State v. Burkman
Decision Date | 11 July 1979 |
Docket Number | No. 12616,12616 |
Citation | 281 N.W.2d 442 |
Parties | STATE of South Dakota, Plaintiff and Respondent, v. Jeffrey Wayne BURKMAN, Defendant and Appellant. |
Court | South Dakota Supreme Court |
John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.
Sidney B. Strange, Sioux Falls, for defendant and appellant.
Jeffrey Burkman (Burkman) appeals from the revocation of his probation and the imposition of a two-year penitentiary sentence.
(1) Did the trial court apply an erroneous standard of proof to determine w hether Burkman violated a condition of parole?
(2) Was the two-year penitentiary sentence cruel and unusual punishment?
Burkman urges this court to adopt a "clear and convincing" standard of proof in revocation hearings in order to protect the interests discussed in SDCL 23-57-4. We decline to do so.
A proceeding to revoke probation is not a criminal prosecution. 21 Am.Jur.2d Criminal Law § 568. Four standards of proof have been adopted by the various jurisdictions in revocation hearings: 1) reasonably satisfied, United States v. Strada, 503 F.2d 1081 (8th Cir. 1974); 2) a preponderance, State v. McGinnis, 243 N.W.2d 583 (Iowa 1976); 3) clear and convincing, State v. Howard, 193 Neb. 45, 225 N.W.2d 391 (1975); 4) beyond a reasonable doubt, People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974).
In South Dakota, the required standard of proof at a probation revocation proceeding is the "reasonably satisfied" standard. In Application of Jerrel, 77 S.D. 487, 93 N.W.2d 614 (1958) this court said:
Before revoking the suspension of the execution of a sentence by the court there must be some showing that the convicted person's behavior is not good or that he has violated the conditions or restitutions imposed upon him. Such factual showing must be sufficient to justify the exercise of discretion by the court in revoking the suspension.
77 S.D. at 492, 493, 93 N.W.2d at 617.
State v. Elder, 77 S.D. 540, 95 N.W.2d 592 (1959) expressed that 77 S.D. at 545, 95 N.W.2d at 595. We also said that:
Manning v. United States, 5 Cir., 161 F.2d 827, 829.
77 S.D. at 544, 95 N.W.2d at 594.
The "reasonably satisfied" standard is constitutional. United States v. Strada, supra. It has been widely adopted by state and federal courts. South Dakota has adhered to it for years, has found it workable, and has found that it protects the interests of the probationer and the interests of society. We are not convinced that a move away from the "reasonably satisfied" standard is warranted.
We have carefully reviewed the record presented to this court. We are convinced that the "reasonably satisfied" standard was more than adequately met and that the trial court did not err in revoking Burkman's probation.
On September 7, 1977, when Burkman pleaded guilty to violating SDCL 39-17-95, the maximum sentence was five years in the penitentiary, a $5,000 fine, or fine and imprisonment. The court suspended imposition on February 16, 1978. Nine days later the State moved to revoke the suspension of imposition. On September 8, 1978, Burkman was sentenced on his September 7, 1977 plea to two years in the penitentiary. On the date of sentencing, the maximum sentence was two years in the penitentiary, a $2,000 fine, or fine and imprisonment. Burkman argues that he...
To continue reading
Request your trial-
Lewis v. Class, 19651
...of probation, does not constitute a criminal prosecution. State v. Murphy, 506 N.W.2d 130, 132 (S.D.1993) (citing State v. Burkman, 281 N.W.2d 442 (S.D.1979)). Unless the State charges him with a new crime, the only authority it may exercise over an inmate/parolee relates back to the origin......
-
State v. McCormick
...the probationer has not been as good as required under the conditions imposed. State v. Olson, 305 N.W.2d 852 (S.D.1981); State v. Burkman, 281 N.W.2d 442 (S.D.1979).2 Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499 (1972), enumerated the "minimum requiremen......
-
Wink v. State
...v. Brusenhan, 78 N.M. 764, 438 P.2d 174, 176 (App.1968). (Standard is akin to Georgia's standard of "slight evidence"); State v. Burkman, 281 N.W.2d 442, 443 (S.D.1979) ("Four standards of proof have been adopted by the various jurisdictions in revocation hearings: 1) reasonably satisfied; ......
-
State v. Bailey, 16911
...its discretion in revoking probation and its decision will be upheld. State v. Herrlein, 424 N.W.2d 376, 377 (S.D.1988); State v. Burkman, 281 N.W.2d 442, 443 (S.D.1978). Although conviction of a collateral offense is not a prerequisite to revocation, Herrlein, 424 N.W.2d at 378 (Henderson,......