State of South Dakota
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EIGHTY-EIGHTH SESSION
LEGISLATIVE ASSEMBLY, 2013
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491U0384
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CONFERENCE COMMITTEE
ENGROSSED NO. SB 39 - 03/06/2013
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This bill has been extensively amended (hoghoused) and may no longer be consistent
with the original intention of the sponsor.
Introduced by: The Committee on Judiciary at the request of the Office of the Attorney
General
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FOR AN ACT ENTITLED, An Act to establish a penalty for a juvenile convicted as an adult
of a Class A or B felony and allow a sentence of up to life imprisonment after a sentencing
hearing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 22-6-1 be amended to read as follows:
22-6-1. Except as otherwise provided by law, felonies are divided into the following nine
classes which are distinguished from each other by the following maximum penalties which are
authorized upon conviction:
(1) Class A felony: death or life imprisonment in the state penitentiary. A lesser sentence
than death or life imprisonment may not be given for a Class A felony. In addition,
a fine of fifty thousand dollars may be imposed;
(2) Class B felony: life imprisonment in the state penitentiary. A lesser sentence may not
be given for a Class B felony. In addition, a fine of fifty thousand dollars may be
imposed;
(3) Class C felony: life imprisonment in the state penitentiary. In addition, a fine of fifty
thousand dollars may be imposed;
(4) Class 1 felony: fifty years imprisonment in the state penitentiary. In addition, a fine
of fifty thousand dollars may be imposed;
(5) Class 2 felony: twenty-five years imprisonment in the state penitentiary. In addition,
a fine of fifty thousand dollars may be imposed;
(6) Class 3 felony: fifteen years imprisonment in the state penitentiary. In addition, a fine
of thirty thousand dollars may be imposed;
(7) Class 4 felony: ten years imprisonment in the state penitentiary. In addition, a fine of
twenty thousand dollars may be imposed;
(8) Class 5 felony: five years imprisonment in the state penitentiary. In addition, a fine
of ten thousand dollars may be imposed; and
(9) Class 6 felony: two years imprisonment in the state penitentiary or a fine of four
thousand dollars, or both.
If the defendant is under the age of eighteen years at the time of the offense and found guilty
of a Class A or B felony, the maximum sentence may be life imprisonment in the state
penitentiary. In addition, a fine of fifty thousand dollars may be imposed.
The court, in imposing sentence on a defendant who has been found guilty of a felony, shall
order in addition to the sentence that is imposed pursuant to the provisions of this section, that
the defendant make restitution to any victim in accordance with the provisions of chapter 23A-28.
Nothing in this section limits increased sentences for habitual criminals under §§ 22-7-7,
22-7-8, and 22-7-8.1.
Section 2. That § 23A-27-1 be amended to read as follows:
23A-27-1. Sentences shall be imposed without unreasonable delay, but not within forty-eight
hours after determination of guilt. A defendant may waive the forty-eight hour delay. Before
imposing a sentence, a court may order a hearing in mitigation or aggravation of punishment.
If the defendant is a juvenile convicted as an adult of a Class A or Class B felony, prior to
imposing a sentence, the court shall conduct a presentence hearing. At such hearing, the court
shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall
address the defendant personally and ask him if he wishes to make a statement in his own behalf
and to present any information in mitigation of punishment. The prosecuting attorney shall have
an equivalent opportunity to speak to the court. The circumstances must be presented by the
testimony of witnesses examined in open court, except that a witness' deposition may be taken
by a magistrate in accordance with chapter 23A-12. In imposing a sentence, the court shall enter
an order of restitution in accordance with chapter 23A-28.
Section 3. That § 24-15A-32 be amended to read as follows:
24-15A-32. Each inmate sentenced to a penitentiary term, except those under a sentence of
life or death, or an indeterminate sentence which is not yet set to a term of years by the board
or determined to be ineligible for parole as authorized in § 24-15A-32.1, shall have an initial
parole date set by the department. This date shall be calculated by applying the percentage
indicated in the following grid to the full term of the inmate's sentence pursuant to § 22-6-1. The
following crimes or an attempt to commit, or a conspiracy to commit, or a solicitation to
commit, any of the following crimes shall be considered a violent crime for purposes of setting
an initial parole date: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in
the first degree or burglary in the second degree if committed before July 1, 2006, arson,
kidnapping, felony sexual contact as defined in §§ 22-22-7 and 22-22-19.1, child abuse, felony
sexual contact as defined in § 22-22-7.2, felony stalking as defined in §§ 22-19A-2 and 22-19A-
3, photographing a child in an obscene act, felony assault as defined in § 22-18-26, felony
simple assault as defined in § 22-18-1, commission of a felony while armed as defined in §§ 22-14-12 and 22-14-13.1, discharging a firearm at an occupied structure or motor vehicle as defined
in § 22-14-20, discharging a firearm from a moving vehicle as defined in § 22-14-21, criminal
pedophilia as defined in § 22-22-30.1, threatening to commit a sexual offense as defined in
§ 22-22-45, abuse or neglect of a disabled adult as defined in § 22-46-2, and aggravated incest
as defined in §§ 22-22A-3 and 22-22A-3.1:
Felony Convictions
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Felony Class
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First
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Second
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Third
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Nonviolent
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Class 6
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.25
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.30
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.40
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Class 5
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.25
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.35
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.40
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Class 4
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.25
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.35
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.40
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Class 3
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.30
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.40
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.50
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Class 2
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.30
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.40
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.50
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Class 1
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.35
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.40
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.50
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Class C
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.35
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.40
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.50
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Violent
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|
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Class 6
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.35
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.45
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.55
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Class 5
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.40
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.50
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.60
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Class 4
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.40
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.50
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.65
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Class 3
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.50
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.60
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.70
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Class 2
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.50
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.65
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.75
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Class 1
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.50
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.65
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.75
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Class C
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.50
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.65
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.75
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Class B
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1.0
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1.0
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1.0
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Class A
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1.0
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1.0
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1.0
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Each inmate shall serve at least sixty days prior to parole release. Inmates with life sentences
are not eligible for parole. An initial parole date through the application of this grid may be
applied to a life sentence only after the sentence is commuted to a term of years. A Class A or
B felony commuted to a number of years shall be applied to the Class C violent column of the
grid. An inmate convicted of a Class A or B felony who was a juvenile at the time of the offense
and receives a sentence of less than life shall be applied to the Class C violent column of the
grid.
Section 4. That § 23A-27-1.1 be amended to read as follows:
23A-27-1.1. Upon If a defendant has been convicted of an A, B, or C felony, upon request
to the court by a victim and before imposing sentence on a defendant, the victim, in the
discretion of the court, may has the right to orally address the court concerning the emotional,
physical, and monetary impact of the defendant's crime upon the victim and the victim's family,
and may comment upon the sentence which may be imposed upon the defendant.
If a defendant has been convicted of any other felony or misdemeanor, upon request to the
court by a victim and before imposing sentence on a defendant, the victim, in the discretion of
the court, may orally address the court concerning the emotional, physical, and monetary impact
of the defendant's crime upon the victim and the victim's family, and may comment upon the
sentence which may be imposed upon the defendant.
The defendant shall be permitted to respond to such statements orally or by presentation of
evidence and shall be granted a reasonable continuance to refute any inaccurate or false charges
or statements.
For the purpose of this section, the term, victim, means the actual victim or the parent,
spouse, next of kin, legal or physical custodian, guardian, foster parent, case worker, victim
advocate, or mental health counselor of any actual victim who is incompetent by reason of age
or physical condition, who is deceased, or whom the court finds otherwise unable to comment.
Section 5. That § 23A-27-1.3 be amended to read as follows:
23A-27-1.3. Upon If a defendant has been convicted of an A, B, or C felony, upon request
to the court by a victim and before imposing sentence on a defendant, a victim, in the discretion
of the court, may has a right to address the court in writing concerning the emotional, physical,
and monetary impact of the defendant's crime upon the victim and the victim's family, and may
comment upon the sentence which may be imposed upon the defendant.
If a defendant has been convicted of any other felony or misdemeanor, upon request to the
court by a victim and before imposing sentence on a defendant, the victim, in the discretion of
the court, may address the court in writing concerning the emotional, physical, and monetary
impact of the defendant's crime upon the victim and the victim's family, and may comment upon
the sentence which may be imposed upon the defendant.
The defendant shall be permitted to respond to such statements and shall be granted a
reasonable continuance to refute any inaccurate or false charges or statements.
For the purpose of this section, the term, victim, means anyone adversely impacted
emotionally, physically, or monetarily by the defendant's crime.