January 31, 1977

Mr. Arthur L. Canary, Executive Director 
Board of Pardons and Paroles 
Post Office Box 911 
Sioux Falls, South Dakota 57101

Official Opinion No. 77-15

Computing parole eligibility on consecutive sentences

Dear Mr. Canary:

You have requested an opinion based on the following factual situation:

FACTS: 

Inmate “X” was recently received at the penitentiary to serve three ten- year consecutive sentences.  Pursuant to SDCL 23-60-4, the Board of Pardons and Paroles must now determine the date “X” will be eligible for parole.

Based on the above facts, you ask the following questions:

QUESTIONS: 

1.  For the purpose of computing parole eligibility, should the three sentences be considered separately or should they be added together? 
    
2.  Would the method of computing parole eligibility be affected by the number of informations filed?

IN RE QUESTION NO. 1:

The statutes in question provide: 
    
23-60-6. A person who shall have been convicted of a felony for the first time shall be eligible for parole after he shall have served one-fourth of the time for which he was sentenced, allowing time earned for good behavior. 
    
23-60-9. A person who shall have been convicted of a felony two or more times previously shall be eligible for parole after he shall have served three-fourths of the time for which he was sentenced, allowing time earned for good behavior.

It is quite obvious that the date of eligibility of “X” under your factual situation will vary significantly depending on which statute is applied.

The law is silent as to the criteria which are to be considered when consecutive sentences result.  SDCL 23-60-10 states that concurrent sentences imposed as a result of convictions on several counts of an information or indictment are to be considered as one conviction.  However, no mention is made of consecutive sentences and I do not believe it would be proper to infer that said omission was merely an oversight.

In the absence of any legislative direction, it is my opinion that the more logical and consistent interpretation is to also consider consecutive sentences as a single conviction for purposes of determining parole eligibility.  A similar question was decided in State v. Burke, 124 N.W.2d 457 (Wisc. 1963).  The Wisconsin Supreme Court held that a statute relating to parole eligibility and credit for good behavior is to be viewed from the standpoint of the inmate and the parole board.  The Court, therefore, rationalized that when a person is institutionalized, he is committed and becomes an inmate only once, regardless of the number of sentences imposed. Consecutive sentences arising from convictions on several counts are to be added together and considered as one “conviction” for purposes of parole eligibility.

The same conclusion was reached in 1939-40 AGR 674 wherein my predecessor held that “the mere fact that he (X) was convicted of two felonies at the same time is immaterial.  There was only one conviction” for purposes of determining the parole eligibility date.

Therefore, for purposes of computing the parole eligibility of “X,” the three consecutive sentences should be added together and considered as a single conviction.

IN RE QUESTION NO. 2:

The answer to your second question is no.  The manner in which a defendant is charged (i.e., separate information or multicount information) is irrelevant to the administrative act of computing the parole eligibility) date required of the Board of Pardons and Paroles pursuant to SDCL 23-60.  Unlike the factual situations presented in Memorandum Opinion No. 76-19 wherein a defendant was convicted and concurrently sentenced on separate informations in different jurisdiction, “X” was apparently sentenced to consecutive terms on all three counts by the same court for offenses resulting from one transaction. Therefore, the facts in the two opinions are clearly distinguishable and, based on applicable law, result in different conclusions.

As I have indicated, your specific questions have not been addressed by the Legislature, and the ultimate policy decisions must be made therein.

Respectfully submitted,

William J. Janklow
Attorney General

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