South Dakota has nine classes of felony offenses—all of which can mean time in a state penitentiary or prison. The most serious felonies—Classes A, B, and C—carry possible life sentences, and Class A felonies can also be punished by death. The remaining felonies are numbered Class 1 to 6, with Class 1 being the most serious and Class 6 being the least serious. Any offense that cannot result in prison time is considered a misdemeanor.
This article will discuss felony sentencing, probation, and parole in South Dakota.
Each of South Dakota's nine felony classes has a maximum penalty associated with it. These maximums represent the highest penalty a court can impose for a conviction unless an enhancement applies. (More on enhancements below.)
Below are the maximum penalties by class and examples of crimes that fall under each felony classification.
Class A, B, and C felonies. Punishable by life in prison and up to a $50,000 fine. Judges cannot impose any sentence lighter than a life sentence for Class A and B felony convictions. A person convicted of a Class A felony also faces the possibility of the death penalty. First-degree murder is the only Class A felony. Class B felonies include second-degree murder and first-degree aggravated kidnapping. First-degree rape, first-degree manslaughter, and terrorism are examples of Class C felonies.
Class 1 felony. Up to 50 years' imprisonment and $50,000 in fines. Examples include second-degree rape, selling meth to a minor, and human trafficking involving torture.
Class 4 felony. Up to 10 years' imprisonment and $20,000 in fines. Examples include selling child pornography, stealing drugs, and rioting with force or violence.
Class 5 felony. Up to 5 years' imprisonment and $10,000 in fines, or up to a year in county jail. Examples include threats to public officials, repeat stalking offenses, and promotion of prostitution.
Class 6 felony. Up to 2 years' imprisonment and $4,000 in fines, or up to one year in county jail. Examples include falsification of evidence, possession of a firearm with an altered serial number, and malicious harassment (hate crime).
Some crimes include a minimum, as well as a maximum, sentence. For instance, committing an armed felony is a Class 1 felony with a minimum sentence of five years. Other examples of crimes with mandatory minimums include sale of meth to a minor, sale of drugs in a drug-free zone, and rape of a child.
South Dakota law requires courts to impose sentencing enhancements for repeat felony offenders.
One or two prior felony convictions. Anyone convicted of a felony who has one or two prior felony convictions will have their sentence increased to the next severity level, up to a maximum level of a Class C felony. For example, someone convicted of a Class 5 felony who has a prior felony conviction will receive a Class 4 felony sentence.
Three or more prior felony convictions. Anyone convicted of a felony who has three or more prior felony convictions will have their sentence increased by two levels, up to a maximum level of a Class C felony. If at least one prior involved the commission of a violent crime, the sentence automatically increases to a Class C felony.
Prior felony sex crime conviction. An adult convicted of a second or subsequent felony sex crime must serve the maximum sentence or 25 years, whichever is less.
Unless the law requires a minimum sentence, South Dakota judges can impose any prison sentence up to the maximum allowed. Not every felony conviction, however, results in the maximum sentence or even prison. Judges look to the offender and circumstances of the offense when deciding the appropriate sentence.
Judges have several sentencing options at their disposal, including:
If available in the judicial district, some felony offenders may be eligible to participate in a problem-solving court like drug, DUI, mental health, or veterans' court. These programs generally involve intensive supervision, frequent court appearances, and intervention programs designed to address the offender's addiction or mental health needs. Accepted applicants are sentenced to probation (see below) that is conditioned on participating in the problem-solving court.
Probation allows offenders to serve all or part of their sentence supervised in the community. Defendants convicted of a Class A, B, or C felony or a second or subsequent crime of violence don't qualify for probation. On the flip side, the law presumes probation for most Class 5 and 6 felony convictions.
Suspending the sentence. When ordering probation, a judge suspends either "imposition or execution" of the sentence. Suspending imposition means the judge holds off on entering the judgment (guilty) or enters the judgment but holds off on announcing the sentence. This option is generally limited to those facing low-level felony drug charges or first-time felons. Suspending execution means the judge will hand down the sentence but hold off on sending the person to prison. In this scenario, a defendant might have to serve up to a year in jail or prison as part of probation.
Probation conditions. All defendants on probation must abide by the conditions imposed by the court. These conditions will usually include obeying all laws, attending work, school, treatment, or counseling, staying away from victims, and paying victim restitution. A violation of these terms means the judge can modify the probation conditions or revoke probation and send the offender to prison.
Completion. If a defendant successfully completes probation, the resulting disposition will depend on the original sentence. For cases where the sentence wasn't imposed, the court can discharge the case and no conviction is entered. Other types of probation result in a conviction and completion of the sentence.
For defendants sentenced to prison, the sentence term handed down by the judge represents the longest amount of time the person can remain in prison. A defendant may be released earlier under parole supervision (discussed next).
South Dakota has a fairly unique parole system that provides two types of early release: automatic parole release and discretionary parole board release. Before becoming eligible for either parole possibility, the inmate must serve 25 to 75% of their sentence. Here's how it works.
Upon entering prison, an inmate receives an initial parole date—representing the earliest date an inmate could be paroled. This date is decided using a grid that takes into account an inmate's prior felonies and the felony level and classification (violent or non-violent) of the current conviction. On the low end on the grid, nonviolent offenders with no prior felony convictions could receive an initial parole date that would require them to serve only 25% of their sentence, while more serious, repeat offenders may be looking at spending at least 50 to 75% of their sentence behind bars. (Inmates serving life sentences don't generally qualify for parole.)
Along with an initial parole date, the inmate receives an individual program directive (IPD). The IPD establishes requirements for each inmate to complete while incarcerated, such as treatment, work, classes, and discipline expectations.
If the inmate substantially complies with the IPD (decided by the warden) and has an approved parole plan, the inmate qualifies for automatic parole release on their initial parole date. (There's no board hearing.)
An inmate who has not complied with their IPD can present their case to the parole board. The board may grant or deny parole. Upon denial, the inmate must wait two years to go back to the parole board.
Parole is supervised similar to probation with conditions of release, and violations can land the inmate back in prison. Generally, parole supervision lasts the remainder of the full sentence term. However, a parolee who complies with the parole plan can earn credits that shorten their time under supervision.
Anyone facing a felony charge in South Dakota needs to speak to an experienced criminal defense lawyer as soon as possible. An attorney will help explain the criminal justice system, protect your rights, and work to achieve a favorable outcome.
(S.D. Cod. Laws §§ 16-22-4, 22-6-1, 22-6-1.1, 22-6-1.2, 22-7-7, 22-7-8, 22-7-8.1, 23A-27-1, 23A-27-13, 23A-27-18, 23A-27-52, 24-15A-32, 24-15A-34, 24-15A-38 (2021).)