November 8, 1993

Alan Glover
City Attorney
P.O. Box 686
Brookings, SD 57006

OFFICIAL OPINION NO. 93-14

The effect of a suspended imposition of sentence on city commissioner's ability to hold office

Dear Mr. Glover:

You have asked for an official opinion of this Office regarding the following facts:

FACTS:

Recently a city commissioner was charged with the offense of embezzlement. The commissioner entered a plea of no contest and the court found her guilty. Subsequently, the court suspended an imposition of the commissioner's sentence, on the condition that she pay a fine, perform community service and serve thirty days in the county jail with work release.

Based on these facts, you have asked the following question:

QUESTION:

Is the commissioner disqualified from holding office?

An initial legal explanation is in order. You note that the court "found" the commissioner to be "guilty," but that the court had "suspended an imposition of the commissioner's sentence." A "suspended imposition of sentence" is a special criminal law remedy and must be distinguished from--but is often confused with--"suspended execution of sentence."

In this situation, the circuit court has followed the provisions of SDCL 23A-27-13, the special criminal remedy relating to suspended imposition of sentence mentioned above. Pursuant to the terms of the statute, the trial court determined that "the ends of justice and the best interest of the public" would be served "without entering a judgment of guilt" and by "suspend[ing] the imposition of sentence and plac[ing] the defendant on probation." Id. This action is taken for "such period and upon such terms and conditions as the court may deem best." Id.

If the probationer meets such terms and conditions for the specified period of time, a "formal entry of . . . discharge shall be entered by the clerk of courts," and the criminal action "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law." SDCL 23A-27-14. Once that has taken place, the individual's criminal record is sealed and, for most purposes, neither the crime nor the conviction officially took place. SDCL 23A-27-17. (As noted above, such action by a trial court is different from--but often confused with--a suspended execution of sentence, which takes place after conviction and entry of a judgment of guilt by the court. SDCL 23A-27-18.)

The "before judgment of guilt" aspect of a suspended imposition of sentence has been affirmed by the South Dakota Supreme Court. State v. Oban, 372 N.W.2d 125 (S.D. 1985). Although, as you noted, the trial judge "found" the commissioner "guilty," the judge did not enter a formal judgment of guilt. Obviously, that is a crucial factor to be considered in answering your question.

In order to hold the office in question, a person must be eligible to vote. SDCL 9-14-2 provides, in pertinent part:

Except as otherwise provided, no person is eligible to any municipal office who is not a qualified voter of the municipality.

SDCL 9-9-2 more specifically provides that under a commission form of city government:

No person shall be eligible to nomination or election as a member of the board unless he shall be a citizen of the United States and shall be a resident and voter of the municipality.

In order to qualify to vote, persons must meet a requirement of Art. VII, <185> 2 of the South Dakota Constitution, which reads:

Every United States citizen eighteen years of age or older who has met all residency and registration requirements shall be entitled to vote. . . unless disqualified by law for . . . the conviction of felony.

Consequently, in this instance, our analysis must consider whether the suspended imposition of sentence constitutes a conviction of a felony for voter qualification purposes.

In interpreting the predecessor of SDCL 23A-27-14 (SDCL 23-57-4), the South Dakota Supreme Court held that, absent an entry of judgment of guilt, there was no conviction and further stated:

The sentence in the statute providing that the discharge and dismissal `shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction' may also be troublesome to some. It does not state either explicitly or implicitly, however, that the discharge and dismissal remove any disqualification or disability. In this court's opinion, that sentence is designed to make it abundantly clear that a person dismissed and discharged from probation under this statute shall not suffer disabilities or disqualifications normally attached to a conviction. It does not appear to mean that disabilities and disqualifications attached at the time of probation and are removed only upon discharge and dismissal. (Emphasis added.)

State v. Johnson, 254 N.W.2d 114, 120-121 (S.D. 1977)(quoting Williams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F. Supp. 1194, 1200-1201 (S.D. 1975)); cf. Matter of Weisensee, 296 N.W.2d 717 (S.D. 1980) (where court suspended imposition but entered judgment, Johnson inapposite). I conclude that, absent an entry of judgment, loss of the right to vote is not one of the disqualifications that the recipient of a suspended imposition of sentence suffers.

My conclusion is reinforced by a rule of statutory construction which provides that "the expression of one thing is the exclusion of another." Aman v. Edmunds Central School District, 494 N.W.2d 198, 200 (S.D. 1992). SDCL 23A-27-14.1 is also part of the statutory plan. The statute provides that a suspended imposition for the commission of certain enumerated offenses may be considered a conviction for the purposes of refusing or revoking a certified teacher's license. dditionally, SDCL 23A-27-15 states that a suspended imposition may be considered a prior conviction solely for the purposes of determining whether a defendant is a habitual offender. No comparable provision exists, however, regarding the crime here at issue (embezzlement) or the position in question (city commissioner). In light of the above-mentioned mode of construction, the listing of the two exceptions to the general rule regarding suspended sentences supports an inference that the exceptions are exclusive; if the Legislature had wished to designate suspended impositions as convictions for the purposes of voter disqualification, it would have so stated in statute. Since a suspended imposition of sentence does not amount to a conviction for such purpose, it does not, of its own accord, disqualify a municipal official from holding office.

I note, however, that the requirement of a conviction as a prerequisite to this type of disqualification does not leave the integrity of the position of city commissioner unprotected. SDCL 3-17-6 provides:

Any officer of any local unit of government may be charged, tried, and removed from office for misconduct, malfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality.

The remainder of ch. 3-17 sets forth the procedures for initiating such removal. Absent the proper party filing a complaint and meeting the burden of proof in such proceedings, the public officer may remain in office.

My answer to your question is "no." The court made a finding of guilt similar to a jury finding of guilt, but did not enter a judgment against the commissioner. The judgment is a necessary prerequisite before the person stands convicted. Consequently, she did not receive a "conviction" that would remove her voting rights. She remains a qualified voter and, assuming she meets the other requirements for office, she is not disqualified from holding public office.

MB:SB:mjj