July 22, 1986

Mr. Judd C. Thompson 
Executive Director 
South Dakota Board of Pardons & Paroles 
Post Office Box 911 
Sioux Falls, South Dakota 57117-0911

OFFICIAL OPINION NO. 86-28

Revocation of parole and suspended sentence

Dear Director Thompson:

On behalf of the Board of Pardons and Paroles you have requested my opinion concerning the authority of the Board to act on revocation of paroles and  suspended sentences pursuant to SDCL 23A-27-19 as amended by the 1986 South Dakota Legislature.  You have asked the following questions:

QUESTION: 

1.  When the Board of Pardons and Paroles revokes the suspended portion of an inmate's sentence, can it withhold good time on the suspended portion as authorized by SDCL 24-15-24 in the case of parole violations? 

2.  In the case of a 'split' sentence, i.e. five years with two years suspended on conditions, does the Board of Pardons and Paroles have the authority to revoke the suspended portion of the sentence for a violation while on parole status?  (The suspended sentence supervision does not begin until the inmate has been discharged from parole.) 

3.  If a client's parole and/or suspended sentence is revoked by the Board of Pardons and Paroles, should the time spent on supervision be credited toward his total sentence?

IN RE QUESTION NO. 1:

SDCL 24-15-24 provides: 

If the board of pardons and paroles is satisfied that any provision of §   24-15-20 has been violated, it may revoke the parole and reinstate the terms of the original sentence and conviction.  In addition, the board is authorized to order the reduction of time in full or in part for good conduct granted under §  24-5-1.  If the board does not find that the provisions of §  24-15-20 have been violated, it may restore the parolee to the original terms and conditions of his parole.

In State v. Oban, 372 N.W.2d 125 (S.D. 1985), a lengthy discussion regarding the ways in which an offender may be released from or returned to the penitentiary is presented.  In that case the offender sought reversal of an order of revocation entered by a circuit court of this State.  Although a reversal of the order of revocation was granted, the Supreme Court remanded the case to the Board of Pardons and Paroles so that it could conduct a revocation proceeding instead of the trial court.  The offender argued that since he had entered into the portion of his sentence that had been suspended by the original sentencing court, that he was no longer required to follow the dictates of the conditions placed upon him when the Board of Pardons and Paroles granted a parole prior to commencement of the suspended portion of his sentence.  The Court rejected this distinction and held that the offender remained on parole under the supervision of the Board even after he had entered into the portion of the sentence originally suspended by the sentencing court. Based upon the Supreme Court's action in that case, it is my opinion that the  Board of Pardons and Paroles is free to treat offenders before it in a revocation proceeding in the same manner, regardless of whether the offender was on supervised liberty as the result of a parole granted by the Board or the commencement of a suspended sentence pursuant to the sentencing court's original order.  Accordingly, the authority granted to the Board in SDCL 24-15-24 can be used in either situation.

IN RE QUESTION NO. 2:

In Application of Adams on Behalf of Schmidt, 360 N.W.2d 513 (S.D. 1985), the Supreme Court examined a situation where a circuit court, based upon a violation of parole conditions, revoked the suspended portion of a sentence before service of the suspended portion had commenced.  The Court clearly held such action was within the power of the Court.  See also, State v. Adams, 360 N.W.2d 519 (S.D. 1985).  While not addressing the power of the Board, there appears no reason not to proceed as though the two authorities--Court and Board--are co-extensive when considering revocation matters.  State v. Oban, 372 N.W.2d 125 (S.D. 1985). But see, Application of Adams, supra, 516 n.3. Therefore, my answer to Question 2 is yes.

IN RE QUESTION NO. 3:

In my opinion, the Board is free to award credit for time spent on supervision or not as the situation requires on a case-by-case basis.  It is apparently the settled rule in this country that violation of parole conditions invokes the imposition of the original sentence with no reduction for time spent on parole. See 21 Am.Jur.2d Crim. Law §  578; 59 Am.Jur.2d Pardon & Parole §  100 et seq.; and Campbell, 'Law of Sentencing' ch. 16 'Executive Sentencing Review' p. 397; Lawyers Cooperative Publishing Co., N.Y., N.Y. 1978.  Since credit for time served on supervision need not be granted, it would seem to follow that in constructing a plan of rehabilitation for a particular prisoner the Board may exercise its discretion in this area.

Respectfully submitted,

Mark V. Meierhenry
Attorney General