State v. Huftile
367 N.W.2d 193
S.D.
1985
Check Treatment

*1 193 27, (S.D. Rysavy, 262 N.W.2d 33 Carlson v. 1978); and Chicago also Morin v. see Dakota, STATE of South Plaintiff Railway System, 87 S.D.

Northwestern Appellee, 447, (1973); Riiff, 895 209 N.W.2d State v. v. 467, (1950). 73 S.D. HUFTILE, Michael Defendant do not trial We believe that Appellant. its permitting court abused discretion in No. 14658. testimony of Dr. Profes Brown. As a аuthority sor of Economics noted Supreme Court South Dakota. issue, the instant Dr. than Brown more 6, qualified Considered on Briefs sufficiently Feb. 1985. the trial upon legal proceeding was not erroneous 24, April Decided Moreover, standards. because thе amount damages to be awarded issue is a factual fact, to be determined the trier of we

review the issue on clear under the

ly Pope standard. erroneous See

Brown, Appel presented expert opinion

lant no evidence

from which we could find the trial court’s

adoption Dr. analysis clearly Brown’s

erroneous; appellant merely cross-exam

ined Dr. Brown. Consequently, affirm we adoption

the trial court’s of Dr. Brown’s

analysis to the amount of damages,

while neither repudiate we endorse nor future,

“total offset” method for the we

hold that it is the law of the case. Accord

ingly, affirm we the trial court on this

issue.

FOSHEIM, C.J., and MORGAN and

HENDERSON, JJ., concur.

WOLLMAN, J., concurs in dis- part.

sents in

WOLLMAN, Justice (concurring part, part).

dissenting in Lale,

Although Anderson v. (1974), represents the law

of this state insofar as the recovery for the

wrongful concerned, death of a minor is I

would extend the rule of that case to

wrongful death involving actions adults. agree

I the majority with opinion’s hold-

ing purposes that for the this case

trial court did not err adopting Dr. calculating

Brown’s total offset method of

appellee’s economic loss. *2 Vrooman, Gen., Atty. B.

Robert Asst. S.D., Pierre, plaintiff appellee; Gen., Pierre, ‍​‌‌‌​​​‌‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌​‌‍Meierhenry, Atty. V. Mark S.D., on brief. Miner,

Jana Public Defender for Pen- S.D., nington County Rapid City, for de- appеllant. fendant and FOSHEIM, Chief Justice. plea guilty

Michael Huftile entered a charge degree rape. to a of second He appeals imposed by from this sentence trial court.

“ADJUDGED, and the sentence is that Huftile, you, upon your Michael convic- Degree for the tion offense of Second be, are, Rape, hereby sentenced to in the South Dakota State confinement Falls, Dakota, Penitentiary, Sioux South (14) for a term oí years com- fourteen 16, 1984; mencing and it is June from further ORDERED, (7) years that seven above-said sentence be ‍​‌‌‌​​​‌‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌​‌‍placed proba- Defendant (10) years often from sentencing upon the date his the fol- lowing terms and conditions: agree 1. That the Defendant to and comply with all the rules and of the SD Office of Correctional Services obey that he all directions and orders officer or officers under supervision may placed whose he dur- ing any portion probationary peri- of his od;

2. That the Defendant avail himself counseling pro- to аnd attend all services vided the authorities of the South Penitentiary; Dakota State 3. That the Warden of the South Da- Penitentiary provide kota State shall counseling available services to De- during fendant his at the incarceration Penitentiаry; South Dakota State pay That the Defendant shall costs counseling incurred the victims and conduct; their families as a result of his 5. That the victims and their families counseling submit statements ex- shall State, 59, 108 yearly Compare, penditures to this Court on a ba- Darnall sis; (1961) regardless of whether claims of the Defendant, properly defendant were upon his re-

6. That the presented by timely objection. lease from South Dakota Penitentia- is the ry, gain- seek and obtain forthwith rule state must employment gainfully ful and rеmain em- appear from affirmatively the record and through- ployed ability to the of his best required sponte this court is sua to take *3 probation...” out the entire of his jurisdictional deficiencies, note of whether parties presented by thе or Long not. v. resentencing. ‍​‌‌‌​​​‌‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌​‌‍We reverse and remand for Co., Knight (S.D. Const. 262 207 Appellant dispute not term does the of 1978); Putnam, Estate 254 N.W.2d 460 of sentence, rather the sen- the but asks that (S.D.1977); Shryock v. Mitchell Concrete and to remove tence reversed remandеd Products, 566, 87 212 S.D. N.W.2d 498 probation condition that combines with the (1973). prison suspension. a term and a Huftile argues serving he 2 is in effect sentences XIV, Article sections 1 and 2 of the 26, one because he for conviction on June provide South Dakota Constitution that the began peniten- simultaneously year a seven of and Board Charities Corrections shall tiary year ten probationary term and a penal control the institutions of the state paroled He if term. contends that he is such and under restriсtions as the years expire, the will before seven he be on Legislature provide. SDCL 24-13-3 parole probation. Appellant con- both structures a Board of Pardons and Paroles tends that simultaneous incarceration and (Board) to bе administered under the di- sentencing authority the exceeds supervision rection and of the Board of of the trial court. Charities and Corrections. The State counters that Huftile has comprehen- ch. sets forth SDCL 24-15 a preserved issue appeal not because procedure grant the pa- sive Board to objection only his to the sentence to went penitentiary, roles from the and the Board length propriety. its its and not State v. may parole a inmate. SDCL Holt, (S.D.1983); 334 47 Comparе, 24-15-8. SDCL 24-15-11 authorizes it to 23A-25-4; 15-6-51(b). SDCL Lang SDCL parolee place upon reasonable restrictions Burns, 626, v. 77 97 S.D. N.W.2d 863 designed are to continue which his rehabili- (1959). repeatedly We that have held the released, Parolees, though tation. even given trial court opportunity must be to legal custody in considered confined the of error, any objec correct claimed and if the warden 24- the of the SDCL tion did not that allow correction we will prisoners paroled 15-13. All the are under appeal. not review the claimed error on supervision of Board of the Charities and Holter, (S.D.1983). v. State 340 N.W.2d 691 ex- Corrections. SDCL 24-15-14. This argument

The defendant frames his pressly persons parole includes on under a anas abuse of the trial in court’s discretion suspended sentence. Id. SDCL ch. 24-15 sentencing. however, appears, provides procedure also for the arrest of essentially defendant is effect at parolee parole by the the revocation tacking legality the im the sentence Board. posed authority bеcause it exceeds the V, jurisdiction section Huth, court. In 5 of the South the v. State Article (S.D.1983), provides imposi 334 N.W.2d Dakota Constitution that 485 we that if noted void, a sentence is the or of a specifically failure to execution sentence objеct prevent suspended empowered does im by not review. We will to review a pose provid to if determine sentence unless otherwise suspend it exceeds the by authority of the trial court. law.1 im- ed provides state, felony SDCL upon 23A-27-18 that thе first of a in this the court conviction the effective date of the springs year for one from of sentences execution position or Means, provision v. judgment constitutional of conviction. State that solely from power. v. any (S.D.1978). inherent Stаte from In v. 268 N.W.2d 802 State (S.D.1983); State (S.D.1985), ‍​‌‌‌​​​‌‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌​‌‍Griffee, Adams, and In 360 N.W.2d 519 Marshall, 247 N.W.2d (S.D.1985), v. Adams, we 360 N.W.2d 513 Re Conway Hughes, rel. In ex previous holding in Hotter confirmed our (1934), said: 579, we N.W. simply an addi- that SDCL 23A-27-19 opinion are therefore We grant power suspend a sen- tional upon conferred trial suspension power оf imposed. after it has been tence 1931, may Laws by chapter courts such courts lawfully be exercised accordingly A inmate is purview any case within criminal eligible for release either the Board prior to com- at time such statute Corrections, 24-15-8, Charities cause jurisdiction over the plete loss of the trial sentence from or *4 high- to a by of the cause either removal route, either the inmate be court. Via expiration byor the of by appeal er court supervision of parolee comes a under the judgment. appeal from the time for the Board of Charities and Corrections. years In eleven N.W.2d at 803. 24-15-14; See, SDCL 23A-27-19. SDCL enact- 23A-27-19 was Hughes, after SDCL only of Under SDCL 24-15-24 the Board provides: ed which may pa Pardons and Pаroles “revoke the power the to sus- A court which has original role and reinstate the terms of the § under 23A-27-18 shall pend sentence Uncertainty, if sentence and conviction.” pur- the jurisdiction retain for have and parolee required if not сhaos will result a is any such sentence pose suspending of sentencing satisfy supervisors; to two the year from the effec- period for a of one the Board of and Cor court and Charities conviction, judgment of tive date of the rections, a set of re each with different notwithstanding the time the fact that equally strictions and conditions. It is un judgment is from such for acceptable require the defendant to be to period of time. A limited to a shorter simultaneously and incarcer suspended person whose sentence is committed to the ated. Those pursuant to this section is under the they thus see confusion where would supervision the board charities of certainty. exposed to order and should corrections, except provided as incarcerated, When the inmate is under the § charged The board is 23A-27-18.2. peni custody control and of the exclusive responsibility enforcing the with the probation, tentiary. When on he is under imposed by sentencing the conditions in a mannеr the control of the trial court judge. (Emphasis supplied.) designed to avoid incarceration. 23A-27-19, noteworthy that It is SDCL 24-15-14, places persons paroled like SDCL are Probation and incarceration by suspended supervi- under the a See, mutually thеrefore exclusive. State v. the Board of and Correc- sion of Charities (S.D.1976). Marshall, 247 Tri tions. they judges al to commended when designed to undertake to frame a sentence by clear these It is statutes defendant, of the socie best meet the needs supra, sentencing court Hughes, However, ty the victim. no matter power suspend has the to a sentence at the intended, cannot ex how well a sentence imposed time the sentence is and for a statutory boundaries. prior cеed at time thereafter to com Grif plete fee, loss of over the cause or 331 N.W.2d 576 may impose. having jurisdiction try to the sus- conditions as the court offense subject pend the execution of sentence to such subject establishes the Bоard which time 1-15-1 he shall be to all the an arm policies, Charities and Corrections as peni- of the government. tentiary. executive branch Just 23A-27-19, the Id. Unlike SDCL the clearly, trial court’s function sus provision SDCL 23A-27-18.1 no carries granting pending sentence and terms оf supervision Board of following Charities exclusively province the probation are that confinement. As we noted in Applica- judicial branch. The constitutional Adams, supra, tion a short suspend necessarily power to includes the obviоusly confinement is power suspension, revoke that to unless probation therapy courts’ to have the first law, V, ‍​‌‌‌​​​‌‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌​​‌‌​​​‌‌​‌‌‌‌​‌‌‌‌‌​‌‍provided Article sec otherwise get offender a “taste” of what incarcera- case, expressly provided 5. In it is this tion and life of crime involves. by statute that the Board of Charities function of granted power has been Corrections to direct what the sentence should be. paroled revoke when the inmate has been province That is the of the trial court. virtuе aof sentence. SDCL accordingly case is reversed remanded 24-15; conclude, ch. SDCL 23A-27-19. We with direction fashion a sentence consist therefore, that once the court has commit ent with this decision. ted defendant to the executive brаnch of government, namely HENDERSON, JJ., MORGAN and con- and, only by inmate then can be released cur. supervision under the of the Board of Char Corrections, though ities and even the re *5 J„ WOLLMAN, WUEST, Circuit suspension. lease results from an order of Judge, Acting Justice, a Supremе Court exception There to this rationale. in concur result. provides: SDCL 23A-27-18.1 WUEST, Acting (concurring Justice in probation imposed conditions of result). § § pursuant to 23A-27-12 or 23A-27-13 majority I concur in the result or suspension the conditions execu- opinion for exрressed, § most the reasons 23A-27-18, imposed pursuant particularly, but more because incarcera- may requirement include the mutually tion and exclusive. imprisoned defendant be in the county jail specific period exceeding for a not misundеrstanding So there will be no one eighty days hundred or in the state judges, my of trial I still adhere specific period not ex- Adams, conclusions in sixty ceeding days or the sentence which (S.D.1985); although may it be that the imposed imposed was or may which be Hotter, legislature overruled it and State v. by law, Any whichever is less. such (S.D.1983), Applica- imprisonment, county in jail either or Schmit, tion Adams On Behalf state shall be credited to- Senate Bill 236 See any ward imposed upon incarceration 23A-27-19, amending July effective any subsеquent suspend- revocation of 1, 1985. ed imposition or execution of sentence. imprisonment During such the de- I am authorized to state that WOLL- subject policies-, to all fendant MAN, J., joins in this concurrence in result. county jail (Emphasis or penitentiary. state original.)

Therefore, suspend a condition of a

ed require that the defendant imprisoned the state exceeding sixty days, during