In Re the Application of Thomas Ex Rel. Schmit

360 N.W.2d 513, 1985 S.D. LEXIS 208

• Court: South Dakota Supreme Court
• Decided: January 2, 1985
• Docket: 14306
• Status: Published

Opinions

MORGAN, Justice.

Appellant petitioned for habeas corpus relief in the circuit court seeking relief from a prison term that was imposed after a suspended portion of appellant’s sentence was revoked. The circuit court denied ha-beas corpus relief and we affirm.

On April 7, 1980, after he was convicted of third degree burglary, appellant was sentenced to six years in the penitentiary. Circuit Judge R.E. Brandenburg’s sentence stated: “That two (2) years of the sentence be suspended not to commence until after the four (4) year period upon the following conditions: [during the two year suspended period defendant is to make restitution for damages and pay costs and attorney’s fees].” There were no other specific conditions of the suspended sentence. Judge Brandenburg's sentence also provided: “That the suspended portion of the sentence be served under the supervision of the State Board of Charities and Corrections.”

Appellant was paroled from the penitentiary on June 17, 1982.

On March 22, 1983, appellant was arrested for DWI. At a revocation hearing on April 8, 1983, Circuit Judge Scott Moses decided that appellant had violated the terms of his suspended sentence, revoked appellant’s two year suspended sentence, and ordered him to be returned to the penitentiary according to Judge Brandenburg’s original sentence.

Appellant first contends that Judge Brandenburg had no authority to sentence him to the penitentiary and suspend a portion of the sentence. He relies on SDCL 23A-27-18 and 18.1 which, at the time of appellant’s sentencing, provided:

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. [SDCL 23A-27-18] The conditions of probation imposed pursuant to § 23A-27-12 or § 23A-27-13 or the conditions of suspension of execution imposed pursuant to § 23A-27-18, may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding sixty days or the sentence which was imposed or which may be imposed by law, whichever is less. Such imprisonment may be further restricted to certain days or to certain parts of days specified by the court as part of such conditions. [SDCL 23A-27-18.1]

Appellant argues that these statutes do not authorize a penitentiary term and a suspension of part of the term.

In State v. Hotter, 340 N.W.2d 691, 692-693 (S.D.1983), we upheld the sentencing court’s power to suspend the final two years of a three year penitentiary term and said:

Since “[¿Imposition 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, § 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, 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.¹

Although Hotter did not directly examine SDCL 23A-27-18, nothing in that statute changes what we said about the sentencing court’s power to sentence. See State v. Pettis, 333 N.W.2d 717 (S.D.1983) (A trial court has the discretionary power to suspend a sentence on the condition that defendant pay child support arrearages.).

To read SDCL 23A-27-18 and 18.1 to be violated by the judgment entered herein is too narrow a reading. Article V, § 5 of the South Dakota Constitution provides: “Imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law.” (Emphasis added.) No other statute has been pointed out to us that restricts the sentencing court’s constitutional power to suspend a portion of appellant’s penitentiary sentence. Hence, the court had the power to sentence appellant to the penitentiary and suspend a portion of the sentence.

The sentence certainly complies with SDCL 23A-27-18. It is a first conviction for a felony. The trial court had jurisdiction over the offense and Judge Brandenburg entered a partial suspension and imposed conditions and restitution. SDCL 23A-27-18.1 is the troublesome provision. It provides that “the conditions of suspension of execution ... may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding sixty days ....” To read this statute to say that the legislature has provided that this is the only incarceration that can be imposed is too narrow. We read it to apply to instances where the trial court, in its sentencing scheme, sought to suspend the entire sentence, but to give the defendant a “taste” of what incarceration is like, to discourage him from violating the terms of his suspension. As originally passed, the provision for jail time was sixty days maximum. It was not until 1983 when the jail time was increased to one hundred eighty days and a sixty-day maximum in the penitentiary was added, but the legislature further provided that upon revocation any jail time or penitentiary time spent would be credited against the original sentence. We therefore reaffirm our holding in Holter, supra.

Indeed, to hold that the suspension was illegal and void would put defendant in an anomalous situation. In Friske v. Circuit Court, 51 S.D. 415, 420, 214 N.W. 812, 814 (1927), this court quoted Morgan v. Adams, 226 Fed. 719 (8th Cir.1915): “ ‘Even if the order of suspension is embodied in the judgment which imposes the sentence, nevertheless the sentence is authorized and valid, while the order of suspension is unauthorized and void, and as the latter is separable from the former, the latter falls, while the sentence stands.’ ” The position expressed in Morgan and Friske is in accord with the great weight of authority which holds that a defendant may be required to serve his suspended and otherwise valid sentence notwithstanding the making of an unauthorized and void order suspending the sentence. Annot., 141 A.L.R. 1225, 1229 (1942). Thus, the sentence in this instance would not be a net sentence of four years as would be suggested by the dissent in Holter, supra (Henderson, J., dissenting), but a valid six-year sentence, which defendant should be required to serve subject only to any action of the Board of Pardons and Paroles.

Appellant next contends that the circuit court lacked jurisdiction to revoke his suspended sentence because at the time of the revocation of his sentence the suspended portion of his sentence had not yet begun to run, and he was a parolee who was exclusively under the jurisdiction of the Board of Pardons and Paroles. See SDCL ch. 24-13 and 24-15. In Holter, we rejected the defendant’s argument that SDCL 23A-27-13 only permits revocation of a suspended sentence while a defendant is serving the suspended part of a sentence.² We stated: “[A] trial court may revoke a suspended sentence or probation even before a defendant begins to serve the suspended portion, [cites omitted]” State v. Holter, 340 N.W.2d at 693. Nor does the Governor’s power to grant pardons, S.D. Const, art. IV, § 3, or the State Board of Charities and Correction’s power over state institutions, S.D. Const, art. XIV, §§ 1 and 2, limit the sentencing court’s power as appellant suggests. Even though appellant might also have been a-parolee subject to the supervision of the Board of Pardons and Paroles, appellant has not pointed to any statutory provision that otherwise limits the court’s constitutional power to revoke the suspended portion of a defendant’s sentence before the suspended portion begins to run.³

Appellant also contends that SDCL 23A-27-19 deprived the circuit court of jurisdiction to revoke his sentence. This statute provides:

A court which has the power to suspend sentence under § 23A-27-18 shall have and retain jurisdiction for the purpose of suspending any such sentence for a period of one year from the effective date of the judgment of conviction, notwithstanding the fact that the time for an appeal from such judgment is limited to a shorter period of time. A person whose sentence is suspended pursuant to this section is under the supervision of the board of charities and corrections, except as provided in § 23A-27-18.2. The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge.

This statute is simply an additional grant of power to suspend a sentence after it has been imposed. Nothing in this statute limits the court’s power to suspend a portion of a sentence at the time it is imposed.

Finally, appellant argues that Judge Moses lacked jurisdiction to revoke appellant’s suspended sentence because the conditions of his parole could not be merged into the conditions imposed as part of the suspended sentence to find that appellant had violated any conditions of the suspended sentence. Although it was not one of the conditions of his suspended sentence, appellant’s alleged violation of those conditions apparently was his DWI arrest.⁴ It was not necessary for the circuit court to base its decision on any probation violation, however. “[I]t is an implied condition in every suspended sentence that a defendant shall not violate the law.” State v. Hotter, 340 N.W.2d at 693.

Because appellant’s sentence and the subsequent revocation of his suspended sentence were free of any errors, there was no cause for granting his request for habe-as corpus relief. See SDCL 21-27-16. The order of the circuit court is affirmed.

WOLLMAN, J., and DUNN, Retired Justice, concur. FOSHEIM, C.J., and HENDERSON, J., dissent. WUEST, Acting J., not participating.

1 . Hotter noted the 1983 amendment of SDCL 23A-27-18.1.

2 . The portion of SDCL 23A-27-13 that appellant relies on provides: "A court may revoke such suspension at any time during the probationary period and impose and execute sentence...." (emphasis supplied)

3 . A conflict might some day arise between the conditions imposed by a sentencing court and the supervision exercised by the Board over the same defendant. But we will resolve that conflict when it arises, whether it presents itself as an alleged violation of the separation of powers clause, S.D. Const, art. II, or otherwise.

4 . Although the attorneys referred to three parole agreements and to a parole officer's affidavit that set out appellant's alleged violations, none of these documents are part of the settled record. And even though the attorneys at the revocation hearing stated that they stipulated to the “underlying factual basis” of appellant’s violation, there is no recitation of what these facts were. Appellant is at least forthright enough to state in his brief that his revocation resulted from an arrest for driving while intoxicated. We continue to emphasize the difficulty of appellate review based on matters that are not part of the settled record. See e.g. State v. Tchida, 347 N.W.2d 338, 340 (S.D.1984); Buckley v. State, 337 N.W.2d 822, 823 n. (S.D.1983); Caneva v. Miner’s & Merchant's Bank, 335 N.W.2d 339, 342 (S.D.1983); Pearson v. Adams, 279 N.W.2d 674, 676 (S.D.1979).