*1 66 A.D.2d. 410 N.Y.S.2d added). (emphasis
Vogel, at 326 It follows did refusing not err in Mouttet’s
proposed instructions and 12. hereby
I am authorized to' state Jus- joins
tice Morgan dissent. Dakota,
STATE of South Plaintiff Appellee, OBAN,
Randall Kenneth Defendant Appellant.
No. 14496.
Supreme Court of South Dakota.
Considered on Nov. Briefs July
Decided
HENDERSON, Justice.
ACTION appeal a This an from circuit court gubernatorially a order which revoked com- supervised muted sentence and (appellant) remitted Randall Kenneth Oban to the South Dakota State ten-year of a serve the remainder sen- to the tence.1 We reverse remand with Board of Pardons and Paroles di- hearings rections to conduct consistent ruling. the dictates of this
FACTS appellant pled On November charge guilty second-degree burgla- ry. 22-32-3. On November to the Peni- appellant was sentenced tentiary a term of fifteen for fine, however, $10,000. was fined sus- appellant pended upon the This make restitution to his victims. part Judgment tence later made of a was of Conviction dated December 1979. 20, 1980, which On November was Judgment of year within a of the Convic tion, by Modifying bear an Order Sentence date, the court modified the ing that trial original in that five sentence fifteen-year upon sentence was super the condition period for and that he vised parole.2 In this obey all terms Or der, “juris court reasoned it had trial modify under SDCL diction to 23A-31-1_” the sentence empow- SDCL 23A-31-1 illegal an ers trial courts to correct illegal an tence trial empowers manner and also year after to reduce a sentence within one statute, however, does imposition. Gen., Harmon, Atty. Asst. Thomas H. empower suspend por- trial not courts Pierre, plaintiff appellee; for Mark V. impose supervised tion of the sentence Pierre, Meierhenry, Atty. Gen., on brief. place. does parole in its SDCL 23A-27-19 Carlon, suspend Gors, empower trial courts A. Braun & Max Gors of one Pierre, appellant. under SDCL defendant and Although the court had was never taken Revocation of sentence, modify the the de- SDCL 23A-31-1 an or the Governor. before executive board "parole" improper. Trial notation as grant cannot Appellant year judg- from the date of the effective under the direct Although time, ment of conviction. we assume At executive branch. offi- attempting the trial court to act under cer Milos informed that “nothing statute, purview we need changed,” latter had that he was still bound validity of the trial address the court’s the terms of supervision, and that his attempted suspended for as here- would continue until *3 outlined, serving inafter was appellant 1, 1988. imposed by commuted sentence the Gover- 1983, 10, On appellant December was nor of the Dakota. State of South again driving arrested for while intoxicat- 1, 1982, September On Governor William ed. Although test, he refused chemical appellant’s
J. Janklow commuted he later in testified that he had fact been doing, imposed so commuted sen- drinking before his arrest. by following tence Order: Upon application/request of officer IT IS the said sen ORDERED court, Milos to the circuit the circuit court be, tence of the said Randall Oban and hearing conducted a as to so consider re- hereby, same is from Fif voking (15) (5) years, years suspended teen Five tence/supervised parole status. This ac- supervision he on condition tion unilaterally by taken Milos (10) (5) years, (5) Five to Ten Five writing Pierre, judge letter to a al- suspended on he be on though he petitioned could have the Board (5) years.[3] Five supervision for Paroles, of Pardons and for whom he 1983, Spring pa- worked and which Board had 4, Penitentiary April roled from and on appellant. hearing, over At ap- this both 1983, signed agreement an with the and officer testi- agree- Board of Charities and Corrections Thereafter, Fact, fied. Findings and during to certain conduct term of Law, Conclusions of and an Order dated of these One conditions January 12, 1984, circuit court conclud- whereby appellant was a “no drink rule” ed “violated the had condi- promised he would no alcoholic “drink bev- parole-probation” by tions of his consuming erages any including 3.2 kind beer and beverages alcoholic on the occasions for do, my wine and if I I be in violation of will which he It was arrested. thus ordered parole.” Appellant’s parole officer was appellant’s “probationary status” revoked George employee Milos. is not an Milos and remitted him to the “to System judicial the Unified Judicial serve the his sentence remainder of as it —the employee branch—he is an has been commuted Order of the Gover- nor_” branch. appel- It is this Order that appeals.4 lant now 18, 1983,
On June appellant was arrested driving while under the influence of an DECISION alcoholic beverage. SDCL 32-23-1. Un- plea agreement, charge addressing der a Before issues in- changed appellant pled guilty key volved in this reck- several distinctions driving. need to first is the differ- SDCL 32-24-1. Officer Mi- be made. The appel- probation, suspended los decided at not to ence this time have between tences, lant’s revoked. 1983, recognized Although
In that sus- we have pended suspend- began supervised ended and he serve the execution of sentence coupled five-year suspended imposition pro- ed portion of the commut- of sentence purpose, prac- ed spirit, Governor Janklow. bation are alike in sentencing concepts grant. 4. Note were This is a three constitutional IV, simultaneously recognized. § 3. can be Elder, suspension judgment order or tice, only by the court in which be- made (1959), the traditional distinction occurred. sentences probation tween imposi- former arises before is that the event, up including any In imposi- and the latter after of sentence Marshall, Campbell, Law Sen- sentence. tion of taken the had rendered Court Therefore, each are tencing § implies an “[probation position that ... sentencing theories. conceptual different However, the of incarceration.” absence recognized in traditional distinction is Legislature, in enacted SDCL statutes, 23A-27- Dakota for SDCL South imprison- permitted which empower the cir- 12 and SDCL county jail sixty for a ment in the place “proba- courts to an offender cuit or sus- a condition of days as imposition by suspending the tion” 23A-27- sentence. pended *4 entering judgment a or without sentence imprison- so permit amended as to 18.1 was empowers the also guilt. SDCL 23A-27-18 county jail period of one ment in the for a of a suspend to the execution circuit courts in eighty days imprisonment hundred or put and thus imposition its sentence days a sixty for as the State after “suspended on a sentence.” the offender probation suspended or tence. authorities, defining the differ- Other parole, have probation sentence, and
ences between
Although probation, suspended
following
made the
distinctions.
separate
parole constitute distinct and
concepts, they
confused and
legal
taken be-
are often
relates to action
Probation
closed,
interchangeable
as
labels.
prison
is
whereas
used
fore the
door
example, appellant’s
to
after
parole relates
action taken
tence,
court and
partakes of
as modified
the circuit
parole
closed. A
door has
Governor,
de-
suspends
by the
pardon
of a
since it
then commuted
the nature
sentence,
probation, suspended
penalty
al- nominated
the further execution of
at the
time.
reali-
being
all
same
ready
inflicted.
sentence, how-
ty of the situation and the
567,
928
21 Am.Jur.2d Criminal Law §
ever,
important,
is
for it determines
is and thus
supervision an offender
whose
person
A
is
of a
the release
regulated freedom.5
may revoke his
who
whereby, upon speci-
imprisonment
conditions,
important distinction con-
The second
to serve
fied
is allowed
and the
separation
powers
prison
of his
cerns
balance
sentence outside
suspended
authority
probation,
to award
walls
sentences,
parole,
thus the authori-
Torcía,
Procedure
IV
Wharton’s Criminal
revoke the same.
ty to
(12th ed.1976).
at 245
§
Dakota,
sentences,
state do
The circuit courts of this
Suspended
in South
statutorily
suspend
to
not have the inherent
are
defined
SDCL
or
of a sentence.
imposition
as follows:
execution
(S.D.
193
Huftile,
v.
367 N.W.2d
Upon
any
misdemeanor
1985);
576
Griffee,
v.
in this state
upon the first conviction
or
484.
(S.D.1983); Marshall, 247 N.W.2d
felony,
having jurisdiction
of a
of the nature
Suspended
partake
sentences
suspend the exe-
try
may
the offense
to
executive,
during
pardon
which an exclusive
any
imposed
cution of
sentence
v.
power.
Payne
rel.
behavior,
judicial,
State ex
good
subject to such conditions not
Anderson,
N.W. 839
impose.
43 S.D.
may
as
restitutions
the court
or
clarify
and Correc-
Board of Charities
Acting
Wuest’s concur-
that the
As noted in
Justice
Huftile,
jurisdiction
N.W.2d
result in
to revoke
rence in
tions retains
Legislature
the State
under SDCL 23A-27-18.
so as to
SDCL 23A-27-19 in 1985
amended
Const,
IV,
(1921);
penal
S.D.
art.
order South Dakota
parole,
institutions on
§
legislature
power
to confer
for the
24-15-8;
SDCL 24-13-6 and SDCL
im-
to
courts,
the circuit
constitutional
pose reasonable
parolees,
restrictions on
required.
amendment
State ex rel.
24-15-11;
SDCL
and to
revoke
Skinner,
238 N.W.
Caldwell
SDCL 24-15-20 and SDCL 24-15-24. The
(1931);
V,
5. The
§
circuit
courts
this state do not have the
statutory
to sentence comes from
power, authority,
jurisdiction
to
provisions. Griffee,
and constitutional
331 prisoners,
supervise parolees
or those on
576;
Thunder,
State v. Poor
302 parole
suspended sentence,
under a
toor
(S.D.1981).
Thus,
once an
offender
within
of the executive
South
Under
Dakota Constitution Article
government,
branch
judicial
V,
23A-27,
and SDCL ch.
the circuit
§
branch—the circuit
jurisdic-
court—loses
of this state
empowered
place
tion and control.
State v.
offenders
im-
suspending
N.W.2d 193. This latter statement is
sentence,
sub-
position of
SDCL 23A-27-12 and
ject
exceptions: (1)
to three
23A-27-13,
SDCL 23A-27-
place
offenders
SDCL
19, granting circuit courts continuing juris-
by suspending
on a
suspend
diction to
23A-27-18,
year;
for one
execution
SDCL
(2)
23A-31-1, granting
circuit courts
statutorily
under certain
circum-
mandated
continuing jurisdiction modify
a sentence
statutorily
stances
certain
mandated
(3)
year;
one
ways.
*5
course,
which we earlier alluded. Of
we
very
the
past,
recent
Court has
recognize
when a
circuit court com-
explained
power
the
of the circuit courts to
mits an
to the county jail
offender
under
suspend sentence and
thereafter
Holter,
Cf.,
suspension.
State v.
person
county
who is sentenced to a
[a]
(S.D.1983);
Application
Ad
of
jail as
of suspended imposi-
a condition
Schmit,
ams on
the rationale some of filed the present- we address the two issues herein are important therein to the decision ed. hand, their rulings are not control ling. This case is on the distinguishable I. facts. THE HAS RECKLESS DRIVING INCI- above, power As stated the DENT BEEN WAIVED AS A BASIS pardons, commutations, grant and re FOR PAROLE REVOCATION? WE power is a
prieves held the Governor— THAT IT HOLD HAS NOT. government, the executive branch of IV, 3, above, pardoning pow ap and this in the As outlined facts § necessarily pellant Penitentiary er includes the to sus paroled the thereof, pend portion September sentences or a as was Spring the present in the done case. ex rel. year, same Anderson, Payne 839. Anoth the sentence ended and he be N.W. commuted branch, gan supervised five-year er division of the to serve sus Paroles, however, pended portion gubernatorially Board of Pardons and com power, facts, statutory ap has the certain re muted sentence. Based on these strictions, release those sentenced to now contends that because the reck- ment, do driving was not used to revoke not demand extreme reme- incident Conceivably September dy proceedings. of violation
his
before it ended
however,
it
thereafter
used as
series
minor violations
cannot
be
contention,
conclusively show both the officer
With this
could
basis
revocation.
disagree,
and the court that
rehabilitative ben-
appellant’s
we
because
efits of
effective.
never ended.
delay
free to
officer should be
commenc-
may
An
be released from
offender
proceedings,
revocation
for a reason-
1) may
He
Penitentiary
several routes.
via
time,
period of
while he sees how
able
his
then be
complete
serve
sentence and
probationer
responding.
Unless
discharged. 2) may
He
have his
delay can
shown to have inter-
be
pardoned
commuted
the Governor.
substantially
probationer’s
fered
with the
3)
may
Board of
paroled
He
be
ability
successfully
charge,
refute the
required
Pardons and Paroles
then
is no
of due process
there
violation
serve the remainder of his sentence outside
right
proceed.
no waiver of the state’s
4)
but under
Or,
may,
under the dictates
II.
23A-27-19,
year
one
released within
COULD THE PAROLE
BY
IMPOSED
judgment
from the
date of the
effective
THE
VIRTUE OF
GUBERNATORIAL-
suspension
execu-
a court
LY COMMUTED SUSPENDED SEN-
latter three
tion of sentence. Under the
BE
TENCE
REVOKED BY THE CIR-
routes,
su-
remains under the
offender
A
COURT FOR
OF
CUIT
VIOLATION
pervision
the executive branch
BY
CONDITION IMPOSED
A PAROLE
government.
OFFICER?
HOLD THE
WE
CIRCUIT
COURT WAS WITHOUT JURISDIC-
was commuted and
thereof
TION TO
REVOKE.
SO
suspended by
also
When
Governor.
Appellant contends that since the Gover-
under the
commuting
suspending
nor’s Order
tence ended in
he was still
sentence failed to establish conditions
*6
por-
parole by
suspended
on
virtue
regulated
supervision,
his
his
freedom
of
gubernatorial
tion
the
commutation.
not be
for violat-
thereunder could
revoked
Thus, appellant cannot be heard to com-
ing
parole
a condition
his
offi-
if
plain
appropriate authority
the
revokes
specifically, appellant
More
cer.
is assert-
parole
oc-
his
on
violation which
based
ing the
did
because
Governor’s Order
just
prior
months
the com-
curred
six
to
state
not drink
not
could
proceedings.
revocation
mencement of
alcohol,
liberty permitted thereby
the
could
a six-month hiatus does not constitute
Such
drinking.
rea-
not be revoked for
For the
waiver,
prejudicial delay,
or the
delineated, however, we
sons hereinafter
stockpiling
appropri-
of
as
violations
to bar
jur-
hold that the circuit court was without
ap-
proceedings
ate revocation
the
before
to
isdiction
revoke
Ap-
propriate
based thereon.
remand to the Board of Pardons and
we
argues
Mi-
in his brief that officer
hearings
as
Paroles so
to conduct
concern-
gave
revoking
him
not
los
a break
revoking
propriety
the
of
reck-
parole because of
June
1983
parole.
driving charge.
argument
takes
gave
the hue
officer Milos
that because
Initially, we note that “this court
break,”
appellant “a
waiver has surfaced.
required
to
note of
sponte
sua
take
agree.
quote
approval
do not
We
We
deficiencies,
present
whether
jurisdictional
Teal,
P.2d
v.
105 Idaho
670
parties
Knight
not.
Long
ed
v.
(1983):
911
Co.,
(S.D.1978);
262
207
Es
N.W.2d
Const.
(S.D.
Putnam,
often
vio-
131 (1973).” ucts, parole agreement appropriate 212 and the N.W.2d 498 au- 87 Therefore, at revoke his thority can Huftile, violation a time although appellant present failed to of its conditions. This case is therefore raise the ly objection jurisdiction below and failed to and remanded reversed appeal, jurisdiction issue we of the Board Pardons and Paroles with herein estopped, required and indeed are hearings conduct concerning directions to this issue. address propriety revoking appellant’s pa- role. powers government Da- The in South among three are divided into and kota Const, art. II. Control
branches. FOSHEIM, C.J., MORGAN, J., and penal Board of institutions is WUEST, Judge, Acting Supreme Circuit as such rules and Corrections under Charities Justice, Court concur. shall regulations legislature as the WOLLMAN, J., and 2. dissents. XIV, make. S.D. §§ The Board of Charities and Corrections WOLLMAN, (dissenting). Justice govern- arm “an of the executive branch ment.” 367 N.W.2d at Governor As I read Janklow’s commuta however, Paroles, Board of Pardons and order, merely length it reduced the supervi- which is under the direction and required time defendant would and Correc- of the Board Charities sion spend penitentiary in the state from ten tions, grants parole re- imposes years way five and in no affected 24-13-3; SDCL Huftile; strictions. SDCL the trial court’s order that defendant be 24-13-6; 24-15-8; 24-15-11. SDCL years. for five Accord also is The Board of Pardons and Paroles our ingly, holdings in State v. Mar 24- parole. empowered to revoke (S.D.1985); tin, N.W.2d 37 15-20; SDCL 24-15-24. The circuit (S.D.1985); Adams, N.W.2d re In empowered of this state are not (S.D.1985); Adams, Holter, acted within its the trial court ease, portion revoking suspended of de Peniten sentenced to a term of in the sentence. fendant’s Thereafter, the tiary by the court. circuit original suspended part circuit court discussing after interesting that I find it sentence. Governor Janklow then commut probation, length the distinction between ed the sentence recog- sentences and thereof, thereby substituting authority among allocation of nizing the court-imposed sentence for the sentence. government branches of re- the several *7 being After committed to the Penitentia concepts, majori- discrete garding those ry the Board of ty opinion purports to direct —the branch— paroled under and Paroles to conduct revoca- Pardons ended, he when hearing in this case. still virtue of the the order revocation. I would affirm gubernatorial commutation. long jurisdiction. The circuit court had lost presented
When officer court,
appellant’s violations to the circuit presented application his revocation still wrong authority. Appellant only of Pardons the Board Since
and Paroles could revoke still was still on he was of his
bound the terms conditions