If a sitting city commissioner pleads no contest to embezzlement and the judge finds her guilty but suspends the imposition of sentence (no formal judgment of guilt entered), is she automatically disqualified from holding city office?
Plain-English summary
A South Dakota city commissioner pleaded no contest to embezzlement and was found guilty by the court. The sentence: a fine, community service, and 30 days in jail with work release. But the court did not enter a formal judgment of guilt. Instead, it used SDCL 23A-27-13's "suspended imposition of sentence" tool, which lets the court put the defendant on probation for a set period; if she finishes probation cleanly, the case is dismissed and never legally counts as a conviction.
The question for the AG was whether the commissioner was disqualified from holding municipal office during that probation period. Under SDCL 9-14-2, a municipal officer has to be a qualified voter. Under S.D. Const. art. VII, § 2, a felony conviction disqualifies someone from voting. So everything turned on whether a suspended imposition of sentence counts as a "conviction" while the defendant is on probation.
The 1993 AG said no. A suspended imposition of sentence is procedurally distinct from a suspended execution of sentence. The latter happens after the court enters a judgment of guilt, so the defendant is convicted; only the sentence is suspended. The former happens before judgment of guilt is entered, so there is no conviction at all. SDCL 23A-27-14 expressly says a discharge after probation under SIS "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law."
The AG read State v. Oban and State v. Johnson to confirm that without an entry of judgment, there is no conviction. The fact that the Legislature wrote two explicit carve-outs (SDCL 23A-27-14.1 treats SIS as a conviction for teacher-license decisions, and SDCL 23A-27-15 counts it for habitual-offender determinations) reinforced the conclusion that SIS does not count as a conviction outside those listed exceptions.
The opinion did not leave municipal officials defenseless. SDCL 3-17-6 lets any local government official be removed from office for misconduct, malfeasance, drunkenness, theft, oppression, or other listed grounds. But that requires a proper party to file a complaint, the procedures of SDCL chapter 3-17 to be followed, and the evidence to be proved. There is no automatic disqualification just because the commissioner went through a SIS.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota has amended SDCL chapter 23A-27 multiple times since 1993, including changes to which offenses are eligible for SIS and which trigger automatic loss of voting rights. The constitutional voter-disqualification provision has also been updated. Verify the current statute and constitutional text before treating SIS as a clean slate for any office or licensure question today.
What the opinion meant at the time
For SD city commissioners and city council members facing criminal charges in the 1990s, the opinion confirmed that pleading and accepting a suspended imposition of sentence did not automatically end the office. A judgment of guilt was the trigger; without it, the office continued unless a separate removal proceeding was brought.
For criminal defense lawyers representing public officials, the opinion reinforced the strategic value of negotiating for SIS rather than a sentence after entry of judgment. SIS preserved both the office and the voter status.
For city attorneys advising councils that wanted to remove a commissioner after a serious criminal incident, the opinion pointed to SDCL chapter 3-17. Misconduct removal required a complaint, evidence, and process. There was no shortcut through automatic disqualification.
For county auditors and election officials managing voter rolls, the opinion confirmed that an SIS defendant remained a qualified voter so long as the SIS was not later revoked and replaced with a judgment of guilt.
For prosecutors weighing plea offers in cases involving public officials, the opinion made clear that an SIS would not, by itself, achieve removal of the official from office.
Common questions
Q: What is a suspended imposition of sentence (SIS)?
A: A South Dakota criminal procedure under SDCL 23A-27-13. The court puts the defendant on probation without first entering a judgment of guilt. If probation is completed successfully, the case is dismissed and treated as if no conviction occurred.
Q: How is SIS different from a suspended execution of sentence?
A: A suspended execution comes after the court enters a judgment of guilt. The defendant is convicted. Only the prison time (or other sentence) is suspended. With SIS, no judgment of guilt is ever entered.
Q: Is SIS available for all crimes?
A: No. Eligibility is controlled by SDCL chapter 23A-27 and case law. Some serious offenses are excluded. Check the current statute for your specific charge.
Q: Does SIS show up on a background check?
A: After successful completion, SDCL 23A-27-17 seals the record. While the defendant is still on probation, the record exists and is generally accessible to law enforcement and the court system.
Q: Could a city commissioner who fails SIS probation be removed?
A: Yes. If the court revokes SIS and enters a judgment of guilt, the defendant becomes a convicted person. If the underlying offense is a felony, the constitutional voter-disqualification provision applies and the office would be lost through SDCL 9-14-2.
Q: Are there exceptions where SIS does count as a conviction?
A: Yes. SDCL 23A-27-14.1 makes SIS count as a conviction for refusing or revoking a teacher's certificate for certain offenses. SDCL 23A-27-15 makes it count as a prior conviction in habitual-offender calculations. These are the only carve-outs the 1993 AG identified.
Q: How can a city remove a commissioner who is on SIS for embezzlement?
A: Through the SDCL 3-17-6 misconduct-removal procedure. A complaint must be filed, the procedural steps of chapter 3-17 followed, and the misconduct (here, the underlying embezzlement conduct) proved by the proper standard.
Background and statutory framework
South Dakota's municipal eligibility rules are simple on the surface. Under SDCL 9-14-2, no person is eligible to hold municipal office unless that person is a qualified voter of the municipality. Under SDCL 9-9-2, a member of a city commission must additionally be a citizen of the United States and a resident and voter of the municipality.
The voter-qualification piece is set by the South Dakota Constitution. Art. VII, § 2 entitles every U.S. citizen 18 or older with proper residency to vote unless disqualified by law for, among other things, "the conviction of felony."
So the question of office-eligibility for a commissioner facing criminal charges turns on whether the criminal proceeding produced a "conviction of felony" in the constitutional sense.
South Dakota recognizes two distinct ways the court can spare a defendant from immediate jail time after a guilty plea: suspended execution of sentence (after judgment) and suspended imposition of sentence (before judgment). SIS is the more powerful tool. The court suspends the imposition of sentence, places the defendant on probation, and never enters a judgment of guilt unless and until probation is revoked. SDCL 23A-27-14 specifies that the eventual clean dismissal "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law."
The SD Supreme Court took up the legal status of SIS-before-judgment in State v. Oban and State v. Johnson. The clear holding: there is no conviction until a judgment of guilt is entered. The 1993 AG built directly on that case law.
The Legislature has carved out two exceptions to that no-conviction rule, both by explicit statute: SDCL 23A-27-14.1 (teacher licensure) and SDCL 23A-27-15 (habitual offender). The expressio unius canon means that no other implicit exceptions exist. Voter qualification is not on the carve-out list, so SIS does not count as a conviction for that purpose.
The remaining question was procedural: was the commissioner automatically out of office? The AG said no. Removal for misconduct is available through SDCL chapter 3-17, but only with proper process. Without process, the elected official keeps her seat.
Citations and references
Statutes and constitutional provisions:
- S.D. Const. art. VII, § 2 (voter qualification, felony disqualification)
- SDCL 9-14-2 (municipal officer must be qualified voter)
- SDCL 9-9-2 (commission government eligibility)
- SDCL 23A-27-13 (SIS procedure)
- SDCL 23A-27-14 (clean dismissal not a conviction)
- SDCL 23A-27-14.1 (teacher-license carve-out)
- SDCL 23A-27-15 (habitual-offender carve-out)
- SDCL 23A-27-17 (sealing)
- SDCL 23A-27-18 (suspended execution of sentence, distinguished)
- SDCL 3-17-6 (misconduct removal)
Cases:
- State v. Oban, 372 N.W.2d 125 (S.D. 1985)
- State v. Johnson, 254 N.W.2d 114 (S.D. 1977)
- Williams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F. Supp. 1194 (D.S.D. 1975)
- Matter of Weisensee, 296 N.W.2d 717 (S.D. 1980)
- Aman v. Edmunds Central School District, 494 N.W.2d 198 (S.D. 1992)
Source
Original opinion text
OFFICIAL OPINION NO. 93-14
The effect of a suspended imposition of sentence on city commissioner's ability to hold office
Dear Mr. Glover:
You have asked for an official opinion of this Office regarding the following facts:
FACTS:
Recently a city commissioner was charged with the offense of embezzlement. The commissioner entered a plea of no contest and the court found her guilty. Subsequently, the court suspended an imposition of the commissioner's sentence, on the condition that she pay a fine, perform community service and serve thirty days in the county jail with work release.
Based on these facts, you have asked the following question:
QUESTION:
Is the commissioner disqualified from holding office?
An initial legal explanation is in order. You note that the court "found" the commissioner to be "guilty," but that the court had "suspended an imposition of the commissioner's sentence." A "suspended imposition of sentence" is a special criminal law remedy and must be distinguished from, but is often confused with, "suspended execution of sentence."
In this situation, the circuit court has followed the provisions of SDCL 23A-27-13, the special criminal remedy relating to suspended imposition of sentence mentioned above. Pursuant to the terms of the statute, the trial court determined that "the ends of justice and the best interest of the public" would be served "without entering a judgment of guilt" and by "suspend[ing] the imposition of sentence and plac[ing] the defendant on probation." Id. This action is taken for "such period and upon such terms and conditions as the court may deem best." Id.
If the probationer meets such terms and conditions for the specified period of time, a "formal entry of . . . discharge shall be entered by the clerk of courts," and the criminal action "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law." SDCL 23A-27-14. Once that has taken place, the individual's criminal record is sealed and, for most purposes, neither the crime nor the conviction officially took place. SDCL 23A-27-17. (As noted above, such action by a trial court is different from, but often confused with, a suspended execution of sentence, which takes place after conviction and entry of a judgment of guilt by the court. SDCL 23A-27-18.)
The "before judgment of guilt" aspect of a suspended imposition of sentence has been affirmed by the South Dakota Supreme Court. State v. Oban, 372 N.W.2d 125 (S.D. 1985). Although, as you noted, the trial judge "found" the commissioner "guilty," the judge did not enter a formal judgment of guilt. Obviously, that is a crucial factor to be considered in answering your question.
In order to hold the office in question, a person must be eligible to vote. SDCL 9-14-2 provides, in pertinent part:
Except as otherwise provided, no person is eligible to any municipal office who is not a qualified voter of the municipality.
SDCL 9-9-2 more specifically provides that under a commission form of city government:
No person shall be eligible to nomination or election as a member of the board unless he shall be a citizen of the United States and shall be a resident and voter of the municipality.
In order to qualify to vote, persons must meet a requirement of Art. VII, § 2 of the South Dakota Constitution, which reads:
Every United States citizen eighteen years of age or older who has met all residency and registration requirements shall be entitled to vote. . . unless disqualified by law for . . . the conviction of felony.
Consequently, in this instance, our analysis must consider whether the suspended imposition of sentence constitutes a conviction of a felony for voter qualification purposes.
In interpreting the predecessor of SDCL 23A-27-14 (SDCL 23-57-4), the South Dakota Supreme Court held that, absent an entry of judgment of guilt, there was no conviction and further stated:
The sentence in the statute providing that the discharge and dismissal 'shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction' may also be troublesome to some. It does not state either explicitly or implicitly, however, that the discharge and dismissal remove any disqualification or disability. In this court's opinion, that sentence is designed to make it abundantly clear that a person dismissed and discharged from probation under this statute shall not suffer disabilities or disqualifications normally attached to a conviction. It does not appear to mean that disabilities and disqualifications attached at the time of probation and are removed only upon discharge and dismissal. (Emphasis added.)
State v. Johnson, 254 N.W.2d 114, 120-121 (S.D. 1977) (quoting Williams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F. Supp. 1194, 1200-1201 (D.S.D. 1975)); cf. Matter of Weisensee, 296 N.W.2d 717 (S.D. 1980) (where court suspended imposition but entered judgment, Johnson inapposite). I conclude that, absent an entry of judgment, loss of the right to vote is not one of the disqualifications that the recipient of a suspended imposition of sentence suffers.
My conclusion is reinforced by a rule of statutory construction which provides that "the expression of one thing is the exclusion of another." Aman v. Edmunds Central School District, 494 N.W.2d 198, 200 (S.D. 1992). SDCL 23A-27-14.1 is also part of the statutory plan. The statute provides that a suspended imposition for the commission of certain enumerated offenses may be considered a conviction for the purposes of refusing or revoking a certified teacher's license. Additionally, SDCL 23A-27-15 states that a suspended imposition may be considered a prior conviction solely for the purposes of determining whether a defendant is a habitual offender. No comparable provision exists, however, regarding the crime here at issue (embezzlement) or the position in question (city commissioner). In light of the above-mentioned mode of construction, the listing of the two exceptions to the general rule regarding suspended sentences supports an inference that the exceptions are exclusive; if the Legislature had wished to designate suspended impositions as convictions for the purposes of voter disqualification, it would have so stated in statute. Since a suspended imposition of sentence does not amount to a conviction for such purpose, it does not, of its own accord, disqualify a municipal official from holding office.
I note, however, that the requirement of a conviction as a prerequisite to this type of disqualification does not leave the integrity of the position of city commissioner unprotected. SDCL 3-17-6 provides:
Any officer of any local unit of government may be charged, tried, and removed from office for misconduct, malfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality.
The remainder of ch. 3-17 sets forth the procedures for initiating such removal. Absent the proper party filing a complaint and meeting the burden of proof in such proceedings, the public officer may remain in office.
My answer to your question is "no." The court made a finding of guilt similar to a jury finding of guilt, but did not enter a judgment against the commissioner. The judgment is a necessary prerequisite before the person stands convicted. Consequently, she did not receive a "conviction" that would remove her voting rights. She remains a qualified voter and, assuming she meets the other requirements for office, she is not disqualified from holding public office.
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