April 9, 1984

Mr. Herman Solem, Warden 
South Dakota State Penitentiary 
Post Office Box 911 
Sioux Falls, South Dakota 57117-0911

OFFICIAL OPINION NO. 84-14

Probationers reduction of sentence

Dear Mr. Solem:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

Under the statutory provisions of SDCL 23A-27-18.1 as amended by the 1983 State Legislature, conditions of probation imposed pursuant to a suspended imposition of sentence or a suspended execution of sentence may include the requirement that the defendant be imprisoned in the state penitentiary for a specific period not exceeding sixty days.

Based upon the foregoing facts, you have asked the following question:

QUESTION 

Are probationers committed to the penitentiary under the provisions of SDCL 23A-27-18.1 entitled to a reduction of the sentence by virtue of SDCL 24-5-1?

SDCL 23A-27-18.1 reads as follows: 

The conditions of probation imposed pursuant to § 23A-27-12 or § 23A-27-13 or the conditions of suspension of execution imposed pursuant to § 23A-27-18, may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding one hundred eighty days or in the state penitentiary for a specific period not exceeding sixty days or the  sentence which was imposed or which may be imposed by law, whichever is less.  The imprisonment may be further restricted to certain days specified by the court as part of such conditions.  Any such imprisonment, either in the county jail or state penitentiary, shall be credited toward any incarceration imposed upon any subsequent revocation of a suspended imposition or execution of sentence.

SDCL 24-5-1 reads in pertinent part as follows: 

Every convict sentenced for any term less than life, and subject to the provisions of § §  24-2-17 and 24-2-18, shall be entitled to a deduction from his sentence for each year and pro rata for any part of a year . . .

Under SDCL 23A-27-13 the imposition of a defendant's sentence is suspended.  Under SDCL 23A-27-18 the execution of a defendant's sentence is suspended.  In neither case is a sentence imposed.  The imprisonment authorized by SDCL 23A-27-18.1 is a condition of probation.  Under both the suspended imposition of sentence and suspended execution of sentence, the defendant is not 'sentenced' as contemplated by SDCL 24-5-1.

Therefore it is my opinion that probationers committed to the penitentiary under the provisions of SDCL 23A-27-18.1 are not entitled to a reduction of the specific period of imprisonment by virtue of SDCL 24-5-1.

Respectfully submitted,

Mark V. Meierhenry
Attorney General