State v. Schempp, 17781

• Decision Date: 29 May 1992
• Docket Number: No. 17781,17781
• Citation: 498 N.W.2d 618
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jon E. SCHEMPP, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 618

498 N.W.2d 618

STATE of South Dakota, Plaintiff and Appellee, v. Jon E. SCHEMPP, Defendant and Appellant.

No. 17781.

Supreme Court of South Dakota.

Considered on Briefs May 29, 1992.

Decided April 7, 1993.

Mark Barnett, Atty. Gen., Charles D. McGuigan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

John Peterson of Johnson, Eklund and Abourezk, Gregory, for defendant and appellant.

PER CURIAM.

Jon E. Schempp appeals an order in which the trial court held that it had no authority to suspend imposition of a sentence. We reverse and remand.

FACTS

On October 20, 1990, a series of disturbances, which have become known as the "Hobo Days Riots," occurred on the campus of South Dakota State University in Brookings. Schempp participated in those riots. Like many of the riot participants, part of his role in the riot was captured on film. For instance, he participated in toppling a light pole. After the light pole fell, Schempp hoisted it above his head and marched down the street leading, literally, hundreds of other rioters and spectators. Later, he led a similar "march" while carrying a bicycle rack over his head. Witnesses later described Schempp as one of the leaders of the riots. Pictures of Schempp carrying the light pole and leading the crowd were later used as evidence against him.

Police responded to the campus disturbance. Schempp then attempted to blend into the crowd and pass himself off as a spectator. Time passed before several students recognized Schempp in the crowd, pointed him out to the police, and identified him as a leader of the riot. When the police attempted to arrest Schempp, he pulled himself free, hit a police officer twice, and attempted to run away. He was apprehended shortly thereafter and placed under arrest.

A grand jury charged him with encouraging or soliciting violence in riot, aggravated assault, and escape. After a full trial, a jury found Schempp not guilty of encouraging or soliciting violence in riot and not guilty of aggravated assault. However, he was found guilty of riot and escape. On July 2, 1991, the trial court entered two separate judgments for the riot and escape convictions. These judgments were filed on July 10, 1992. Both judgments provided for a sentence of two years in the state penitentiary, to run consecutively. For each conviction, the trial court suspended execution of the sentence and imposed certain probation conditions. Schempp was required to serve 180 days in the Brookings County Detention Center for the riot conviction and a concurrent 60-day sentence for the escape conviction. He was also required to serve two years probation, make full restitution for the damages he caused, and write a letter to the Brookings Register apologizing for his actions.

On October 30, 1991, Schempp moved for relief from his judgments of conviction. He asked the trial court to suspend the imposition of both sentences (pursuant to SDCL 23A-27-13) so that he could attend college and also regain his hunting privileges. State resisted the motion. The trial court concluded that it had authority, under SDCL 23A-27-4.1, to grant relief from the original judgments of conviction. ^* The trial court amended the judgment on the riot conviction so that it became a suspended imposition of sentence. However, the trial court concluded that SDCL 23A-27-13 prohibited it from suspending the imposition of the sentence for the escape conviction. The trial court explained:

SDCL 23A-27-13 simply provides that a person is only entitled to a suspended imposition of sentence if he has never been before convicted of a crime.

In this case, although the offenses were closely connected in time and location, they were two separate and distinct acts, and each offense had separate and distinct elements. There were two separate indictments and two separate sentences. The fact that there was one trial is not controlling.

Schempp appeals and argues that the trial court erroneously interpreted and applied that statute.

ISSUE

This appeal presents a purely legal issue for our consideration: What authority does a trial court have to suspend imposition of sentence when a defendant is simultaneously convicted of two separate crimes?

State has unnecessarily complicated this case by arguing that the trial court exercised its discretion and decided not to suspend the imposition of the escape sentence. Contrary to the State's contention, the trial court did not exercise its discretion. Rather, the trial court found, as a matter of law, that it did not have authority to suspend the imposition of sentence. We must decide whether the trial court reached the correct legal conclusion. We are not called upon to decide, nor do we express an opinion on, whether the imposition of Schempp's sentence should be suspended.

DECISION

Article 5, Section 5 of the South Dakota Constitution provides, in part: "Imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law." (emphasis added). In other words, the courts have full authority to suspend the imposition of sentence in all cases, except where specifically restricted by statute. See generally, State v. Huftile, 367 N.W.2d 193, 195 (S.D.1985).

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