CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017
APPEAL
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA, THE HONORABLE ROBERT
GUSINSKY Judge.
MARTY
J. JACKLEY Attorney General PATRICIA ARCHER Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
and appellee.
TODD
A. LOVE Rapid City, South Dakota Attorney for defendant and
appellant.
OPINION
WILBUR, RETIRED JUSTICE.
[¶1.]
The sentencing court imposed a five-year penitentiary term
upon defendant while defendant was serving a probationary
sentence imposed in a different criminal file. Defendant
appeals, asserting that the court imposed an illegal sentence
when it placed him under the dual supervision of the judicial
and executive branches. Although the sentencing court erred
when it placed defendant under simultaneous supervision of
two branches of government, defendant is currently only under
the supervision of the executive branch. We, therefore,
affirm defendant's sentence.
Background
[¶2.]
On April 15, 2014, Charles Humpal pleaded guilty to one
charge of possession of a controlled substance and one charge
of unauthorized ingestion of a controlled substance (Criminal
File 13-2946). The sentencing court sentenced Humpal to three
years on each charge and suspended the execution of sentence
on both charges. The court placed Humpal on probation for
three years. On April 21, 2016, the State alleged Humpal
violated probation, and on September 6, 2016, Humpal admitted
to the violation. On October 4, 2016, the sentencing court
amended its previous judgment of sentence and continued
probation for three years to begin on the date of the amended
judgment.
[¶3.]
On October 19, 2016, the State charged Humpal with grand
theft. The State and Humpal entered into a plea agreement.
Humpal agreed to plead guilty to grand theft. The State in
return agreed to, among other things, not file a probation
violation in Criminal File 13-2946. At a hearing on January
3, 2017, Humpal pleaded guilty, and the State recommended a
five-year penitentiary sentence. Humpal objected, claiming
that the court did not have authority to impose a
penitentiary sentence for the grand theft conviction because
Humpal was currently serving a probationary term in Criminal
File 13-2946. Humpal argued that imposing a penitentiary
sentence would improperly place him under the simultaneous
supervision of the executive and judicial branches. The court
requested briefing.
[¶4.]
At a hearing on March 7, 2017, the sentencing court sentenced
Humpal to five years in prison with three years suspended. It
relied on SDCL 23A-27-18.4 and ordered the sentence to
"run concurrent with the penitentiary sentence ordered
in" Criminal File 13-2946. In the court's view,
because the penitentiary sentence ran concurrent with the
sentence in Criminal File 13-2946, Humpal was only under the
supervision of the executive branch.
[¶5.]
Humpal appeals, asserting that the sentencing court did not
have authority to impose a penitentiary sentence against him
while he was serving a probationary term. The State argues
that the issue is moot because the sentencing court
discharged Humpal from probation on March 9, 2017, leaving
him only under the supervision of the executive branch.
Standard
of Review
[¶6.]
"The power to sentence comes from statutory and
constitutional provisions." State v. Oban, 372
N.W.2d 125, 129 (S.D. 1985), superseded in part by
statute as recognized in Krukow v. S.D. Bd. of Pardons &
Paroles, 2006 S.D. 46, ¶ 15, 716 N.W.2d 121, 125.
"Statutory interpretation is a question of law, reviewed
de novo." State v. Kramer, 2008 S.D. 73, ¶
11, 754 N.W.2d 655, 658 (quoting State v. Burdick,
2006 S.D. 23, ¶ 6, 712 N.W.2d 5, 7). Likewise, whether a
defendant's sentence exceeds ...