CONSIDERED ON BRIEFS ON AUGUST 28, 2017
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M.
J. JACKLEY Attorney General GRANT FLYNN Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
TIMOTHY J. RENSCH of Rensch Law Office Rapid City, South
Dakota Attorneys for defendant and appellant.
This appeal raises the question whether sentencing courts
have the power to suspend execution of sentence on the
condition of good behavior for periods longer than the
authorized maximum term of imprisonment. We conclude that
sentencing courts have such power because it has been
delegated to them by the Constitution and the Legislature has
not restricted it.
and Procedural History
Clint Bolton was charged with alternative counts of simple
assault, a class 1 misdemeanor. Pursuant to a plea agreement,
the State filed an amended complaint charging disorderly
conduct, a class 2 misdemeanor. Class 2 misdemeanors carry a
maximum sentence of thirty days in jail or a $500 fine or
both. SDCL 22-6-2. The State also agreed to recommend a
thirty-day jail sentence with all thirty days suspended.
Bolton agreed to the plea agreement, and counsel entered a no
contest plea to disorderly conduct on Bolton's
The magistrate court accepted the plea and imposed a
thirty-day jail sentence. The court then suspended execution
of that sentence on the condition that Bolton obey all laws
and remain on good behavior for six months. Bolton's
attorney immediately objected to the sentence. He argued the
court could not condition a suspended execution of sentence
for a period longer than thirty days, the statutory maximum
term of imprisonment for class 2 misdemeanors. The court
invited counsel to brief the issue.
In lieu of briefing, Bolton filed a motion to correct an
illegal sentence. The magistrate court denied the motion.
Relying on State v. Macy, the court concluded it was
permitted to conditionally suspend execution of sentence for
periods that exceed the maximum term of imprisonment for the
underlying offense. See State v. Macy, 403 N.W.2d
743, 745 (S.D. 1987) (stating sentencing courts have complete
discretion in setting the length of probation when the court
suspends imposition of sentence). Following the
circuit court's affirmance, we granted Bolton's
petition for intermediate appeal.
As a preliminary matter, the State argues Bolton's appeal
is moot because his sentence was complete on January 17,
2017. However, this Court may "determine a moot question
of public importance if we feel that the value of its
determination as a precedent is sufficient to overcome the
rule against considering moot questions." Larson v.
Krebs, 2017 S.D. 39, ¶ 16, 898 N.W.2d 10, 16-17.
The public interest exception requires "general public
importance, probable future recurrence, and probable future
The issue raised in Bolton's appeal meets these
requirements. The magistrate court indicated that it
conditionally suspended sentences in class 2 misdemeanors for
six months "just about every day." The issue will
also continue to evade review because the relatively short
sentences imposed in this kind of case expire before an
appeal can be completed. It is finally an issue of general
public importance. If such sentences are illegal, they are
being improperly imposed on not only the thousands of people
sentenced for very low-level offenses, but potentially on
those felons that require long and extensive court
supervision on suspended sentences. We exercise our
discretion to address the issue.
The specific issue is whether a sentencing court may
conditionally suspend execution of sentence for a period that
exceeds the statutory maximum term of imprisonment for the
offense. Bolton argues such sentences are illegal. He
contends there is no case or statute that authorizes such
suspensions. Although he relies on a number of our precedents
that have touched on the legality of various suspended
sentences, none of them address the ultimate question here: