State v. Pickner

#31154-r-SPM
2026 S.D. 29

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

WILEY JOE PICKNER, Defendant and Appellee.

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

THE HONORABLE M. BRIDGET MAYER
Judge

MARTY J. JACKLEY
Attorney General

ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellant.

JUSTIN L. BELL of
May, Adam, Gerdes & Thompson, LLP
Pierre, South Dakota Attorneys for defendant and
appellee.

ARGUED
MARCH 19, 2026
OPINION FILED 05/13/26
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MYREN, Justice

[¶1.] A jury found Wiley Pickner guilty of third-degree rape. The circuit

court entered a judgment of conviction and sentenced him to a term in the

penitentiary. Pickner was released from the penitentiary on parole supervision in

March 2022. In January 2023, Pickner filed a motion for a sentence reduction

pursuant to SDCL 23A-31-1, specifically requesting a suspended imposition of

sentence. The circuit court granted the motion and placed Pickner on probation.

The State filed a motion to reconsider, challenging the circuit court’s authority to

modify Pickner’s conviction into a suspended imposition of sentence. The circuit

court denied the State’s motion, and the State filed an appeal, which this Court

dismissed. The State then filed a motion to correct an illegal sentence, which the

circuit court denied. This Court granted the State’s petition for a discretionary

appeal. We reverse.

Factual and Procedural Background

[¶2.] A jury convicted Pickner of third-degree rape in September 2020. In

January 2021, the circuit court found Pickner guilty, sentenced Pickner to ten years

in the penitentiary with seven years suspended, and entered a judgment of

conviction. Pickner did not file any appeals challenging his conviction or his

sentence. Pickner was released from the penitentiary in March 2022 and placed on

parole supervision with the Department of Corrections (DOC).

[¶3.] While still on parole, Pickner filed a “motion for sentence reduction”

pursuant to SDCL 23A-31-1 in January 2023. He asked the circuit court “to vacate

the judgment of conviction and grant a suspended imposition of sentence.”

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[¶4.] The circuit court held a modification hearing in March 2023. Pickner

reiterated the request in his motion—that the circuit court vacate his conviction,

grant a suspended imposition of sentence, and place him on probation. The State

opposed the motion. The circuit court granted Pickner’s request for a suspended

imposition of sentence and placed him on probation for 15 years. The circuit court

stated that it was not vacating Pickner’s conviction but merely modifying it.

[¶5.] Before the circuit court entered a written order reflecting its decision,

the State filed a motion to reconsider. The State advanced two arguments. First,

the State asserted that, because Pickner was a parolee and subject to the

supervision of the DOC, the circuit court did not have jurisdiction to modify

Pickner’s sentence in a way that deprived the DOC of supervision. It asserted that

such a modification would violate the separation of powers between the executive

and judicial branches. Second, the State argued that SDCL 23A-27-19 and SDCL

23A-31-1 (which generally give the circuit court jurisdiction to reduce or suspend a

sentence for two years after its imposition) do not authorize the circuit court to

vacate a judgment of conviction to grant a suspended imposition of sentence.

Pickner opposed the State’s motion, claiming that SDCL 23A-31-1 grants the circuit

court continuing jurisdiction to modify its sentence during the two years after it is

originally imposed, and that because Pickner was eligible to receive a suspended

imposition of sentence when he was originally sentenced, he could receive one on a

motion for a reduction of his sentence.

[¶6.] The circuit court denied the State’s motion to reconsider and entered a

written order granting Pickner a suspended imposition of sentence. In the circuit

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court’s order, it explained, “[i]f necessary to achieve the reduction of sentence as

stated herein, the previous judgments are vacated, and the court is granting or

modifying or reducing” Pickner’s original sentence to a suspended imposition of

sentence.

[¶7.] The State appealed the circuit court’s order suspending the imposition

of sentence. This Court dismissed the appeal, determining there is no statute

providing appellate jurisdiction from a circuit court’s decision to modify a sentence.

When the case returned to the circuit court, the State filed a motion to correct

Pickner’s sentence under SDCL 23A-31-1, claiming the circuit court’s modification

of Pickner’s sentence was illegal or imposed in an illegal manner. The State

advanced substantially the same arguments it made in conjunction with its motion

to reconsider. Pickner opposed the State’s motion on the merits and also argued

that res judicata barred the State’s current attempt to challenge the circuit court’s

modified sentence.

[¶8.] The circuit court denied the State’s motion to correct Pickner’s

sentence. It concluded that it had authority under SDCL 23A-31-1 and SDCL 23A-

27-19 to grant a suspended imposition of sentence under the circumstances

presented in this case. It also concluded that res judicata barred the State’s

attempt to challenge the sentence reduction after its initial attempt failed.

[¶9.] The State filed a petition for a discretionary appeal, which this Court

granted. The State raises the following issues: (1) whether the circuit court erred

when it concluded the State’s motion to correct Pickner’s sentence was barred by res

judicata; (2) whether the circuit court erred when it concluded it had jurisdiction

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and statutory authority to vacate a conviction to grant a suspended imposition of

sentence.

Decision

1. Whether the circuit court erred when it concluded
the State’s motion to correct Pickner’s sentence was
barred by res judicata.

[¶10.] “A decision on the question of the application of res judicata is

reviewed de novo.” Nemec v. Goeman, 2012 S.D. 14, ¶ 11, 810 N.W.2d 443, 446

(citing People ex rel. L.S., 2006 S.D. 76, ¶ 21, 721 N.W.2d 83, 89). “The trial court’s

findings of fact will be upheld unless clearly erroneous.” Id. (quoting Pietrzak v.

Schroeder, 2009 S.D. 1, ¶ 38, 759 N.W.2d 734, 744).

[¶11.] “We have recognized two ‘distinct’ types of res judicata—issue

preclusion and claim preclusion[.]” Ceplecha v. Sullivan, 2023 S.D. 63, ¶ 27, 998

N.W.2d 351, 358. “Issue preclusion refers to the effect of a judgment in foreclosing

relitigation of a matter that has been litigated and decided[.]” Id. (quoting Piper v.

Young, 2019 S.D. 65, ¶ 22, 936 N.W.2d 793, 804). It “prevents relitigation only of

issues actually litigated in a prior proceeding.” Healy Ranch, Inc. v. Healy, 2022

S.D. 43, ¶ 41, 978 N.W.2d 786, 798 (emphasis omitted) (quoting Nelson v. Hawkeye

Sec. Ins. Co., 369 N.W.2d 379, 381 (S.D. 1985)). Claim preclusion is broader than

issue preclusion because “[w]hat is prohibited . . . under claim preclusion is [a]

cause of action itself,” not just a discrete issue. Id. (citations omitted). It “refers to

the effect of a judgment in foreclosing litigation of a matter that never has been

litigated, because of a determination that it should have been advanced in an

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earlier suit[.]” Ceplecha, 2023 S.D. 63, ¶ 27, 998 N.W.2d at 358 (citation omitted).

The theory advanced by Pickner involves issue preclusion.

[¶12.] “The difference between issue and claim preclusion is largely ‘one of

degree and emphasis[.]’” Healy Ranch, Inc., 2022 S.D. 43, ¶ 41, 978 N.W.2d at 798

(quoting 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure

§ 4402 (3d ed. 2021)). For this reason, “[w]e have frequently applied [the same

elements] to res judicata arguments under both issue preclusion and claim

preclusion theories.” Id. ¶ 43, 978 N.W.2d at 799 (collecting cases where this Court

applied the same elements to res judicata arguments premised on claim and issue

preclusion theories). This Court applies a four-part test to res judicata claims:

(1) the issue in the prior adjudication must be identical to the
present issue, (2) there must have been a final judgment on the
merits in the previous case, (3) the parties in the two actions
must be the same or in privity, and (4) there must have been a
full and fair opportunity to litigate the issue in the prior
adjudication.

Dakota, Minn. & E. R.R. Corp. v. Acuity, 2006 S.D. 72, ¶ 17, 720 N.W.2d 655, 661

(citations omitted).

[¶13.] In its memorandum opinion, the circuit court concluded that “all the

factors stated above weigh in favor of [Pickner].” The circuit court noted that the

issue raised in the State’s motion to correct Pickner’s sentence was identical to the

issue raised in its motion to reconsider, its denial of the State’s motion to reconsider

was a “final order,” the parties were the same, and the State had a full and fair

opportunity to litigate in the “prior adjudication.”

[¶14.] A fatal flaw with the circuit court’s analysis is that the State was

precluded from obtaining appellate review of the circuit court’s original decision

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that it was authorized to grant a suspended imposition of sentence in these

circumstances. “Even where it is the case that the availability of appellate review is

not always considered an essential predicate of collateral estoppel, the

unavailability of appellate review strongly militates against giving a judgment

preclusive effect.” 50 C.J.S. Judgments § 1000 (footnote omitted); see also

Restatement (Second) of Judgments § 28 (1982) (“Although an issue is actually

litigated and determined by a valid final judgment, and the determination is

essential to the judgment, relitigation of the issue in a subsequent action between

the parties is not precluded [when] [t]he party against whom preclusion is sought

could not, as a matter of law, have obtained review of the judgment in the initial

action[.]”); Standefer v. United States, 447 U.S. 10, 21–25 (1980) (describing the

problems associated with applying collateral estoppel in criminal cases against the

State, one of which is that “in a criminal case the [State] has no similar avenue to

correct errors”).

[¶15.] The State promptly opposed Pickner’s motion for a sentence reduction.

After the circuit court granted Pickner’s motion for a sentence reduction, the State

filed a motion requesting the circuit court reconsider its decision. The circuit court

denied that motion, and the State appealed that denial to this Court. This Court

dismissed the appeal because the circuit court’s order suspending the imposition of

sentence was not an order appealable as a matter of right. When the case returned

to the circuit court, the State filed a motion contending that the circuit court

imposed an illegal sentence, or imposed it in an illegal manner, and asking the

circuit court to correct that sentence. There was substantial overlap between the

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arguments and issues raised by the State’s motion for reconsideration and its

motion to correct Pickner’s sentence. After the circuit court denied its motion, the

State filed a petition for a discretionary appeal, which this Court granted. In the

circumstances of this case, the State’s inability to obtain appellate review of its

challenge to Pickner’s sentence modification “strongly militates against” giving

preclusive effect to the circuit court’s order reducing Pickner’s sentence.1 The

circuit court erred in concluding that the State was barred by res judicata from

challenging the legality of the circuit court’s order suspending the imposition of

sentence in the circumstances presented in this case.

2. Whether the circuit court erred when it concluded it
had jurisdiction and statutory authority to vacate a
judgment of conviction to grant a suspended
imposition of sentence.

[¶16.] The State advances two principal arguments. First, it contends that

because Pickner was under the executive branch’s supervision, the circuit court

lacked jurisdiction to modify Pickner’s sentence in a manner that deprived the DOC

of supervision (the separation-of-powers theory). Second, the State contends that

1. For substantially the same reason, the law of the case doctrine does not apply
to this appeal. “The ‘law of the case’ doctrine is intended to afford a measure
of finality to litigated issues.” Grynberg Expl. Corp. v. Puckett, 2004 S.D. 77,
¶ 21, 682 N.W.2d 317, 322 (emphasis omitted) (citation omitted). “[T]he
doctrine is usually applied when a question decided on a former appeal is
questioned in a second or any subsequent appeal involving any branch of the
case.” Id. (citation omitted); see also In re Pooled Advocate Trust, 2012 S.D.
24, ¶ 23, 813 N.W.2d 130, 139 (citation omitted) (“The ‘law of the case’
doctrine . . . stands for the general rule that ‘a question of law decided by the
[S]upreme [C]ourt on a former appeal becomes the law of the case . . . and
will not ordinarily be considered or reversed on a second appeal when the
facts and the questions of law presented are substantially the same.’”). Here,
there is no former appeal because the State was prohibited from obtaining
appellate review, until now.

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the plain language of SDCL 23A-27-19 and SDCL 23A-31-1 does not allow the

circuit court to vacate a conviction to enter a suspended imposition of sentence.

Underlying this argument is the premise that those statutes do not authorize the

circuit court to alter a defendant’s conviction status after a sentence has been

imposed.

[¶17.] Both of the State’s arguments challenge the circuit court’s jurisdiction,

but each require its own analysis. Both are subject to the same standard of review.

“[W]hether a defendant’s sentence exceeds the jurisdiction and authority of the

court is reviewed de novo.” State v. Humpal, 2017 S.D. 82, ¶ 6, 905 N.W.2d 117, 119

(citation omitted). “The power to sentence comes from statutory and constitutional

provisions.” Id. (citation omitted). Thus, without statutory or constitutional

authorization, a circuit court is without power to act. Additionally, “[t]his Court

reviews ‘issues of statutory interpretation de novo.’” State v. Biteler, 2025 S.D. 73,

¶ 12, 29 N.W.3d 894, 897 (quoting State v. Long Soldier, 2023 S.D. 37, ¶ 11, 994

N.W.2d 212, 217).

[¶18.] Before reaching the merits, we briefly address the proceedings in the

circuit court and our appellate jurisdiction. Under SDCL 23A-31-1, the circuit court

may “correct an illegal sentence” or “correct a sentence imposed in an illegal

manner[.]” A court’s decision to suspend the imposition or execution of a sentence is

subject to statutory limitation. See S.D. Const. art. V, § 5 (“Imposition or execution

of a sentence may be suspended by the court empowered to impose the sentence

unless otherwise provided by law.” (emphasis added)). We have held that when a

court is without statutory “power or authority to suspend a prior offender’s sentence

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. . . the purported suspension order [is] void.” State v. Griffee, 331 N.W.2d 576, 578

(S.D. 1983) (citing State ex rel. Grant v. Jameson, 17 N.W.2d 714, 714 (S.D. 1945)).2

For the reasons discussed below, the circuit court’s order suspending the imposition

of sentence in this instance was entered without statutory authority. Although the

Legislature has not defined the phrase “illegal sentence” as used in SDCL 23A-31-1,

a sentence imposed without statutory authority, even when it purports to suspend

the imposition of sentence, falls within the meaning of an “illegal sentence” under

the statute. See State v. Copenhaver, 844 N.W.2d 442, 447 (Iowa 2014) (citation

omitted) (“An illegal sentence is a sentence that is not permitted by statute.”).

[¶19.] The circuit court’s order denied the State’s motion to correct an illegal

sentence. This Court has discretionary authority to review such an order. See

SDCL 23A-32-22 (emphasis added) (“An appeal . . . may be taken . . . from an order

granting or denying a motion to correct an illegal sentence or an order granting or

denying a motion to correct a sentence imposed in an illegal manner.”). An appeal

under SDCL 23A-32-22 “is not a matter of right but of sound judicial discretion.”

We acquired jurisdiction upon granting the State’s request for a discretionary

appeal.

a. Whether the circuit court violates the separation-of-powers
doctrine when it modifies its sentence after imposing a
penitentiary sentence.

[¶20.] The State’s separation-of-powers argument is based on the principles

discussed in this Court’s decision in State v. Orr, 2015 S.D. 89, 871 N.W.2d 834, and

2. Griffee specifically examined SDCL 23A-27-13 and determined the sentence
was not authorized as a suspended imposition of sentence under the statute.
Id. at 577.

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associated precedents. The State claims that “[o]nce a defendant is sentenced to

prison, the circuit court loses jurisdiction, and the defendant falls under the control

of the executive branch.” Applying that theory here, the State argues that

“[b]ecause Pickner was on Parole at the time the circuit court vacated its finding of

guilt and entered a suspended imposition of sentence, it did not have jurisdiction to

do so; he was under supervision of the executive branch.”

[¶21.] The primary concern in Orr was the prevention of simultaneous

supervision of a criminal defendant by both the executive and judicial branches. In

Orr, the circuit court sentenced a criminal defendant to serve a term in the

penitentiary in addition to a probationary term. 2015 S.D. 89, ¶ 2, 871 N.W.2d at

835. The defendant appealed, claiming the circuit court “exceeded its authority by

imposing sentences that subject him to simultaneous supervision by the executive

and legislative branches.” Id.

[¶22.] This Court reversed and remanded for resentencing, explaining that

“[p]robationers are subject to the supervision of our judicial branch.” Id. ¶ 5, 871

N.W.2d at 836. “In contrast to those placed on probation, inmates of the state

penitentiary are under the control of the executive branch.” Id. ¶ 6, 871 N.W.2d at

836. This Court examined SDCL chapter 23A-27 and determined that “within these

statutes there is no scenario where a defendant is placed under the simultaneous

supervision of two branches of government.” Id. ¶ 7, 871 N.W.2d at 837; see also

State v. Hurst, 507 N.W.2d 918, 923 (S.D. 1993) (alterations in original) (citation

omitted) (“[O]nce an offender is within the jurisdiction of the executive branch of

government, the judicial branch—the circuit court—loses jurisdiction and

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control[.]”). “These statutes carry out the constitutional doctrine of separation of

powers.” Orr, 2015 S.D. 89, ¶ 8, 871 N.W.2d at 837. Orr was not the first time this

Court had recognized the principle that a criminal defendant may not be subject to

the simultaneous supervision of both the executive and judicial branches. See State

v. Moon, 514 N.W.2d 705, 706 (S.D. 1994) (per curiam); State v. McConnell, 495

N.W.2d 658, 658 (S.D. 1993), State v. Wooley, 461 N.W.2d 117, 121 (S.D. 1990).

[¶23.] While the State’s argument is premised on the language used by this

Court in Orr, the State’s understanding of that language is broader than the Court

intended. The State contends that any time a circuit court sentences a defendant to

the penitentiary, the circuit court forever relinquishes jurisdiction over all matters

related to the defendant. However, that result is not consistent with statutory law

or this Court’s precedent. Most specifically, both SDCL 23A-27-19 and SDCL 23A-

31-1 explicitly grant the circuit court continuing jurisdiction after sentencing for the

purpose of reducing or suspending a criminal defendant’s sentence in certain

circumstances.

[¶24.] This Court recognized this distinction in Orr by noting that the dual

supervision concerns identified in that case did not “affect the court’s limited, two-

year window to reduce a sentence. In those circumstances the court is not

infringing on the executive’s authority to supervise inmates in the penitentiary.”

2015 S.D. 89, ¶ 11, 871 N.W.2d at 838 (internal citations omitted).

[¶25.] This Court’s precedent, SDCL 23A-27-19, and SDCL 23A-31-1

authorize the circuit court to reduce or suspend a defendant’s sentence even if the

defendant is sentenced to incarceration under the DOC’s supervision. The circuit

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court’s order removed Pickner from the supervision of the DOC and placed him

solely under the supervision of the judiciary. Because there was no period of dual

supervision, the circuit court’s actions do not raise the separation-of-powers

concerns addressed in Orr.

[¶26.] Although Orr and the separation of powers doctrine do not preclude

the circuit court from modifying its sentence, that does not resolve the question of

whether the circuit court had authority under the relevant statutes to grant the

type of relief it ordered in this case.

b. Whether SDCL 23A-27-19 and SDCL 23A-31-1 authorized
the circuit court to vacate a conviction to grant Pickner a
suspended imposition of sentence.

[¶27.] In its motion to correct Pickner’s sentence, the State argued that the

circuit court “entered an Order suspending imposition of sentence in violation of the

statute and outside of the authority granted to it by the Legislature, thereby

imposing an illegal sentence or imposing a sentence in an illegal manner.” The

thrust of the State’s argument is that the relevant statutes do not authorize the

circuit court to vacate a judgment of conviction to enter a suspended imposition of

sentence. In the State’s view, if the circuit court desires to suspend imposition of a

sentence, it must do so when a defendant is initially sentenced.

[¶28.] “[W]hether a defendant’s sentence exceeds the . . . authority of the

court is reviewed de novo.” Humpal, 2017 S.D. 82, ¶ 6, 905 N.W.2d at 119 (citation

omitted). Additionally, “[t]his Court reviews ‘issues of statutory interpretation de

novo.’” Biteler, 2025 S.D. 73, ¶ 12, 29 N.W.3d at 897 (quoting Long Soldier, 2023

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S.D. 37, ¶ 11, 994 N.W.2d at 217). “Under this standard, no deference is given to

the circuit court’s interpretation of [SDCL 23A-27-19 and SDCL 23A-31-1].”3 Id.

[¶29.] “The purpose of statutory interpretation is to discover legislative

intent.” State v. Bettelyoun, 2022 S.D. 14, ¶ 24, 972 N.W.2d 124, 131 (quoting State

v. Bryant, 2020 S.D. 49, ¶ 20, 948 N.W.2d 333, 338). “[T]he starting point when

interpreting a statute must always be the language itself.” Id. (alteration in

original) (citation omitted). “When the language in a statute is clear, certain and

unambiguous, there is no reason for construction, and the Court’s only function is to

declare the meaning of the statute as clearly expressed.” State v. Armstrong, 2020

S.D. 6, ¶ 16, 939 N.W.2d 9, 13 (quoting State v. Myrl & Roy’s Paving, Inc., 2004 S.D.

98, ¶ 6, 686 N.W.2d 651, 654). “[Because] statutes must be construed according to

their intent, the intent must be determined from the statute as a whole, as well as

enactments relating to the same subject.” State v. Turner, 2025 S.D. 13, ¶ 45, 18

N.W.3d 673, 688 (alteration in original) (quoting In re Estate of Ricard, 2014 S.D.

54, ¶ 8, 851 N.W.2d 753, 756).4

3. This Court has held that the circuit court has discretionary authority under
SDCL 23A-31-1. State v. Pentecost, 2015 S.D. 71, ¶ 8, 868 N.W.2d 590, 593.
When the circuit court’s decision in a matter is discretionary, this Court
applies the abuse-of-discretion standard of review. Although this Court has
not clearly announced the applicable standard of review for decisions under
SDCL 23A-27-19, it has explained more generally that “courts have broad
discretion in fashioning an appropriate sentence.” State v. Ross, 2018 S.D.
59, ¶ 36, 916 N.W.2d 141, 151. Nevertheless, the appropriate standard of
review in this appeal is the de novo standard because the question is whether
either of those statutes authorizes the circuit court to modify a sentence in
the way this circuit court did.

4. The events of this case occurred before the enactment of SDCL 23A-27-13.3 in
2025. 2025 S.D. Sess. Laws ch. 102 § 2. That statute provides, “[n]o person
(continued . . .)
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[¶30.] A circuit court has the authority to grant a suspended imposition of

sentence as the result of SDCL 23A-27-13, which provides:

Except as provided in § 23A-27-13.3, upon receiving a verdict or
plea of guilty for a felony not punishable by death or life
imprisonment by a person never before convicted of a crime that
at the time of conviction constitutes a felony in this state, a
court having jurisdiction of the defendant, if satisfied that the
ends of justice and the best interest of the public as well as the
defendant will be served thereby, may, without entering a
judgment of guilt, and with the consent of the defendant,
suspend the imposition of sentence and place the defendant on
probation for a period and upon any terms and conditions as the
court may deem best. No person who has previously been
granted, whether in this state or any other, a suspended
imposition of sentence for a felony, is eligible to be granted a
second suspended imposition of sentence for a felony. A court
may revoke the suspension at any time during the probationary
period and impose and execute sentence without diminishment
or credit for any of the probationary period.

(Emphasis added.)

[¶31.] Under the plain language of the statute, the circuit court does not

enter a judgment of guilt when it grants a suspended imposition of sentence.

Moreover, it may grant a suspended imposition even when a jury has found the

defendant guilty. However, the jury’s finding of guilt remains while the defendant

completes their probationary requirements. This is because the circuit court will

revoke the suspended imposition and impose a sentence if the defendant is

unsuccessful in his probationary efforts. The circuit court cannot impose a sentence

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(. . . continued)
who has been convicted of, or pled guilty or nolo contendere to, rape under
subdivision 22-22-1(2) or (3) may be granted a suspended imposition of
sentence under § 23A-27-13.” Pickner was convicted of third-degree rape
under SDCL 22-22-1(3). Neither party has advanced any argument that this
statute is applicable to this case. Consequently, we are not called upon to
address whether the statute operates retroactively.

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without a finding of guilt. See also SDCL 23A-27-17 (emphasis added) (upon

completion of probation, “a court shall order that all official records . . . be sealed

along with all records relating to the person’s arrest, indictment or information,

trial, finding of guilt, and dismissal and discharge.”).

[¶32.] Under SDCL 23A-27-19, a circuit court has the authority to “suspend[]

any sentence for a period of two years from the effective date of the judgment of

conviction[.]”5 Circuit courts have additional authority to “reduce a sentence” under

SDCL 23A-31-1, which provides in relevant part, “A court may reduce a sentence:

(1) Within two years after the sentence is imposed[.]”6 The question presented by

5. In full, SDCL 23A-27-19 reads:

The sentencing court retains jurisdiction for the purpose of
suspending any sentence for a period of two years from the
effective date of the judgment of conviction, notwithstanding the
fact that the time for an appeal from such judgment is limited to
a short period of time. The court shall notify the attorney who
prosecuted the person or the successor in office of the
prosecuting attorney at least fourteen days in advance of the
suspension. Notice shall be provided to any victim by the
prosecuting attorney or the successor in office pursuant to the
provisions of § 23A-27-1.2. Any person whose sentence is
suspended pursuant to this section is under the supervision of
the Board of Pardons and Paroles, except as provided in § 23A-
27-18.2. The board is charged with the responsibility for
enforcing the conditions imposed by the sentencing judge, and
the board retains jurisdiction to revoke the suspended portion of
the sentence for violation of the terms of parole or the terms of
suspension.

6. In full, SDCL 23A-31-1 reads:

A court may correct an illegal sentence at any time and may
correct a sentence imposed in an illegal manner within the time
provided in this section for the reduction of sentence. A court
may reduce a sentence:
(continued . . .)
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this case is whether either of those statutes authorizes a circuit court to vacate a

criminal conviction.

[¶33.] The statutory scheme establishing suspended imposition of sentence

contemplates that the court will not enter a finding of guilt. When it imposed its

original sentence, the circuit court accepted the jury’s finding that Pickner was

guilty of rape and entered a judgment of conviction. Consequently, to grant a

suspended imposition of sentence, the circuit court was required to vacate its prior

judgment of conviction. The circuit court recognized this situation and attempted to

address it in its order by explaining that “[i]f necessary to achieve the reduction of

sentence as stated herein, the previous judgments are vacated, and the court is

granting or modifying or reducing” Pickner’s original sentence. However, the circuit

court did not address the source of its authority to vacate a judgment of conviction

to grant a suspended imposition of sentence.

[¶34.] The plain language of SDCL 23A-31-1 does not allow the circuit court

to vacate a judgment of conviction and retroactively impose a categorically different

sentence under the guise of “reducing” the original sentence. The plain meaning of

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(. . . continued)
(1) Within two years after the sentence is imposed;
(2) Within one hundred twenty days after receipt by the court
of a remittitur issued upon affirmance of the judgment or
dismissal of the appeal; or
(3) Within one hundred twenty days after entry of any order
or judgment of the Supreme Court denying review of, or
having the effect of upholding, a judgment of conviction;
whichever is later. A court may also reduce a sentence upon
revocation of probation or suspension of sentence as provided
by law. The remedies provided by this section are not a
substitute for nor do they affect any remedies incident to
post-conviction proceedings.

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“reduce” means “to diminish in size, amount, extent, or number” or “to make

shorter[.]” Reduce, Merriam-Webster, https://www.merriam-

webster.com/dictionary/reduce (last visited May 11, 2026). Inherent in the phrase

“reduce a sentence[,]” as used in SDCL 23A-31-1, is the idea that the originally

imposed sentence remains, but some aspect (like duration) is diminished. The

circuit court did not simply reduce Pickner’s sentence. Instead, it vacated its prior

judgment of conviction and imposed a categorically different form of consequence: a

suspended imposition of sentence with its attendant probationary period. The

circuit court lacked this authority under the plain language of SDCL 23A-31-1.

[¶35.] Similarly, the operative language in SDCL 23A-27-19 is the phrase “for

the purpose of suspending any sentence[.]” While this statute clearly grants the

circuit court “jurisdiction for the purpose of suspending any sentence[,]” id., it does

not authorize the circuit court to vacate a valid judgment of conviction. If the

Legislature had intended to authorize the circuit court to vacate a judgment of

conviction to achieve its sentencing objectives under SDCL 23A-27-19, it could have

indicated that intention in the text of the statute.

[¶36.] Neither SDCL 23A-27-19 nor SDCL 23A-31-1 authorize the circuit

court to grant a suspended imposition of sentence after entering a judgment of

conviction. Because the circuit court exceeded its authority when it granted a form

of relief that is not available under SDCL 23A-27-19 and SDCL 23A-31-1, we

reverse the circuit court’s order suspending the imposition of Pickner’s sentence.

[¶37.] We are fully aware that prosecutors have routinely asked circuit courts

to delay entering a suspended imposition of sentence to allow the defendant to

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“prove themselves” or “earn” that opportunity. However, such requests are not

consistent with the statutory authority granted to circuit courts. Under the

statutory authority presently in effect, the circuit court must determine, at the time

of sentencing, whether “the ends of justice and the best interest of the public as well

as the defendant will be served” by a suspended imposition of sentence. SDCL 23A-

27-13.

[¶38.] JENSEN, Chief Justice, and GUSINSKY, Justice, concur.

[¶39.] SALTER, Justice, and MAMMENGA, Circuit Court Judge, concur in

part and dissent in part.

[¶40.] MAMMENGA, Circuit Court Judge, sitting for DEVANEY, Justice,

who deemed herself disqualified and did not participate.

SALTER, Justice (concurring in part and dissenting in part).

[¶41.] A suspended imposition of sentence is not a sentence at all, period; it’s

not an illegal one, it’s not an illegally imposed one, and it’s not a reduced one. At

the risk of sounding too glib, that’s the whole point. A court’s decision to not impose

a sentence prevents the entry of a judgment of conviction, which, in turn, spares an

accused the stigma or collateral consequences of a conviction. See SDCL 23A-27-13

(authorizing a court to suspend the imposition of sentence “without entering a

judgment of guilt” for a person “never before convicted of a . . . felony” (emphasis

added)).

[¶42.] For this reason, the circuit court here did not “reduce” Pickner’s

sentence under SDCL 23A-31-1 when it vacated his final and unchallenged

judgment of conviction in order to then suspend the imposition of the sentence it

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had already imposed. Instead, the court eliminated the sentence entirely and, with

it, Pickner’s rape conviction—something not contemplated by SDCL 23A-31-1,

which permits only correcting or reducing an actual sentence. Nor was the court’s

decision authorized under SDCL 23A-27-19, which simply allows the court to

suspend an existing sentence.

[¶43.] On this point, I agree with the Court’s conclusion that the circuit court

lacked the authority to do what it did. But how precisely we get to the merits of

that determination given the current procedural posture is another matter

altogether, and one on which, I’m afraid, I part company with my colleagues.

[¶44.] In my view, the circuit court’s order at issue in this appeal doesn’t

implicate a “sentence correction” any more than its earlier order purported to be a

“sentence reduction.” Each order rests on the same flawed SDCL 23A-31-1

premise—i.e., that, initially, Pickner’s sentence was being reduced or, now, that the

State is attempting to correct a sentence. There is no longer a sentence to correct,

and the one that was imposed originally was perfectly lawful; the State is now

trying to restore a final conviction, but SDCL 23A-31-1 doesn’t permit that. And

the fact that we granted the State’s petition for intermediate appeal does nothing to

make SDCL 23A-31-1 a plausible theory for relief. But it does illustrate the delicate

position in which the Court finds itself—faced with an unauthorized order vacating

a valid rape conviction with seemingly no way to correct it; that is, until the Court

created one.

[¶45.] It didn’t have to be this way, however. When we dismissed the State’s

first appeal, we did so by a narrow 3-2 vote. In a brief dissenting comment on the

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order of dismissal, I suggested that there was no principled difference between

vacating a final judgment of conviction, as the circuit court did, and dismissing an

indictment or granting a post-verdict judgment of acquittal, both of which would be

appealable by the State as a matter of right under SDCL 23A-32-4. And the fact

that the statute doesn’t expressly authorize an appeal from an order vacating an

otherwise unchallenged final conviction most likely reflects the reality that the

Legislature would not envision a court exceeding its authority in this way.

[¶46.] Under the circumstances, I believe we should recall and vacate the

order dismissing the State’s earlier direct appeal as having been improvidently

entered. See Lesmeister v. Dewey County, 65 N.W.2d 136, 136 (S.D. 1954)

(recognizing the ability to recall the remittitur “in case of fraud, mistake or

inadvertence”). Then, operating within the original appeal, we can properly

adjudicate the merits of this case. By not correcting our earlier error in this way

and deciding the case in its current posture, we risk endorsing an incorrect view of

what constitutes a criminal “sentence” to justify an otherwise correct result.

[¶47.] MAMMENGA, Circuit Court Judge, joins this writing.

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