April 13, 1977

Mr. Russ Rogers 
Division of Identification and Records 
South Dakota State Penitentiary 
Sioux Falls, South Dakota 57104

Official Opinion No. 77-29

Determining eligibility for parole from State Penitentiary

Dear Mr. Rogers:

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

FACTS: 

In 1976, “X” was convicted and sentenced on a robbery charge from Pennington County.  The Order of the Circuit Judge contained language to the effect that the Court was aware of a previous felony conviction of “X” in Nebraska in 1966.  However, the Court stated that due to the length of time between convictions this conviction should be considered a first-time conviction for purposes of computing eligibility for parole.

QUESTION: 

Should the Board of Pardons and Paroles consider “X” as a first or second offender in computing the parole eligibility date?

It is my opinion that the Legislature in SDCL 23-60 has established the criteria for determining parole eligibility.  The Court has no discretion or authority in this matter.  Therefore, assuming the crime committed in Nebraska would have also constituted a felony in South Dakota, “X” should be treated as a second felony offender (1949-50 AGR 429) and the provisions of SDCL 23-60- 8 followed.

Respectfully submitted,

William J. Janklow
Attorney General

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