October 28, 1982

Mr. Steven Bucher 
Deputy State's Attorney 
Buffalo County 
c/o Miller, Miller & Sebastian 
Kimball, South Dakota 57355

Official Opinion No. 82-56

Effect of vacation of sentence under 18 U.S.C. § 5021(b) on operation of SDCL 22-14-15

Dear Mr. Bucher:

You have requested an official opinion based on the following facts:

FACTS: 

An individual was charged and convicted of assault with a dangerous weapon under the federal law and was sentenced to a term of probation under the Federal Youth Corrections Act, 18 U.S.C. § 5010.  Before the expiration of the individual's term of probation, the federal district court unconditionally discharged him from probation and set aside his conviction pursuant to U.S.C. §  5021(b).  The setting aside of a conviction under the Federal Youth Corrections Act lifts all the disabilities of a felony conviction under federal law including the bar to firearms possession.

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

QUESTION: 

Can an individual who has been convicted of a crime of violence under federal law, but has had the conviction set aside and vacated pursuant to the Federal Youth Corrections Act legally possess a firearm under SDCL 22-14-15?

SDCL 22-14-15 provides as follows: 

Any person who has been convicted in this state or elsewhere of a crime of  violence, who has in his possession or under his control, a firearm, is guilty of a Class 6 felony.  This section does not apply to any person who was last discharged from prison, jail, probation or parole, for a crime of violence more than fifteen years prior to the commission of the principal offense.

SDCL 22-1-2(8) defines a crime of violence as: 

'Crime of violence,' any of the following crimes or an attempt to commit, or a conspiracy to commit, any of the same:  murder, manslaughter, rape, aggravated assault, riot, robbery, burglary, arson, kidnapping and any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device;

SDCL 22-18-1.1(2) provides that any person who 'attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon,' is guilty of aggravated assault.  Therefore, an individual's federal conviction of assault with a dangerous weapon is the substantial equivalent of aggravated assault under South Dakota law, and is a crime of violence within the meaning of SDCL 22-1-2(8) and 22-14-15.

While the setting aside of a federal criminal conviction restores an individual to his preconviction rights and prohibits the use of prior felony convictions in federal prosecutions predicated upon such convictions, see United States v. Dow, 496 F. Supp. 650 (D.R.I. 1980), the state courts are  not so limited.  The Supremacy Clause of the United States Constitution invalidates state laws in two situations.  First, where Congress has passed legislation clearly preempting the field subject to regulation, and secondly, where state laws conflict with federal legislation. First Federal Savings and Loan Association of Harrison, Arkansas v. Myrick, 533 F.Supp. 1044 (W.D. Ark. 1982).  The present situation satisfies neither standard.  Congress has demonstrated no intent to oust the states from regulating conduct, including criminal conduct, within their respective borders.  Nor has Congress shown any interest in mandating that the removal of disabilities under federal law-- disabilities resulting from criminal conduct--requires similar remedial state action.  There is no conflict between federal law and SDCL 22-14-15.

In People v. Loomis, 42 Cal.Rptr. 124, 231 Ca.2d 594 (Cal.D.Ct. of Ap. 1965), the Court was confronted by a defendant who had been discharged from probation and had his federal conviction set aside, but, prior to the federal discharge, had been charged with illegally possessing a gun under California law.  The California statute, as SDCL 22-14-15, made possession of a pistol by one convicted of a felony a criminal offense.  The Court did not feel that it was compelled to ignore the defendant's prior criminal conviction and affirmed the defendant's state conviction for illegally possessing a gun.

It is my opinion that the federal conviction for a crime of violence, though subsequently vacated by a federal court, does not relieve an individual so  convicted from the strictures of SDCL 22-14-15.  Therefore, an individual who has had his conviction set aside and vacated pursuant to the Federal Youth Corrections Act may not legally possess a firearm under SDCL 22‑14-15.

Respectfully submitted,

Mark V. Meierhenry
Attorney General