State v. Oban

• Decision Date: 27 November 1984
• Docket Number: No. 14496,14496
• Citation: 372 N.W.2d 125
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Randall Kenneth OBAN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 125

372 N.W.2d 125

STATE of South Dakota, Plaintiff and Appellee, v. Randall Kenneth OBAN, Defendant and Appellant.

No. 14496.

Supreme Court of South Dakota.

Considered on Briefs Nov. 27, 1984.

Decided July 31, 1985.

Thomas H. Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Max A. Gors of Gors, Braun & Carlon, Pierre, for defendant and appellant.

HENDERSON, Justice.

ACTION

This is an appeal from a circuit court order which revoked a gubernatorially commuted supervised suspended sentence and remitted Randall Kenneth Oban (appellant) to the South Dakota State Penitentiary to serve the remainder of a ten-year sentence. ¹ We reverse and remand to the Board of Pardons and Paroles with directions to conduct hearings consistent with the dictates of this ruling.

FACTS

On November 9, 1979, appellant pled guilty to a charge of second-degree burglary. SDCL 22-32-3. On November 29, 1979, appellant was sentenced to the Penitentiary for a term of fifteen years and fined $10,000. The fine, however, was suspended upon the condition that appellant make restitution to his victims. This sentence was later made part of a Judgment of Conviction dated December 12, 1979.

On November 20, 1980, which was within a year of the Judgment of Conviction, by an Order Modifying Sentence bearing that date, the trial court modified the original sentence in that five years of the fifteen-year sentence was suspended upon the condition that appellant be on supervised parole for that period and that he obey all terms of the parole. ² In this Order, the trial court reasoned it had "jurisdiction to modify the sentence under SDCL 23A-31-1...." SDCL 23A-31-1 empowers trial courts to correct an illegal sentence or a sentence imposed in an illegal manner and also empowers the trial court to reduce a sentence within one year after imposition. This statute, however, does not empower trial courts to suspend a portion of the sentence and impose supervised parole in its place. SDCL 23A-27-19 does empower trial courts to suspend sentence under SDCL 23A-27-18 for a period of one year from the effective date of the judgment of conviction. Although we assume the trial court was attempting to act under the purview of the latter statute, we need not address the validity of the trial court's attempted suspended sentence, for as hereinafter outlined, appellant was serving a commuted sentence imposed by the Governor of the State of South Dakota.

On September 1, 1982, Governor William J. Janklow commuted appellant's sentence, and in so doing, imposed a commuted sentence by the following Order:

IT IS ORDERED that the said sentence of the said Randall Oban be, and the same is hereby, commuted from Fifteen (15) years, Five (5) years suspended on condition he be on supervision for Five (5) years to Ten (10) years, Five (5) years suspended on condition he be on supervision for Five (5) years. ^{[ 3} 9

In the Spring of 1983, appellant was paroled from the Penitentiary and on April 4, 1983, he signed an agreement with the Board of Charities and Corrections agreeing to certain conduct during the term of his supervision. One of these conditions was a "no drink rule" whereby appellant promised he would "drink no alcoholic beverages of any kind including 3.2 beer and wine and if I do, I will be in violation of my parole." Appellant's parole officer was George Milos. Milos is not an employee of the Unified Judicial System--the judicial branch--he is an employee of the executive branch.

On June 18, 1983, appellant was arrested for driving while under the influence of an alcoholic beverage. SDCL 32-23-1. Under a plea agreement, the charge was changed and appellant pled guilty to reckless driving. SDCL 32-24-1. Officer Milos decided at this time not to have appellant's parole revoked.

In September 1983, appellant's parole ended and he began to serve the supervised five-year suspended portion of the commuted sentence imposed by Governor Janklow. Appellant was under the direct jurisdiction of the executive branch. At this time, officer Milos informed appellant that "nothing had changed," that he was still bound by the terms of his supervision, and that his supervision would continue until September 1, 1988.

On December 10, 1983, appellant was again arrested for driving while intoxicated. Although he refused a chemical test, he later testified that he had in fact been drinking before his arrest.

Upon the application/request of officer Milos to the circuit court, the circuit court conducted a hearing so as to consider revoking appellant's suspended sentence/supervised parole status. This action was unilaterally taken by Milos by writing a letter to a judge in Pierre, although he could have petitioned the Board of Pardons and Paroles, for whom he worked and which Board had supervision over appellant. At this hearing, both appellant and appellant's parole officer testified. Thereafter, and by Findings of Fact, Conclusions of Law, and an Order dated January 12, 1984, the circuit court concluded that appellant had "violated the conditions of his parole-probation" by consuming alcoholic beverages on the occasions for which he was arrested. It thus ordered appellant's "probationary status" revoked and remitted him to the Penitentiary "to serve the remainder of his sentence as it has been commuted by Order of the Governor...." It is from this Order that appellant now appeals. ⁴

DECISION

Before addressing the specific issues involved in this case, several key distinctions need to be made. The first is the difference between probation, suspended sentences, and parole.

Although we have recognized that suspended execution of sentence and suspended imposition of sentence coupled with probation are alike in spirit, purpose, and practice State v. Elder, 77 S.D. 540, 95 N.W.2d 592 (1959), the traditional distinction between probation and suspended sentences is that the former arises before the imposition of sentence and the latter after imposition of sentence. Campbell, Law of Sentencing Sec. 11 (1978). Therefore, each are different conceptual sentencing theories. This traditional distinction is recognized in South Dakota statutes, for SDCL 23A-27-12 and SDCL 23A-27-13 empower the circuit courts to place an offender on "probation" by suspending the imposition of sentence or without entering a judgment of guilt. SDCL 23A-27-18 also empowers the circuit courts to suspend the execution of a sentence after its imposition and thus put the offender on a "suspended sentence."

Other authorities, in defining the differences between probation and parole, have made the following distinctions.

Probation relates to action taken before the prison door is closed, whereas parole relates to action taken after the door has closed. A parole partakes of the nature of a pardon since it suspends the further execution of a penalty already being inflicted.

21 Am.Jur.2d Criminal Law Sec. 567, at 928 (1981).

A parole is the release of a person from imprisonment whereby, upon specified conditions, he is allowed to serve the balance of his sentence outside prison walls under supervision.

IV Torcia, Wharton's Criminal Procedure Sec. 622, at 245 (12th ed.1976).

Suspended sentences, in South Dakota, are statutorily defined in SDCL 23A-27-18 as follows:

Upon conviction of any misdemeanor or upon the first conviction in this state of a felony, the court having jurisdiction to try the offense may suspend the execution of any sentence imposed during good behavior, subject to such conditions or restitutions as the court may impose. The suspension order or judgment can be made only by the court in which the conviction occurred.

In any event, up to and including State v. Marshall, 247 N.W.2d 484, 487 (S.D.1976), rendered in 1976, this Court had taken the position that "[p]robation ... implies an absence of incarceration." However, the State Legislature, in 1979, enacted SDCL 23A-27-18.1, which permitted imprisonment in the county jail for a period of sixty days as a condition of probation or suspended sentence. In 1983, SDCL 23A-27-18.1 was amended so as to permit imprisonment in the county jail for a period of one hundred eighty days or imprisonment in the State Penitentiary for sixty days as a condition of probation or suspended sentence.

Although probation, suspended sentence, and parole constitute distinct and separate legal concepts, they are often confused and used as interchangeable labels. In the present case, for example, appellant's sentence, as modified by the circuit court and then commuted by the Governor, was denominated probation, suspended sentence, and parole all at the same time. The reality of the situation and the sentence, however, is important, for it determines under whose supervision an offender is and thus who may revoke his regulated freedom. ⁵

The second important distinction concerns the separation of powers and the authority to award probation, suspended sentences, and parole, and thus the authority to revoke the same.

The circuit courts of this state do not have the inherent authority to suspend imposition or execution of a sentence. State v. Huftile, 367 N.W.2d 193 (S.D.1985); State v. Griffee, 331 N.W.2d 576 (S.D.1983); Marshall, 247 N.W.2d 484. Suspended sentences partake of the nature of a pardon which is an exclusive executive, not judicial, power. State ex rel. Payne v. Anderson, 43 S.D. 630, 181 N.W. 839 (1921); S.D. Const. art. IV, Sec. 3. In order for the legislature to confer such power on the circuit courts, a specific constitutional amendment was required. State ex rel. Caldwell v. Skinner, 59 S.D. 68, 238 N.W. 149 (1931); S.D. Const. art. V, Sec. 5. The power to sentence comes from statutory and constitutional provisions. Griffee, 331 N.W.2d 576; State v. Poor Thunder, 302 N.W.2d 412 (S.D.1981).

Under South Dakota Constitution Article V, Sec. 5, and SDCL ch. 23A-27, the circuit courts of this...