State v. McConnell

495 N.W.2d 658, 1993 S.D. LEXIS 13, 1993 WL 31953

Opinions

AMUNDSON, Justice.

William Michael McConnell (hereinafter “McConnell”) appeals his judgment of conviction for aggravated assault. We affirm the conviction, but reverse the sentence and remand for resentencing.

McConnell was sentenced to eight years in the state penitentiary. While in the penitentiary he will be under supervision of the Department of Corrections, an agency of the executive branch. State v. Wooley, 461 N.W.2d 117 (S.D.1990). SDCL 24-2-1. The circuit court also placed McConnell on probation for eight years starting from the date of his sentencing. As a probationer, McConnell will be under the supervision of the court service department of the judicial branch. SDCL 23A-27-12.1.

This concurrent penitentiary term and probation requirement effectively put McConnell under simultaneous supervision of both the executive and judicial branches of government. In State v. Huftile, 367 N.W.2d 193 (S.D.1985) and Wooley, we held that a defendant convicted of a crime should not be under simultaneous supervision of agencies of two separate branches of government. Based on this established precedent, the sentence is reversed and remanded to the circuit court with direction to fashion a sentence consistent with this decision.

McConnell also argued that the trial court erred by refusing to give a requested jury instruction. We have considered McConnell’s arguments and find them to be without merit. We affirm the trial court’s decision.

MILLER, C.J., and HENDERSON and WUEST, JJ., concur. SABERS, J., concurs specially.