State v. Olson, 13227

• Decision Date: 20 May 1981
• Docket Number: No. 13227,13227
• Citation: 305 N.W.2d 852
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Marshall Ray OLSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 852

305 N.W.2d 852

STATE of South Dakota, Plaintiff and Appellee, v. Marshall Ray OLSON, Defendant and Appellant.

No. 13227.

Supreme Court of South Dakota.

Argued April 22, 1981.

Decided May 20, 1981.

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

John P. Abbott of Abbott & Abbott, Brandon, for defendant and appellant.

DUNN, Justice.

This is an appeal from an order revoking a suspended imposition of sentence. We affirm.

On October 2, 1979, Marshall Ray Olson (appellant), pleaded guilty to first-degree burglary and was sentenced to five years in the South Dakota State Penitentiary. The sentence was suspended on the following terms and conditions: (1) That appellant execute the standard probation agreement; (2) that appellant consult with a psychiatrist during probation or as long as necessary; and (3) that appellant consent to a full and complete polygraph monitored clear-out.

On May 29, 1980, appellant was arraigned on four counts of violating SDCL 22-21-1(1) ¹ and one count of violating SDCL 22-35-5. ² The four counts based upon SDCL 22-21-1(1) related to appellant's trespass onto the property of the "Women's Fitness Center" of the YMCA located in Sioux Falls, South Dakota. ³ The single count based upon SDCL 22-35-5 related to an alleged trespass at Augustana College in Sioux Falls.

Appellant pleaded not guilty to these charges and a preliminary hearing was scheduled for July 1, 1980; however, prior to the preliminary hearing a motion was made by the State to revoke the suspension of appellant's prior sentence on the burglary conviction. A hearing on this motion was held on July 30, 1980.

At the revocation hearing it was clearly established that appellant was within the "Women's Fitness Center" of the Sioux Falls YMCA. On three separate occasions he was merely seen inside the Center. On March 20, 1980, however, two ladies were using the sunlamp room at the Center; and while they were lying nude in the sunlamp room, appellant pulled back the partitioning curtain and stared at these two naked women. This "peeping tom" was identified by one of the ladies at the revocation hearing as definitely being the appellant. These incidents resulted in the lower court's granting of the State's motion to revoke.

The only issue on appeal is: Whether the trial court acted properly in revoking appellant's suspended execution of the prior sentence?

SDCL 23A-27-13 states, in part, that: "A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period." Furthermore, SDCL 23A-27-20 states that: "A court shall not revoke a probation or a suspension of imposition of sentence, except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. A defendant may be admitted to bail pending such hearing." We hold that both statutes herein were complied with.

This Court, as recently as State v. Burkman, 281 N.W.2d 442 (S.D.1979), has recognized that revocation proceedings are not criminal prosecutions. Instead, they are civil proceedings. The standard of proof in such cases is that the trial court must be "reasonably satisfied" that the conduct of the probationer has not been as good as required by the conditions imposed. Proof sufficient to support a criminal conviction is not required. " '(A)n order of revocation, however, must be based on a factual showing sufficient to justify the exercise of the court's discretion. Otherwise, no particular source, manner, or degree of proof is required.' " Burkman, supra, at 443, quoting ...