South Dakota classifies misdemeanors into two categories. Class 1 misdemeanors are the most serious and Class 2 misdemeanors are the least. Misdemeanor convictions can mean jail time, probation, fines, and other punishments. Felonies are more serious crimes, punishable by prison terms of more than one year and up to life in prison or the death penalty. For more information on felonies, check out South Dakota Felony Crimes by Class and Sentences.
This article will review misdemeanor penalties, sentencing, and expungement options in South Dakota.
South Dakota has categorized numerous crimes as misdemeanor offenses. The following list presents just a few examples of crimes in each of the two misdemeanor classes.
Class 1 misdemeanors carry a maximum penalty of up to one year's imprisonment and $2,000 in fines. Class 2 misdemeanors come with the potential penalty of up to 30 days' imprisonment and $500 in fines.
Even though misdemeanors are classified by the amount of time one could possibly spend in jail, not everyone convicted of a misdemeanor will go to jail. Most often, judges reserve jail sentences for repeat or violent offenses. As noted below, judges have several sentencing options available short of jail time.
In South Dakota, a person charged with a misdemeanor will go before a magistrate judge. Magistrate judges have several sentencing options at their disposal for misdemeanor convictions, including jail, probation, fines, fees, restitution, and community service. If available, certain defendants may be eligible to participate in a problem-solving court (such as drug court) or a pretrial diversion program offered by a state's attorney's office.
Pretrial diversion offers an offender a chance to avoid criminal court and a conviction completely. Generally, these diversion programs apply only to first-time offenders charged with a misdemeanor or low-level felony. Not every county offers diversion and those that do generally focus on a particular crime or offender, such as young adult diversion programs.
If available and a defendant qualifies, the state's attorney will hold off on filing criminal charges so long as the defendant abides by the terms and conditions of the program. These terms might include participating in community service, attending drug or alcohol counseling or education, and abstaining from drugs or alcohol. Successful completion results in dismissal of the charges and no conviction. If a defendant fails to comply with program terms, the state's attorney can terminate their participation and reinstate the charges.
For those who end up in court, first-time offenders may be able to avoid a criminal conviction through a suspended imposition of sentence (sometimes called deferred adjudication). Here, a judge may accept a defendant's guilty plea but hold off on entering a conviction and sentence. Instead, the judge places the defendant on probation. Probation conditions may include paying restitution, completing community service, attending counseling or substance use treatment, and remaining law-abiding. If the defendant successfully completes probation, the judge dismisses the case—meaning no conviction. The unsuccessful probationer, however, will have to go back before the judge and continue with sentencing.
This option is only available once. A defendant facing a second or subsequent misdemeanor conviction isn't eligible.
As another option, judges can suspend the execution of the sentence. This means the judge will enter the conviction and sentence but hold off on sending the defendant to jail. Defendants serve their time on probation in the community with their jail sentence hanging over their heads. Similar to above, the defendant must abide by all the conditions of probation, which can include a short stint (or stints) in county jail. Upon successfully completing probation, the defendant will still have a conviction but, generally, avoids all or a significant amount of jail time. For a violation of probation, the judge can modify the probation terms or revoke probation and send the person to jail.
Problem-solving courts are specialized court dockets that focus primarily on defendants with substance abuse or behavioral health issues. Examples of problem-solving courts include drug, DUI, mental health, and veterans' courts. These programs involve intensive supervision, frequent court appearances, and intervention programs designed to address the offender's addiction or mental health needs. Accepted applicants are typically sentenced to probation (see above) that is conditioned on participating in the problem-solving court.
Upon a misdemeanor conviction, a judge can impose a jail sentence up to the maximum allowed by the law—30 days for a Class 2 misdemeanor and one year for a Class 1 misdemeanor. Other common sentencing options include fines, court fees, and restitution. Fines and fees are paid into government coffers. Restitution is money paid to victims for crime-related losses and expenses, such as hospital bills and repairs to damaged property.
South Dakota law authorizes enhanced felony penalties for certain repeat misdemeanor convictions. For instance, a second stalking offense will be treated as a Class 6 felony rather than a Class 1 misdemeanor. If the violation involved the same victim, the penalty increases to a Class 5 felony. As another example, repeat convictions for simple assault carry a range of felony enhancements—a third offense is a Class 6 felony, a fourth offense is a Class 5 felony, and a fifth or subsequent offense is a Class 4 felony. Some enhancements apply only if prior convictions occurred within a certain time period (such as the past 10 years), while others don't specify a look-back period.
Expungement options in South Dakota are very limited. However, unlike many other states, the process occurs automatically (without additional fees or hearings). Below are the expungement options for misdemeanors.
If a defendant receives a suspended imposition of sentence (Class 1 or 2 misdemeanor) and successfully completes probation, the court must seal the defendant's records upon dismissal of the case. Similarly, in pretrial diversion cases, the law directs the court to seal the defendant's records upon receiving notice from the state's attorney that the defendant completed diversion. Lastly, charges and convictions for Class 2 misdemeanors are automatically removed from a defendant's public record after five years have passed with no intervening convictions.
Even though South Dakota misdemeanor offenses are much less serious than felony offenses, a defendant still faces the possibility of jail time and fines if convicted. Misdemeanor convictions can also be used to enhance future charging decisions and are public records, meaning future employers, landlords, and others can see them.
If you are charged with any crime, talk to an experienced South Dakota criminal defense attorney about your case. An attorney can explain the charges, how the assigned judge and prosecutor are likely to handle the case, and what to expect in court. An attorney can also determine what defenses may apply and how to present the strongest arguments to protect your rights and achieve the best possible outcome.
(S.D. Cod. Laws §§ 22-6-2, -8; 23A-3-34, -35; 23A-27-12.2, -14, -18, -18.1, -18.3 (2021).)