*1 Dakota, STATE South Plaintiff Appellee, MARTIN,
Darrell Defendant Appellant.
No. 14687.
Supreme Court South Dakota. 5, 1985. February on Briefs
Considered 1, 1985. May
Decided Sundem, Gen.,
Sherri L. Atty. Asst. Pierre, plaintiff for appellee; Mark V. Meierhenry, Gen., Atty. Pierre, on the brief. Hauge Bakewell, Hauge
Todd D. & Heide, Custer, Vander for defendant and appellant.
WOLLMAN,Justice. appeals order of the circuit that reinstated three-year suspended portion of his prison term suspend- and the balance of his ed fine. We affirm. February third-degree burglary by
convicted County jury. On March Custer eight years defendant was sentenced to Penitentiary South $7,000.00. peni- fined $4,000.00 tentiary sentence of the fine were condition that de- fendant make restitution to the victim amount sentencing, reim- months the date expended burse Custer for funds court-ap- and reimburse defendant’s pointed counsel difference for the between owing legal amount total paid by legal services rendered. Defendant’s conviction was af- Martin, appeal. firmed eligible parole on Defendant became *2 30, discharged he has 1980. He remained under been from his entire 14, until December 1982. parole supervision sentence and was restored to his full 14, rights citizenship of as of December 1982, Schuft, 2, A. defend- July On Scott 1982. by agent, parole informed defendant ant’s a restitution and fine letter that receiving letter, After went per month had been schedule of $30.00 defendant’s residence was but unable The approved by the court. letter find defendant. pay- failure to make consistent stated that 22, 1983, On a let- Schuft sent hearing. result in a ments could violation Attorney County ter to the State’s that the sus- The letter advised defendant outlining problems having he was of his sentence pended portion would defendant. As of that date defendant had 14, 1985. Defendant end until December paid a total of under restitution $60.00 he would under also informed that be was fine, plan, on and on that supervision until time. Schuft’s fees. The Custer 3, 1983, January (erroneously dated On Attorney petition filed State’s for revoca- 3, January Schuft wrote to defend- 10, on March ant, certifi- enclosing copy of defendant’s On the matter was discharge advising and cate brought hearing on before the circuit suspended supervi- him that his The court court. determined that defend begun on December sion had ant was in violation of the terms condi 14, 1985. Defend- would end on December imposed upon tions him at the time of informed that still ant was also felony The sentencing for the conviction. every report to Schuft necessary for specifically found that defendant had month. failed to make restitution January Schuft wrote defendant months, that he had victim because defendant’s to reimburse Custer failed monthly report send in a December. that he had that he was letter advised defendant that he failed had January De- meet with Schuft appointments remain in contact and meeting. at appear fendant failed to Although parole agent. there January Schuft received a partially some evidence Rapid City attorney regarding letter from a disabled, found, judge upon the trial based suspended The let- sentence. defendant, his in-court observation of part: ter stated totally defendant was not disabled and that position It is Mr. Martin’s at he had some to work (8) eight effect has served the entire partial payments least fine and (5) years he served for five Accordingly, him. tri against assessed years forgiven the warden portions suspended al court revoked part sentence be- additional and ordered that be the sentence good cause of time. contends returned to the South Dakota State Peni sentence would additional tentiary remaining serve the three actually jail an increase term be original sentence and that defendant sentence issued after the entire amount of the be impermissible be under would originally imposed.* statutes. is Although defendant has raised three matter, please you review this Would first appeal, sues on conclude that the mind of South keeping in that the State adversely Mr. issues have been answered has certified to * 23A-27-19, jurisdiction sus- to revoke the Corrections the We note that SDCL as amended (SB 236), July Legislature pended portion the 1985 effective of a 1985, places with the Board Adams, our decisions cient fide legally bona efforts acquire (S.D.1985);Application pay, the resources to the court re- (S.D.1985); voke and sentence the defend- Holter, to imprisonment ant within the authoriz- range ed its Accordingly, authority. we will discuss these issues no further. Georgia, Bearden v. 461 U.S. *3 2064, 2072-73, S.Ct. 76 L.Ed.2d 233 principal Defendant’s contention is that
he has been unlawfully and unconstitution- imprisoned ally due his indigency. to Be- We conclude that the trial court’s issue, addressing fore we review findings brief- respect ability to defendant’s ly principles regarding some basic revoca- to make at least payment some towards proceedings. restitution, attorney adequate find support in the record. “A proceeding probation to revoke Granted, apparently does suffer prosecution.” is not a criminal v. State physical disability. some On the oth Burkman, (S.D.1979). 281 N.W.2d 443 hand, however, er there is evidence that he probation, Before a trial court revoke payments during made some early por “reasonably it must be satisfied” a probation period. tion of the violation of the terms and conditions testify himself did not at the revocation probation has occurred. Id. hearing, notwithstanding attorney’s ad Olson, (S.D.1981). vice that he do so. The letter from his proceedings Probation revocation apparently privately attorney retained to enough permit should be flexible agent Schuft as stands a stark denial trial to consider evidence that would present claim he is unable not be in admissible a criminal trial. State at least some re as Dammer, (S.D.1980). v. N.W.2d 869 quired by probation. the conditions of his expres The letter is more an than principles mind, in With these we turn to sion of defendant’s unilateral determination defendant’s contention that he has been longer he no bound the terms unconstitutionally deprived of his freedom word, probation. and conditions of In a solely inability pay appears that defendant was content restitution, fine, attorney court-ordered flout trial court’s order. In Eagle fees. White v. 280 N.W.2d (S.D.1979), we held that a condition adequacy In addition repay support finding that defendant evidence to the trial court’s only upon finding fees could be a ability enforced that defendant had the to make at capa- the court that the least some his court-ordered making obligations, finding In payment. ble of such the trial court’s Huth, in citing in defendant had decision contact Eagle, White agent required by di “probation we held Schuft as cannot be revoked given by agent nonpayment rectives of fees and costs aas adequately supported by more than [probationer] if condition does adequate, record and constitutes an inde pay.” have pendent ground for the of de revocation fendant’s Shortly after our decision was rendered is affirmed. Huth, Supreme Court United
States held that J„ WUEST, MORGAN, Circuit proceedings for failure Justice, Judge, Acting Supreme as Court restitution, or concur. inquire court must into the reasons for J., probationer FOSHEIM, C.J., pay. If the willful-
ly refused failed make or suffi-
FOSHEIM, Chief Justice Martin was sentenced March Defendant, appellant, prison now eight year years of his sentence was for months. From date conviction to suspended. He released receipt discharge, nearly penitentiary from the elapsed. Believing paid he had his debt the trial court society, protested writing, by an attor portion of the sen- revoked the ney, attempt System’s to reach peniten- tence and returned supervise discharge. out after tiary. Application correct. See In Huftile, (S.D.1985) (Hender said: son, J., dissenting, Fosheim, C.J., join accordingly inmate is dissent); ing “Rationale Two” of eligible for release either the Board *4 (S.D.1985) Corrections, SDCL 24-15- (Henderson, J., Fosheim, C.J., dissent suspended sentence from the trial or a ing); Griffee, route, either the inmate be- court. Via 1983); Means, N.W.2d parolee supervision under the comes a also, Dunker Brown Board of Charities Corrections. Educ., Bd. S.D. 24-15-14; See, SDCL 23A-27-19. SDCL (1963); Sorenson only Under 24-15-24 the Board of SDCL Const, IV, (Wyo.1979); P.2d 1031 S.D. art. and Paroles Pardons “revoke § §§ 2; XIV, 3 and 1 and art. accord with reinstate the terms Question my Concerning view: In re original sentence and Un- conviction.” Review, 199 Colo. certainty, if chaos will if a result P.2d 1340 parolee satisfy super- As we have before us an invasion of the visors; court and govern- domain of the executive branch of Corrections, each Board of Charities government, judicial ment branch of set of a different restrictions Further, I I dissent because nei- conditions. majority opinion ther trial court nor the Affirming this revocation inconsistent recognizes the difference between a sus- the very and fuels confusion Huftile (such here) pended as the case we there tried to settle. Justice cannot ensue
Moreover, parole and are dis- tinctly concepts separate and cannot be merged.