interpreting a prior version of the statute
How later courts described this case
- interpreting a prior version of the statute
- “Probation by its very nature implies an absence of incarceration.”
Written by the judges who cited it.
The opinion
COLER, Justice
(dissenting).
I agree with the dissent of Justice Woll-man but would add thereto. As I read the constitution, the determination as to whether there should be leniency afforded an offender is the sole prerogative of the trial court under either the prior or now existing provisions of the State Constitution.
SDCL 23-57-4, as last amended by Chapter 149 of the Session Laws of 1972, does not contain words of limitation as required of legislation under Article V, § 5 of the constitution of this state.
Prior to its repeal by the adoption of a revised Judicial Article in 1972, Article V, § 39 of the South Dakota Constitution read:
“The Legislature may empower all courts having jurisdiction to try offenses under the laws of this state, and the judges thereof, to suspend sentences of persons convicted, for the first time, of crime under the laws of this state, during good behavior, and subject to such conditions and restitution as the court or the judge thereof may impose.”
As contrasted to the foregoing provision, which required legislative authority to cloak the trial courts with such power, the last paragraph of Article V, § 5 of the current State Constitution is an outright grant of authority to the trial courts in clear language, to wit:
“Imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law.”
The outdated language of SDCL 23-57-4 set forth in the majority opinion merely parrots the limitation of the trial court’s authority to first offense convictions contained in the old constitution and otherwise is framed as a grant of authority as required by the former constitutional provision. SDCL 23-57-4 fails entirely to place any limitations upon the Court as contemplated under the new constitutional provision. The constitution no longer limits the application of judicial leniency to first offense convictions and nothing within the statute otherwise limits the trial court as to the conditions which may be imposed upon an offender. Until such time as the Legislature revises SDCL 23-57-4 to take into account the unlimited power of the trial courts under the current constitution, I believe the trial courts are at liberty to require some incarceration as a condition to suspended imposition of execution of sentence.
I would affirm the order of the trial court.