State v. Holter, 14068
| Decision Date | 13 September 1983 |
| Docket Number | No. 14068,14068 |
| Citation | 340 N.W.2d 691 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Bob Henry HOLTER, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Reed C. Richards of Richards & Richards, Deadwood, for defendant and appellant; Cynthia A. Howard of Richards & Richards, Deadwood, on brief.
This is an appeal from a sentence issued following conviction for forgery, and from a later revocation of the suspended portion of that sentence. We affirm.
On April 5, 1982, Bob Henry Holter (appellant) was charged with the crime of forgery in violation of SDCL 22-39-36. After pleading guilty, appellant was sentenced by the circuit court in Butte County to three years in the South Dakota State Penitentiary, with the final two years suspended upon fulfillment of certain conditions. While serving the first year of the sentence, appellant escaped from the prison farm facility near Yankton, South Dakota. After his capture, appellant was convicted of escape and sentenced to three and one-half years in the penitentiary by the circuit court in Yankton County.
Following the escape conviction and while still serving the first year of the sentence for forgery, appellant was returned to Butte County Circuit Court. The court found that by escaping from the penitentiary, appellant had violated the suspended portion of his sentence. Therefore the court revoked the suspended sentence and imposed a sentence of three years in the penitentiary for the forgery conviction.
The issues on appeal are: 1) Did the circuit court lack legal authority to sentence appellant to the penitentiary and suspend a portion of that sentence? 2) Did the circuit court properly revoke appellant's suspended sentence, even though appellant had not violated a specific condition of the suspension? 3) Did the circuit court properly revoke appellant's suspended sentence even though appellant had not yet begun to serve the suspended portion of the sentence?
Initially, we examine appellant's claim that the circuit court had no authority to sentence him to three years in the penitentiary, with the final two years suspended, following his plea of guilty to the forgery charges. Appellant maintains that since no statute specifically provides for such a sentence, this court should hold that appellant was actually sentenced to only one year in the penitentiary.
This court has stated on numerous occasions that an issue not presented at the trial level will not be reviewed at the appellate level. The trial court must be given an opportunity to correct any claimed error before we will review it on appeal. State v. Holt, 334 N.W.2d 47 (S.D.1983); State v. O'Connor, 265 N.W.2d 709 (S.D.1978). Appellant did not at any time prior to this appeal raise a claim that his sentence was improper or illegal. Therefore, appellant's claim concerning his original sentence is not properly before this court.
In spite of his failure to make timely objection to the original three-year sentence, appellant contends that this court may still review the sentence under the plain error doctrine. 1 However, we have held that not every error occurring at trial rises to the level of plain error, for the plain error rule must be applied cautiously and only in exceptional circumstances. State v. Brammer, 304 N.W.2d 111 (S.D.1981).
Not only does this case fail to involve the exceptional circumstances required to invoke the plain error doctrine, but more importantly, the record does not indicate that any error occurred at the circuit court level. Since "[i]mposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law[,]" S.D. Const. art. V, Sec. 5, the trial court was well within its power in sentencing appellant to three years in the penitentiary with the final two years suspended. The provisions of SDCL 23A-27-18.1 in effect at the time of sentencing, 2 which allowed a defendant given a suspended sentence to be imprisoned in the county jail for up to sixty days, did not impair the judge's constitutional power to suspend a portion of a penitentiary sentence. Consequently, the sentence imposed by the circuit court was not in error, and appellant has no basis to invoke the plain error doctrine.
We next turn to appellant's contention that, since he did not violate any specific conditions of suspension, the trial court could not revoke the suspended sentence. The four conditions originally placed upon the suspension were: that appellant make restitution to the victims, that he repay court-appointed attorney fees, that he attend counseling, and that he neither consume alcoholic beverages nor frequent establishments where such beverages were sold. The circuit court revoked the suspended sentence because of appellant's escape from the penitentiary.
Until now, this court has not faced the issue of whether it is an implied condition in every suspended sentence that the defendant shall not violate the law. Other jurisdictions have, however, specifically addressed this issue. The overwhelming weight of authority is that a fundamental condition of any suspended sentence or probation, whether expressly stated by the sentencing court or not, is that the defendant shall not violate the law. Wilcox v. State, 395 So.2d 1054 (Ala.1981); Munson v. State, 242 A.2d 313 (Del.1968); State v. McGinnis, 243 N.W.2d 583 (Iowa 1976); State v. Chesnut, 11 Utah 2d 142, 356 P.2d 36 (1960); Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d 343 (1969). In addition, common sense indicates that implicit in any suspension of sentence or probation is that defendant should be on good behavior, not violating the law.
Therefore, we hold that it is an implied condition in every suspended sentence that a defendant shall not violate the law. If a defendant does violate the law, thus violating a condition of his sentence, the sentencing court may revoke the suspension. The trial court properly revoked the suspended portion of appellant's sentence after appellant violated the law by escaping from the penitentiary.
Finally, appellant claims that the trial court could not revoke his suspended sentence before he began to serve the suspended portion of that sentence. This court has never faced the specific issue of whether a trial court may revoke a suspended sentence for acts committed after imposition of the sentence but before commencement of the suspended portion of the sentence.
Again, the great weight of authority is that a trial court may revoke a suspended sentence or probation even before a defendant begins to serve the suspended portion. United States v. Ross, 503 F.2d 940 (5th Cir.1974); State v. Morris, 98 Idaho 328, 563 P.2d 52 (1977); Brown v. Com., 564 S.W.2d 21 (Ky.App.1977); State v. Sullivan, 642 P.2d 1008 (Mont.1982); see Annot., 22 A.L.R.4th 755 (1983). What comes out of these cases is the strong public policy that if a person convicted of a crime and granted a period of probation or suspension as part of the sentence should commit offenses of such nature as to demonstrate to the court that he is unworthy of the suspension, the court has the power to revoke or change the suspension, both during the time of the suspended sentence and before the suspended portion begins. State v. Sullivan, supra.
Appellant's argument that SDCL 23A-27-13 permits revocation of a suspended sentence only while a defendant is serving the suspended part of the sentence is not convincing. 3 First, the statute does not prohibit a court from revoking a suspension before the suspended portion has begun; it merely allows the court to act during the suspension. Second, to give SDCL 23A-27-13 the interpretation appellant desires would be totally inconsistent with the authorities and the policy considerations discussed above. See State v. Sullivan, supra, which dealt with a Montana statute very similar to SDCL 23A-27-13. Therefore, we hold that the trial court properly revoked the suspended sentence after imposition of the sentence but before commencement of the suspended portion of the sentence.
We have examined the other contentions of appellant and find them to be without merit.
The sentences are affirmed.
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