Lead Opinion
Michael Huftile entered a plea of guilty to a charge of second degree rape. He appeals from this sentence imposed by the trial court.
“ADJUDGED, and the sentence is that you, Michael Huftile, upon your conviсtion for the offense of Second Degree Rape, be, and hereby are, sentenced to confinement in the South Dakota State Penitentiary, Sioux Falls, South Dakota, for a term oí fourteen (14) years commencing from June 16, 1984; and it is further
ORDERED, that seven (7) years of the above-said sentence be suspended and that the Defendant be placed on probation for a period often (10) yеars from the date of his sentencing upon the following terms and conditions:
1. That the Defendant agree to and comply with all the rules and regulations of the SD Office of Correctional Services and that he obey all directions and orders of any probation offiсer or officers under whose supervision he may be placed during any portion of his probationary period;
2. That the Defendant avail himself to and attend all counseling services provided by the authorities of the South Dakota State Penitentiary;
3. That the Warden of the South Dakota State Penitentiary shall provide available counseling services to the Defendant during his incarceration at the South Dakota State Penitentiary;
4. That the Defendant shall pay costs of counseling incurred by the victims and their families as a result of his conduct;
5. That the victims and their families shall submit statements of counseling ex*195 penditures to this Court on a yearly basis;
6. That the Defendant, upon his release from the South Dakota Penitentiary, shall forthwith seek and obtain gainful employment and remain gainfully employed to the best of his ability throughout the entire period of his probation...” We reverse and remand for resentencing.
Appellant does not dispute the term of the sеntence, but rather asks that the sentence be reversed and remanded to remove the condition that combines probation with a prison term and a suspension. Huftile argues he is in effect serving 2 sentences for one cоnviction because on June 26, he simultaneously began a seven year penitentiary term and a ten year probationary term. He contends that if he is paroled before the seven years expire, he will be on both parole and probation. Appellant contends that simultaneous incarceration and probation exceeds the sentencing authority of the trial court.
The State counters that Huftile has not preserved this issue for aрpeal because his objection to the sentence went only to its length and not its propriety. State v. Holt,
The defendant frames his argument as an abuse of the trial court’s discretion in sentencing. It appears, however, that the dеfendant is essentially and in effect attacking the legality of the sentence imposed because it exceeds the authority and jurisdiction of the court. In State v. Huth,
Article XIV, seсtions 1 and 2 of the South Dakota Constitution provide that the Board of Charities and Corrections shall control the penal institutions of the state under such rules and restrictions as the Legislature shall provide. SDCL 24-13-3 structures a Board of Pardons and Paroles (Board) to be administered under the direction and supervision of the Board of Charities and Corrections.
SDCL ch. 24-15 sets forth a comprehensive procedure for the Board to grant paroles from the penitеntiary, and the Board may parole a penitentiary inmate. SDCL 24-15-8. SDCL 24-15-11 authorizes it to place reasonable restrictions upon a parolee which are designed to continue his rehabilitation. Parolees, even though released, are considered confined in the legal custody of the warden of the penitentiary, SDCL 24-15-13. All paroled prisoners are under the supervision of the Board of Charities and Corrections. SDCL 24-15-14. This expressly includes persons on parole under a suspended sentence. Id. SDCL ch. 24-15 also provides a procedure for the arrest of the parolee and revocation of parole by the Board.
Article V, section 5 of the South Dakota Constitution provides that imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law.
We are therefore of the opinion that the power of suspension conferred upon trial courts by chapter 126, Laws 1931, may lawfully be exercised by such courts in any criminal case within the purview of such statutе at any time prior to complete loss of jurisdiction over the cause either by removal of the cause to a higher court by appeal or by the expiration of time for appeal from the judgment.
A court which hаs the power to suspend sentence under § 23A-27-18 shall have and retain jurisdiction for the purpose of suspending any such sentence for a period of one year from the effective date of the judgment of conviction, nоtwithstanding the fact that the time for an appeal from such judgment is limited to a shorter period of time. A person whose sentence is suspended pursuant to this section is under the supervision of the board of charities and corrеctions, except as provided in § 23A-27-18.2. The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge. (Emphasis supplied.)
It is noteworthy that SDCL 23A-27-19, like SDCL 24-15-14, places persons paroled by a suspended sentence under the supervision of the Board of Charities and Corrections.
It is clear by these statutes and Hughes, supra, that the sentencing court has the power to suspend a sentence at the time the sentence is imposed and for a period at any time thereafter prior to complete loss of jurisdiction over the cause or for one year from the effective date of the judgment of conviction. State v. Means,
A penitentiary inmate is accordingly eligible for release either by the Board of Charities and Corrections, SDCL 24-15-8, or a suspended sentence from the trial court. Via either route, the inmate becоmes a parolee under the supervision of the Board of Charities and Corrections. See, SDCL 24-15-14; SDCL 23A-27-19. Under SDCL 24-15-24 only the Board of Pardons and Paroles may “revoke the parole and reinstate the terms of the original sentence and conviction.” Uncertainty, if not chaos will result if a parolee is required to satisfy two supervisors; the sentencing court and the Board of Charities and Corrections, each with a different set of restrictions and conditions. It is equally unacceptable to require the defendant to be simultaneously on probation and incarcerated. Those committed to the penitentiary would thus see confusion where they should be exposed to order and certainty. When incarcerated, the inmate is under the exclusive control and custody of the penitentiary. When on probation, he is under the control of the trial court in a manner designed to avoid incarceration.
Probation and inсarceration are therefore mutually exclusive. See, State v. Marshall,
There is an exception to this rationale. SDCL 23A-27-18.1 provides:
The conditions of probation imposed pursuant to § 23A-27-12 or § 23A-27-13 or the cоnditions of suspension of execution imposed pursuant to § 23A-27-18, may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding one hundred eighty days or in the state penitentiary for a specific period not exceeding sixty days or the sentence which was imposed or which may be imposed by law, whichever is less. Any such imprisonment, either in the county jail or state penitentiary, shall be credited tоward any incarceration imposed upon any subsequent revocation of a suspended imposition or execution of sentence. During any such imprisonment the defendant shall be subject to all policies-, rules and regulаtions of the county jail or state penitentiary. (Emphasis in original.)
Therefore, a condition of a suspended sentence may require that the defendant be imprisoned in the state penitentiary for a period not exceeding sixty days, during which timе he shall be subject to all the policies, rules and regulations of the penitentiary. Id. Unlike SDCL 23A-27-19, SDCL 23A-27-18.1 carries no provision for Board of Charities supervision following that confinement. As we noted in Application of Adams, supra, a short penitentiary confinement is obviоusly a part of the courts’ probation therapy to have the first offender get a “taste” of what incarceration and a life of crime involves.
It is not the function of this court to direct what the sentence should be. That is the рrovince of the trial court. The case is accordingly reversed and remanded with direction to fashion a sentence consistent with this decision.
Notes
. SDCL 23A-27-18 provides that upon the first conviction of a felony in this state, the court
Concurrence Opinion
(concurring in result).
I concur in the result of the majority opiniоn for most of the reasons expressed, but more particularly, because incarceration and probation are mutually exclusive.
So there will be no misunderstanding on the part of trial judges, I still adhere to my conclusions in State v. Adams,
I am authorized to state that WOLL-MAN, J., joins in this concurrence in result.