The STATE of South Dakota, Plaintiff and Respondent, v. William MARSHALL, Defendant and Appellant.
No. 11940.
Supreme Court of South Dakota.
Dec. 3, 1976.
247 N.W.2d 484
Neither can it be said that there has been an unlawful redelegation by the school boards to the SDHSAA. Thе rules of the association are in reality the rules of the member school boards. By becoming a member of the association, the school board chooses to make the rules its own. Nothing compels membership; nothing prevents a school board from withdrawing from the SDHSAA should an undesirable rule be adopted. Quimby v. School District No. 21 of Pinal County, 1969, 10 Ariz.App. 69, 455 P.2d 1019.
If officials of a school desire to associate with other schools and prescribe eligibility standards for student participation in interscholastic activitiеs, and member schools vest enforcement of those rules with the association, then a court should not interfere in the internal affairs of that association. State ex rel. Missouri State High School Activities Ass‘n v. Schoenlaub, 1974, Mo., 507 S.W.2d 354; Scott v. Kilpatrick, supra; Quimby v. School Dist. No. 21 of Pinal County, supra; Brown v. Wells, 1970, 288 Minn. 468, 181 N.W.2d 708; Tennessee Secondary Sch. Athletic Ass‘n v. Cox, 1968, 221 Tenn. 164, 425 S.W.2d 597; Robinson v. Illinois High School Association, 1963, 45 Ill.App.2d 277, 195 N.E.2d 38; Starkey v. Board of Ed. of Davis County School Dist., supra; State ex rel. Ohio High School Athletic Ass‘n v. Judges of Court of Common Pleas, 1962, 173 Ohio St. 239, 181 N.E.2d 261.
“In the absence of any evidence of fraud or collusion, or that the defendants acted unreasonably, arbitrarily, or capriciously, the Athletic Association must be, under the authorities citеd, permitted to enforce its rules and orders without interference by the courts.” State ex rel. Missouri State High School Activities Association v. Schoenlaub, 1974, Mo., 507 S.W.2d 354, 358, quoting Robinson v. Illinois High School Association, 1963, 45 Ill.App.2d 277, 195 N.E.2d 38, 43.
We have considered plaintiff‘s contentions and we find no merit to the assertion that thеre has been an unlawful delegation of legislative power to the SDHSAA. Any legislative delegation found in
Affirmed.
All the Justices concur.
Ronald G. Schmidt, Schmidt & Schroyer, P. C., Pierre, for defendant and appellant.
WINANS, Justice.
Defendant, William Marshall, pled guilty to embezzlement of public monies in violation of
Defendant was charged by information with embezzlement of public funds from the municipal liquor store in Midland, South Dakota. After a preliminary hearing, he was held to answer in circuit court. He was arraigned on November 17, 1975 and pled guilty. A pre-sentence investigation was ordered at that time. On December 19, 1975 the trial judge entered an order suspending imposition of sentence pursuant to
On January 5, 1976 defendant moved for revision of the order to havе the prison term removed; he also sought to withdraw the plea of guilty. Both motions were denied by the court on March 17, 1976. Defendant filed notice of appeal on March 24, 1976.
Suspended imposition of sentence is authorized by
“Upon receiving a verdict or plea of guilty in the case оf any person never before convicted of a felony in this state for any offense not punishable by death or life imprisonment, the court having jurisdiction of the defendant, when satisfied that the ends of justice and the best interest of the public аs well as the defendant will be served thereby, may without entering a judgment of guilt, and with the consent of such person, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and сonditions as the court may deem best, provided that the court may revoke the suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period. Upon proper showing of the observance of all conditions imposed the probationer may be discharged by the court and a formal entry of such discharge be filed with the clerk of courts of the county having jurisdiction of thе offense. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person. Any discharge and dismissal under this section shall be reported to the division of criminal investigation pursuant to
SDCL 23-5 and23-6 .”
The language of the statute is broad. The part pertinеnt to this appeal allows the trial court to impose such terms and conditions of probation “as the court may deem best.” The question before this court is whether this broad language permits a trial judge to prescribe incarceration as a condition of probation.
The power to suspend imposition of sentence is not a power inherent in the courts or legislature of this state. It is a power, which like that of suspended execution of sentence, had to be granted by constitutional amendment.1 See State ex rel. Conway v. Hughes, 1934, 62 S.D. 579, 255 N.W. 800. When the legislature invested this power with the courts, it placed no explicit limitations on the conditions that may be imposed. In dealing with the precursor of
There is no doubt that probation pursuant to the statute is a matter of grace lying within the discretion of the trial judge. State v. Elder, 1959, 77 S.D. 540, 95 N.W.2d 592; Application of Jerrel, 1958, 77 S.D. 487, 93 N.W.2d 614. We have held that great flexibility is essential to accomplish the purposes of the statute. State v. Long, 1971, 85 S.D. 431, 185 N.W.2d 472. While the language of the statute is certainly broad enough to allow this court to find that imprisonment is a proper condition to attach to probation, we decline to do so. The question is one of public policy; the legislature is a more suitable forum for such matters.
There appears to be a wide variety of approaches among the various jurisdictions
Probation by its very nature implies an absence of incarceration. It is intended as an alternative to confinement in cases where the trial judge deems that both the defendant and the public would benefit. In suspended imposition cases its purpose is to allow the first-time offender to rehabilitate himself without the trauma of imprisonment or the stigma of a сonviction record. Protection is provided the public through supervision by a probation officer and the continuing jurisdiction of the trial court to revoke probation and impose sentence should any of the conditions of probation be violated. See Roberts v. United States, 1943, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; Yates v. United States, 1962, 10th Cir., 308 F.2d 737; State v. Nuss, supra; People v. Ledford, supra. We hold that to make imprisonment a condition of probation absent specific statutory authorization, is both illegal and unreasonable.
Having determined the condition imposed to be invalid, we are nоw asked by defendant to strike it from the order. The state would have us remand for resentencing. It is evident from the record that the trial judge thought the defendant worthy of probation. Whatever purpose he sought to fulfill by imposing the thirty day jail term, it is not so integral to the overall plan of rehabilitation that the entire order must fall.2 The trial court continues to have jurisdiction to add conditions to the probation or to revoke the probation if the conditions are violated. The purposes behind the suspended imposition of sentence statute are satisfied by the order absent the invalid condition. Consequently, we reverse the trial court to the extent of the invalid condition, numbered 3 on the probation order.
Reversed.
DUNN, C. J., and ZASTROW, J., concur.
WOLLMAN and COLER, JJ., dissent.
WOLLMAN, Justice (dissenting).
I am persuaded that the language of
Even if I concurred in the majority opinion, I would hold that the case be remanded to the circuit court for resentencing. On thе basis of the truncated record before us, we are not justified in presuming that the trial judge would have suspended imposition of sentence and placed defendant on straight probation had he known that defendant would not be required to sрend any
COLER, Justice (dissenting).
I agree with the dissent оf Justice Wollman but would add thereto. As I read the constitution, the determination as to whether there should be leniency afforded an offender is the sole prerogative of the trial court under either the prior or now existing provisions of thе State Constitution.
Prior to its repeal by the adoption of a revised Judicial Article in 1972,
“The Legislature may empower all courts having jurisdiction to try offenses under the laws of this state, and the judges thereof, to suspend sentences of persons convicted, for the first time, of crime under the laws of this state, during good behavior, and subject to such conditions and restitution as the court or the judge thereof may impose.”
As contrasted to the foregoing provision, which required legislative authority to cloak the trial courts with such power, the last paragraph of
“Imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law.”
The outdated language of
I would affirm the order of the trial court.