Habitual Offender FAQ

A habitual offender information is a legal filing in which the State alleges a defendant has been convicted of one or more prior felonies to enhance, or increase, the maximum penalty for the current felony the defendant is accused of committing.  If a defendant has been convicted of one or two prior felonies, then the habitual offender information increases the maximum penalty for the current offense by one level.  (See SDCL 22-7-7). 

If a defendant has been convicted of three or more prior felonies, none of which are classified as violent offenses, then the habitual offender information will increase the maximum penalty for the current felony charge by two levels.  (See SDCL 22-7-8).   

If the defendant has three or more prior felony convictions, and one or more of the prior felonies are classified as violent, then the habitual offender information will increase the maximum penalty for the current felony offense up to a maximum of life in prison regardless of the felony charge the defendant is currently accused of committing.  (See SDCL 22-7-8.1). 

Violent crimes include the following: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact, felony child abuse, or any other felony in which the perpetrator used force, was armed with a weapon, or used an explosive device or destructive device.  (See SDCL 22-1-2(9)). 

The State cannot use a defendant’s prior convictions against him or her forever; in fact, the State cannot use a defendant’s prior felony convictions to enhance the maximum penalty for a new felony unless it has been less the 15 years since the defendant was released from custody, parole, or probation on the prior offense(s).  (See SDCL 22-7-9).