February 8, 1979
Sister Vincent Fuller, Executive Secretary
The South Dakota Board of Nursing
132 South Dakota Avenue, Suite 200
Sioux Falls, South Dakota 57102
OFFICIAL OPINION NO. 78-7
Nursing licenses to individuals convicted of felony
Dear Executive Secretary Fuller:
You have requested an opinion from this office in regard to the following factual situation:
FACTS:
An individual may have been convicted of a felony and given a suspended sentence or actually served a prison term. Following a probationary period or parole the person is admitted to a nursing school and satisfactorily completes the program.
Based on the above facts, you ask the following question:
QUESTION:
Is there any provision in the law preventing the board from admitting that individual to the licensing exam and subsequently issue a license to the board of nursing?
SDCL 36-9-49 reads as follows:
The board shall have the power, in compliance with chapter 1-26, to deny, revoke or suspend any license or application for license to practice nursing in this state, and to take appropriate disciplinary or corrective action in additon to or in lieu thereof upon proof that the licensee or applicant has:
(2) The licensee has been convicted during the past five years of a felony. The conviction of a felony shall be the conviction of any offense, which if committed within the state of South Dakota would constitute a felony under the laws thereof;
The Board has the power to deny a license to an applicant convicted of a felony upon submission of proof pursuant to SDCL 1-26. Also, upon complaint of a person the Board may deny or revoke a license of an individual who had been convicted of a felony.
The Board should be aware of first-time felony offender statutes found at SDCL 23-57-4 and 23-57-4.1, and also SDCL 39-17-113 and 39-17-114. These sections provide that discharge and dismissal of an action under these sections shall be without court adjudication of guilt and shall not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law upon conviction for a crime. Also, the Board should be aware of executive clemency provisions that may be available. Should the Governor grant a pardon, it is as if the offense was never committed.
It is my opinion the Board would have the power to deny a license pursuant to SDCL 1-26, unless: (1) five years had elapsed pursuant to SDCL 36-9-49(2) or (2) the person had been granted judicial clemency in the aforementioned sections of the South Dakota Codified Laws, or (3) the applicant had received executive clemency.
It is my opinion that the Board of Nursing is not prevented from issuing a license to an applicant convicted of a felony five years previously, assuming the applicant meets other requirements.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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