s Order the sentence Paroles.” With Pardons and And, thereby, Mr. Adams tence. would be so stating, and the statutes specifically so free. my ken beyond it is expressing, specifically at an opinion can arrive majority diametrically opposed thereto. opinion rea- the aforesaid
Finally, reason,
sons, for this additional but to revoke had no
trial court July parole: On
defendant-appellant’s parole by the discharged from he was He was Services. of Correctional Office Dakota, Plaintiff of South STATE informed, Dakota so of South State Appellee, obliga- further that he had “no stipulated, The Department.” tion to in Article II of is found powers clause ZOSS, Defendant Barbara Jo *5 The State Constitution.
the South Dakota Appellant. in this state are government powers of No. divided, says, into three dis- exactly as it exec- legislative, departments, tinct Supreme Dakota. Court South powers and utive, judicial; and the on Briefs Oct. Considered departments are each of those duties of constitution. by the state prescribed 9, 1985. Decided Jan. Therefore, has ruled that it is a this Court powers clause violation have to rule on matters which
for the Court constitutionally placed one of
been v. Brown departments. Dunker
other two Educ., 80 S.D.
County Bd. (1963). The Governor and
N.W.2d Corrections, Board of Charities Paroles, Pardons and
through the Board of grant pardons have exclusive Const, § IV, art. 3 and paroles. S.D. §§ XIV, upon his 1 and 2. Based
art. by the
record, officially told he had been society, es-
sovereign that his debt
sence, paid. The one and branch Depart- Executive government —the “custody supervi- his ment—who had statutorily encharged with the
sion” enforcing the conditions
“responsibility for sentencing judge,” as well
imposed defendant, had taken its rehabilitating defendant-appellant.
sovereign off of hand could not then suffer Branch
The Judicial