Turo v. Solem

427 N.W.2d 843, 1988 S.D. LEXIS 118, 1988 WL 84871

Opinions

MILLER, Justice.

ACTION

State appeals an order of the trial court granting Charlene Turo’s (Turo) application for a writ of habeas corpus. We reverse.

FACTS

Turo was placed on three years probation for passing a no account check. Subsequently, Turo’s probation was revoked and she was sentenced to serve 18 months in the penitentiary with execution of the latter 12 months suspended on two conditions (neither of which is involved in this appeal). After serving approximately one and one half months in the penitentiary, Turo was released on parole under certain conditions imposed by the Board of Pardons and Paroles. These conditions, unlike those imposed by the sentencing judge on the suspended sentence, included a requirement that Turo periodically report to a parole agent.

One week before Turo’s parole period ended, Turo met with her parole agent. The agent explained to Turo that she was about to go on suspended sentence status and that the conditions of her suspended sentence would be the same as they had been for her parole. Turo also signed a “contract” agreeing to abide by the conditions of her parole and suspended sentence and signifying her understanding that failure to comply with the conditions enumerated in the contract (including the condition that she periodically report to a parole agent) would constitute a violation of her parole or her suspended sentence.

In April 1987, Turo’s suspended sentence was revoked for her failure to report to a parole agent as directed. Turo was ordered to serve the entire remaining 12 months of her sentence. After revocation of her suspended sentence, Turo applied to the trial court for a writ of habeas corpus which was later granted.

ISSUE

Whether a suspended sentence may be revoked for violation of conditions of the suspension imposed by the Board of Pardons and Paroles rather than by the sentencing judge?

DECISION

Resolution of the issue in this case turns on interpretation of the relationship between two statutes, SDCL 23A-27-19 (suspended sentences) and SDCL 24-15-11 (paroles). SDCL 23A-27-19 provides that an offender whose sentence is suspended subsequent to an incarceration in the penitentiary is under the supervision of the Board of Charities and Corrections

Footnotes

•

* and states, “[t]he board is charged with the responsibility for enforcing the conditions imposed [on the suspended sentence] by the sentencing judge.” SDCL 23A-27-19 also gives the Board of Pardons and Paroles jurisdiction to revoke a suspended portion of a sentence for violation, “of the terms of the suspension.” SDCL'24-15-11 permits the Board of Pardons and Paroles to place reasonable restrictions upon a parolee it releases from the penitentiary which are designed to continue the parolee’s rehabilitation.

In reaching its decision in this matter, the trial court strictly construed the language quoted from SDCL 23A-27-19 to mean that Turo’s suspended sentence could be revoked only for a violation of conditions of the suspension which were imposed by the sentencing judge. Since periodic contact with a parole agent was a condition imposed by the Board of Pardons and Paroles and not the sentencing judge, the trial court held that the board had no authority to revoke Turo’s suspended sentence. The trial court reasoned that release of an offender under a suspended sentence is separate and distinct from release under parole. Therefore, the trial court concluded that SDCL 24-15-11 allowing the board to place reasonable restrictions upon a parolee released from the penitentiary was inapplicable to Turo’s release under a suspended sentence.

The trial court’s decision, however, failed to take into account certain jurisdictional principles involved in the suspension of a sentence by a sentencing judge (a member of the judicial branch of government) and parole of an offender by the Board of Pardons and Paroles (an agency of the executive branch of government). These principles are carefully set forth in State v. Oban, 372 N.W.2d 125 (S.D.1985). The trial court declined to rely on Oban because the case is factually distinguishable from Turo’s. Nevertheless, Oban’s discussion of judicial versus executive jurisdiction over suspended sentences and paroles cannot be ignored in resolving the issue now before this court.

Oban recognizes that suspended sentences and paroles are alike in practice. Oban, 372 N.W.2d at 127-128. Both in volve the release of an offender from the penitentiary prior to expiration of the full term of the offender’s sentence. However, Oban stresses that suspended sentences and paroles are distinct and separate legal concepts. Id. at 128. The distinction between the two flows primarily from the separate jurisdictional authority exercised by a sentencing judge in suspending execution of a sentence and by the Board of Pardons and Paroles in granting a parole. Id. at 128-129.

Circuit court judges do not have inherent jurisdictional authority to suspend a sentence. Oban, 372 N.W.2d at 128. Suspended sentences are in the nature of a pardon which is an exclusive executive, not judicial power. Id. Judicial authority to suspend sentences arises solely from an amendment to the state constitution and subsequently enacted statutory provisions. Id. at 129. Furthermore, once an offender is within the jurisdiction of the executive branch after commencing service of a sentence, the judicial branch loses jurisdiction and control. Id. at 129 citing State v. Huftile, 367 N.W.2d 193 (S.D.1985). Thus, when an offender is released from the penitentiary either under a parole or under a suspended sentence, the offender is under the supervision of the executive branch of government. Oban, 372 N.W.2d at 130.

Given the jurisdictional predominance of the executive branch over the supervision of offenders released from the penitentiary, we find that the trial court erred in strictly construing the language of SDCL 23A-27-19 (suspended sentences) against the Board of Charities and Corrections (an executive branch agency). The provision of SDCL 23A-27-19 requiring the board to enforce the conditions of a suspended sentence imposed by a sentencing judge should not be read as limiting the power of the board to place additional restrictions on the release of an offender (SDCL 24-15-11) in the exercise of its executive branch jurisdiction. Rather, the provision is more properly viewed as a recognition of the jurisdiction of the executive branch over the supervision of offenders released from the penitentiary. SDCL 23A-27-19 (suspended sentences) merely gives a sentencing judge the authority to have the conditions he places on a suspended sentence enforced by the Board of Charities and Corrections in addition to restrictions the board may place on the release of the offender under SDCL 24-15-11. To hold otherwise by following the interpretation of the trial court results in an intrusion by the judicial branch of government upon the jurisdiction of the executive branch.

Moreover, the above interpretation of the relationship between SDCL 23A-27-19 (suspended sentences) and SDCL 24-15-11 (parole) gives concurrent effect to both statutes and makes them stand together as required by the rules of statutory construction. Island v. Warkenthien, 287 N.W.2d 487, 488 (S.D.1980) citing Farmers and Merchants Bank, etc. v. Ksenych, 252 N.W.2d 220, 222-223 (S.D.1977). So long as the conditions of release imposed by the Board of Pardons and Paroles are reasonable and consistent with those imposed on a suspended sentence by a sentencing judge, there is no conflict between the statutes and one need not be given dominant effect over the other.

In this instance, the condition that Turo periodically report to a parole agent during the suspended portion of her sentence was both reasonable and consistent with the conditions of suspension imposed by the sentencing court. We note that the record in this case reflects that Turo’s original sentence of probation required her to serve under the supervision of a court services worker who, as a condition of probation, required Turo to make periodic reports. Thus, little argument can be made that Turo was unfamiliar with the reporting requirement or that it was at odds with the objectives of the sentencing judge.

Accordingly, the trial court order granting Turo’s application for a writ of habeas corpus is reversed.

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

SDCL 23A-27-19 was amended during the 1988 legislative session to transfer this supervisory responsibility from the Board of Charities and Corrections to the Board of Pardons and Paroles. 1988 S.D. Laws ch. 192.