Under SDCL 23A-27-18.1, a court can require a probationer to serve up to 60 days in the state penitentiary as a condition of probation. Does a probationer serving that 60 days earn the good time credits that SDCL 24-5-1 gives to convicts serving a regular prison sentence?
Plain-English summary
In 1983 the South Dakota Legislature amended SDCL 23A-27-18.1 to let sentencing courts require a probationer to serve up to 180 days in a county jail or up to 60 days in the state penitentiary as a condition of probation. The probationer's underlying sentence was suspended (either as a suspended imposition under SDCL 23A-27-13 or a suspended execution under SDCL 23A-27-18). The probation jail time was incarceration, but it was not the same legal animal as serving a sentence.
Warden Solem at the state penitentiary asked AG Meierhenry the practical question that arose immediately: would these probationers earn good time credits the way regular sentenced inmates do under SDCL 24-5-1? Good time would reduce the 60-day stay by several days. Without it, the probationer served the full 60.
Meierhenry's answer was textual. SDCL 24-5-1 begins, "Every convict sentenced for any term less than life ... shall be entitled to a deduction." The trigger is "sentenced." Probationers under SDCL 23A-27-18.1 are not sentenced in the sense the good time statute contemplates. Under suspended imposition (23A-27-13) the court has not imposed a sentence at all; the probationer is serving jail time pursuant to a probation condition. Under suspended execution (23A-27-18) a sentence exists but its execution has been suspended; again, the jail time is a probation condition, not the sentence being executed.
So no, the probationer gets no good time. The 60 days in the penitentiary (or the 180 days in jail) is served day for day.
Meierhenry also noted that any imprisonment served as a probation condition under SDCL 23A-27-18.1 is credited toward the sentence ultimately imposed if probation is later revoked. So if the probationer subsequently violates probation and the underlying sentence is executed, the days already served on the probation condition reduce the time remaining. That credit-against-future-sentence rule comes from the text of SDCL 23A-27-18.1 itself, not from SDCL 24-5-1.
Currency note
This opinion was issued in 1984 during AG Mark Meierhenry's tenure. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL 23A-27-18.1, 24-5-1, and the probation framework in SDCL chapter 23A-27 have been amended multiple times since 1984. The distinction between "sentenced" status and "probation condition" status may apply differently under current law, and modern questions about good time eligibility for probationers serving jail or penitentiary time should be verified against current statute and Department of Corrections policy.
What the opinion meant at the time
For the state penitentiary, the operational consequence was that probationers admitted under SDCL 23A-27-18.1 were treated as a separate accounting category. They did not earn good time; their stays were fixed by the court's order, capped at 60 days.
For county jails housing the larger 180-day version of this probation jail time, the same rule applied by analogy: probation jail time is not "sentenced" time, so good time credits did not reduce it.
For sentencing judges, the opinion confirmed that setting a probation condition of jail or penitentiary time produced a deterministic duration. The judge knew, when imposing 30 days as a probation condition, that the defendant would serve 30 days, not 25 with good time. That predictability mattered for fashioning probation conditions.
For probationers and their counsel, the opinion clarified that probation jail time was effectively harder time than equivalent sentenced time. A defendant choosing between a short imposed sentence with good time and a short probation jail condition had to factor in that the probation version would not shrink.
Common questions
Q: What's the difference between suspended imposition and suspended execution?
A: Under suspended imposition (SDCL 23A-27-13), the court has not imposed any sentence; the defendant goes on probation, and if probation is completed successfully the record can be cleared. Under suspended execution (SDCL 23A-27-18), the court has imposed a sentence (say, three years in prison) but suspended the execution of that sentence, putting the defendant on probation; the sentence is still on the books but is not being served.
Q: Why does the difference matter for good time?
A: SDCL 24-5-1 attaches to people who are "sentenced." Suspended imposition probationers are never sentenced. Suspended execution probationers have a sentence, but they are not serving it; they are on probation. Probation jail time is not the sentence; it is a condition layered onto the probation.
Q: What if the probationer's probation is revoked?
A: The underlying sentence (either newly imposed under 23A-27-13, or executed under 23A-27-18) becomes the operative incarceration. Days already served on the probation condition are credited against the sentence, but good time on that pre-revocation jail time still does not retroactively appear. The good time clock starts at revocation, applied to the sentenced time going forward.
Q: Does this rule apply to other probation conditions like community service?
A: The opinion only addresses jail/penitentiary time as a condition. Other conditions (community service, treatment, electronic monitoring) are not "sentenced time" either; they are probation conditions. SDCL 24-5-1 good time is irrelevant to them. The question only matters when the condition involves physical incarceration that could in theory be reduced by good time credits.
Q: What if a court accidentally describes the probation condition as a "sentence"?
A: The opinion does not directly address this, but the textual analysis would not bend based on word choice. The legal status of the time is determined by the underlying statute (SDCL 23A-27-18.1 versus a direct prison sentence under the general sentencing provisions), not by the label the court uses in the order. A judge clarifying intent on the record could avoid future ambiguity.
Q: Is there any way to get good time on probation jail time?
A: Not under the 1984 framework. Any path to good time would require either a legislative amendment to SDCL 23A-27-18.1 specifying that probation incarceration counts as "sentenced" time, or judicial reinterpretation of SDCL 24-5-1 to extend it to probation conditions. Neither occurred in the 1984 analysis.
Background and statutory framework
Probation jail time as a condition was a relatively new tool in 1983-1984. Pre-1983, probation conditions typically did not include direct incarceration; the trade was probation instead of prison, not probation with a short prison stay. The 1983 amendment to SDCL 23A-27-18.1 gave courts a new middle-ground option: the defendant got the rehabilitative structure of probation but also a taste of incarceration as a deterrent and a consequence.
The good time question Warden Solem raised was a natural early administrative puzzle. Good time credits in SDCL 24-5-1 reflect a longstanding penological policy of incentivizing prisoner behavior by allowing earned time off. The statute was drafted for the regular prison sentence context. The new probation condition created a class of inmates the statute had not contemplated.
Meierhenry's reading kept good time tightly tied to "sentenced" status. The rationale was that probationers were not in the penitentiary as a punishment imposed by sentence; they were there as a probation condition the court had chosen. The behavior-incentive logic of good time was a worse fit because the probation condition was already a fixed-duration shock, not the kind of indeterminate stay that good time was designed to manage.
The credit-against-future-sentence rule in SDCL 23A-27-18.1 itself handles the most common fairness concern: a probationer who serves 60 days under the probation condition and then gets probation revoked does not serve those 60 days twice. Whether the credit also brings good time along with it (so the 60 days reduces the revocation sentence by, say, 65 days instead of 60) is a different question the 1984 opinion did not reach.
Citations and references
Statutes:
- SDCL 23A-27-12 (probation generally)
- SDCL 23A-27-13 (suspended imposition of sentence)
- SDCL 23A-27-18 (suspended execution of sentence)
- SDCL 23A-27-18.1 (probation condition jail/penitentiary time, as amended 1983)
- SDCL 24-5-1 (good time credit for sentenced convicts)
Source
Original opinion text
April 9, 1984
Mr. Herman Solem, Warden
South Dakota State Penitentiary
Post Office Box 911
Sioux Falls, South Dakota 57117-0911
OFFICIAL OPINION NO. 84-14
Probationers reduction of sentence
Dear Mr. Solem:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
Under the statutory provisions of SDCL 23A-27-18.1 as amended by the 1983 State Legislature, conditions of probation imposed pursuant to a suspended imposition of sentence or a suspended execution of sentence may include the requirement that the defendant be imprisoned in the state penitentiary for a specific period not exceeding sixty days.
Based upon the foregoing facts, you have asked the following question:
QUESTION
Are probationers committed to the penitentiary under the provisions of SDCL 23A-27-18.1 entitled to a reduction of the sentence by virtue of SDCL 24-5-1?
SDCL 23A-27-18.1 reads as follows:
The conditions of probation imposed pursuant to § 23A-27-12 or § 23A-27-13 or the conditions of suspension of execution imposed pursuant to § 23A-27-18, may include the requirement that the defendant be imprisoned in the county jail for a specific period not exceeding one hundred eighty days or in the state penitentiary for a specific period not exceeding sixty days or the sentence which was imposed or which may be imposed by law, whichever is less. The imprisonment may be further restricted to certain days specified by the court as part of such conditions. Any such imprisonment, either in the county jail or state penitentiary, shall be credited toward any incarceration imposed upon any subsequent revocation of a suspended imposition or execution of sentence.
SDCL 24-5-1 reads in pertinent part as follows:
Every convict sentenced for any term less than life, and subject to the provisions of § § 24-2-17 and 24-2-18, shall be entitled to a deduction from his sentence for each year and pro rata for any part of a year . . .
Under SDCL 23A-27-13 the imposition of a defendant's sentence is suspended. Under SDCL 23A-27-18 the execution of a defendant's sentence is suspended. In neither case is a sentence imposed. The imprisonment authorized by SDCL 23A-27-18.1 is a condition of probation. Under both the suspended imposition of sentence and suspended execution of sentence, the defendant is not 'sentenced' as contemplated by SDCL 24-5-1.
Therefore it is my opinion that probationers committed to the penitentiary under the provisions of SDCL 23A-27-18.1 are not entitled to a reduction of the specific period of imprisonment by virtue of SDCL 24-5-1.
Respectfully submitted,
Mark V. Meierhenry
Attorney General