May 7, 1987
Sheriff Lester Hawkey
Sheriff of Minnehaha County
Public Safety Building
Sioux Falls, South Dakota 57102
OFFICIAL OPINION NO. 87-14
Concealed weapons permit in the presence of suspended imposition or sentence
Dear Sheriff Hawkey:
You have requested an official opinion based upon the following factual situation:
FACTS:
Recently our office has had requests for concealed weapons permits from people that have been convicted of a felony and received a suspended imposition of sentence.
Based upon those facts, in light of SDCL 23-7-7.1(2), you have asked the following questions:
QUESTION NO. 1:
If a person is currently under a felony suspended imposition of sentence and is on probation, must the Sheriff issue that person a concealed weapons permit?
QUESTION NO. 2:
If a person has completed the probation period for a felony suspended imposition of sentence, and the record is sealed, must the Sheriff issue that person a concealed weapons permit?
The statute in question, SDCL 23-7-7.1 provides as follows:
A temporary permit to carry a concealed pistol shall be issued within five days of application to a person if all the statements in the application are true and if the applicant:
(1) Is eighteen years of age or older;
(2) Has never pled guilty to, nolo contendere to, or been convicted of a felony or a crime of violence;
(3) Is not habitually in an intoxicated or drugged condition;
(4) Has no history of repeated acts of *violence; and
(5) Has not been found in the previous ten years to be "mentally ill" as defined in ยง 27A-1-1 or is not currently adjudged mentally incompetent.
A person denied a permit may appeal to the circuit court pursuant to chapter 1-26.
In addition, SDCL 23-7-8 provides:
This application for a permit to carry a concealed pistol shall be in triplicate on a form prescribed by the secretary of state. The application shall require the applicant's complete name, address, occupation, place and date of birth, physical description, a statement that the applicant has never pled guilty to, nolo contendere to, or been convicted of a crime of violence, a statement that the information on the application is true and correct and the applicant's signature. The original shall be delivered to the applicant as the temporary permit, the duplicate shall within seven days be sent by first class mail to the secretary of state who shall issue the official permit, and the triplicate shall be preserved for four years by the authority issuing the permit.
SDCL 23A-27-13 provides:
Upon receiving a verdict or plea of guilty for a misdemeanor or felony not punishable by death or life imprisonment by a person never before convicted of a crime which at the time of conviction thereof would constitute a felony in this state, a court having jurisdiction of the defendant, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby may, without entering a judgment of guilt, and with the consent of the defendant, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court may deem best. A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period.
IN RE QUESTION NO. 1:
Given that SDCL 23-7-7.1(2) provides that permits to receive a temporary concealed pistol permit need not be issued to an applicant if he has pled guilty to or has been convicted of a felony, and given that the same language appears in SDCL 23-7-8, although limited to a crime of violence, and given that there must either be a verdict or plea of guilty in order for an order suspending imposition of sentence to be issued pursuant to SDCL 23A-27-l3, it does not appear that either a temporary concealed pistol permit or a concealed pistol permit need be given by a sheriff to a person who is currently on probation under a suspended imposition of sentence. Accordingly, since either a verdict or plea of guilty has been entered, and since the record is not sealed while the individual is on probation under a suspended imposition of sentence order, it is entirely consistent that no permit be issued in those circumstances.
I would note that SDCL 23-7-7.1 provides that a person denied a permit - and I would take that to mean a temporary or regular permit - may appeal to the circuit court pursuant to SDCL ch. 1-26, I would advise you to take certain steps to enhance the probability of any denial of a permit being upheld in the circuit court appeal. The most useful steps you can take when you are deciding to deny a permit is to notify the individual of your intention to deny the permit and then conduct a hearing with yourself as the hearing officer before making your final determination. In this hearing you should provide the applicant with written notice of the time and place of the hearing, allow him to be represented by counsel- at his own cost - and to present evidence. A record should be made by a court reporter or a tape recording and an indication in the record should be made of the evidence upon which you rely to deny the permit. Although it may seem somewhat cumbersome, by taking these simple steps, it will greatly restrict the scope of review in the circuit court and enhance the likelihood that your denial will be upheld. The answer to your first question is no.
IN RE QUESTION NO. 2:
The situation presented by Question No. 2 is substantially different. Once a person has completed any probation imposed as a condition of suspended imposition of sentence, the person is almost completely restored to all civil rights he had prior to the arrest leading to the suspended imposition order. SDCL 23A-27-17 provides as follows:
Upon the discharge and dismissal of a person pursuant to 23A-27-14, a court shall order that all official records, other than the nonpublic records to be retained by the division of criminal investigation, be sealed along with all records relating to the person's arrest, indictment or information, trial, finding of guilt, and dismissal and discharge. The effect of such order is to restore such person, in the contemplation of the law, to the status he occupied before his arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of his failure to recite or acknowledge such arrest, indictment or information, or trial in response to any inquiry made of him for any purpose. [Emphasis supplied.]
As you can see from the plain words of that statute, the applicant for a pistol permit is entitled to state that he has never been arrested or convicted of a felony. In addition, all of the records are sealed and as a result there is no way to prove the conviction even in the face of your personal knowledge to the contrary.
There are some extremely limited exceptions to the effect of the statute set out above. SDCL 23A-27-14.1 allows an inquiry to be made for a person licensed as or seeking licensing as a teacher if the suspended imposition of sentence relates to certain sexual misconduct statutes. SDCL 23A-27-15 allows such convictions to be considered in determining whether a defendant is an habitual offender in a subsequent offense. Beyond those limited exceptions, the person who has successfully completed his period of probation and has received an order of discharge and dismissal is treated in the eyes of the law as though he had never committed the offense.
Accordingly, the answer to your second question is yes.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL
