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? Without good time, the probationer served the full term the court set.

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. 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 may have been amended since 1984, so the distinction the opinion drew between "sentenced" status and "probation condition" status may apply differently today. Verify current law before relying on any specific rule mentioned here.

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: SDCL 23A-27-18.1 provides that any imprisonment served as a probation condition "shall be credited toward any incarceration imposed upon any subsequent revocation." So the days already served reduce the time remaining on the underlying sentence. The opinion did not reach whether good time travels with that credit.

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: Did probationers get any good time on this jail time under the opinion's reading?
A: No. SDCL 24-5-1's good time deduction applies to a "convict sentenced for any term less than life." The opinion concluded that a probationer serving jail or penitentiary time as a probation condition under SDCL 23A-27-18.1 is not "sentenced" in that sense, whether the probation rests on a suspended imposition (SDCL 23A-27-13) or a suspended execution (SDCL 23A-27-18). With no sentence, there is nothing for good time to reduce.

Background and statutory framework

Probation jail time as a condition was a new tool. As the opinion recites, the 1983 Legislature amended SDCL 23A-27-18.1 to let a court require a defendant on probation to be imprisoned in the county jail for up to 180 days or in the state penitentiary for up to 60 days (or the sentence imposed or imposable, whichever is less) as a condition of probation.

The good time question Warden Solem raised followed from that. SDCL 24-5-1's good time deduction was written for the "convict sentenced" context, and the new probation condition created a category of inmate that the good time statute's "sentenced" language did not plainly cover.

Meierhenry's reading kept good time tied to "sentenced" status. His analysis was textual: under both suspended imposition (SDCL 23A-27-13) and suspended execution (SDCL 23A-27-18) "no sentence is imposed" in the sense SDCL 24-5-1 contemplates, so the probationer is not "sentenced" and earns no deduction.

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

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1125

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