July 28, 1982

Mr. Herman S. Solem, Warden 
South Dakota State Penitentiary 
Post Office Box 911 
Sioux Falls, South Dakota 57117-0911

Opinion No. 82-38

Eligibility for parole under SDCL 24-15-6

Dear Mr. Solem:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Under former law, S.D. 13.5301 (1939) and SDCL 23-60-10 (1967) the statute read 'in determining eligibility for parole . . . a conviction on several counts of an indictment or information for which the sentences are made to run concurrently, shall be considered as one conviction.' 

Attorney General's Opinions, AGR 1937-38, p. 179 and AGR 1951-52, p. 393 are in accord with this statutory provision. 

In 1978, the South Dakota Legislature changed the parole provisions in SDCL 24-15-6.  The new provision states, 'In determination of an inmate's eligibility for parole, two or more convictions arising from the same transaction, for which the sentences are made to run concurrently, shall be considered as one conviction.  Two or more sentences arising from different transactions for which the sentences are made to run concurrently shall be considered as separate convictions.'

QUESTION: 

Does the word 'transaction' as used in SDCL 24-15-6 mean the same thing as an 'indictment or information' under prior law?

It is my opinion upon examining the relevant statutes and cited Attorney General's Opinions, that the word 'transaction' under SDCL 24-15-6 does not mean the same thing as 'indictment or information' under prior laws.  It is my opinion that the transaction as used in SDCL 24-15-6 means those criminal actions of a person which are closely connected in both time and substance. Thus under the new statute, in determining whether or not concurrent sentences are to be considered as one conviction, one must not look to an indictment or information but rather the actions or circumstances out of which the conviction on the charged offense occurred.

The following examples are illustrations based upon my above opinion.

EXAMPLE 1

Individual A was charged with first-degree burglary and grand theft rising out of the breaking into and entering of an occupied structure and taking jewelry and money over $200 in value.  In this case if the person was convicted on both charges and the sentences were made to run concurrently, since they rise out of the same transaction, they would be considered one conviction.

EXAMPLE 2

Individual B was charged with third-degree burglary rising out of an incident on January 1st, and with third-degree burglary rising out of an incident which occurred on January 3rd.  Though these two charges may have been included in the same indictment or information, they do not arise out of the same transaction. Therefore if the Defendant was convicted of both charges, they would be considered as separate convictions under SDCL 24-15-6.

Given the statutory changes in SDCL 24-15-6, Attorney General's Opinions AGR 1951-52, p. 393, and AGR 1937-38, p. 179 are hereby overruled and superseded to the extent they are inconsistent with this opinion.

Respectfully submitted,

Mark V. Meierhenry
Attorney General