Presumptive Probation FAQ
Sioux Falls, South Dakota
What is presumptive probation?
Presumptive probation (See SDCL 22-6-11) refers to a concept that for certain felony offenses it is presumed that the defendant’s sentence shall consist of probation, county jail time, and a suspended penitentiary sentence instead of being immediately sent to the penitentiary. When a person is placed on probation as a result of presumptive probation, they could still be required to serve up to 180 days in the county jail and comply with other probationary conditions. If a person violates any of those probation conditions, the State can file a motion to revoke their probation.
If the Court grants the motion the defendant’s suspended penitentiary sentence, which was originally suspended when the defendant was placed on probation, could be imposed due to the violation. The sentencing Court may impose a non-probationary sentence for convictions that are eligible for presumptive probation if the court determines that aggravating circumstances exist and the defendant poses a significant risk to the public requiring a departure from presumptive probation.
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Presumptive Probation Limitations
Presumptive probation applies to all Class 5 or Class 6 felonies, EXCEPT the following:
second degree escape (SDCL 22-11A-2.1)
possession of a firearm by one with a prior violent or certain drug related offenses (SDCL 22-14-15)
felony simple assault (SDCL 22-18-1)
simple assault against a law enforcement officer (SDCL 22-18-1.05)
simple assault of a correctional officer by inmate (SDCL 22-18-26)
assault by adult prisoner in county jail by intentionally causing contact with bodily fluids (SDCL 22-18-29)
felony stalking (SDCL 22-19-1)
felony violation of a protection or no contact order (SDCL 22-19A-2, 22-19A-3, 22-19A-7 & 22-19A-16)
incest (SDCL 22-22A-2)
removal of a minor from state for adoptions without parental consent (SDCL 22-22A-4)
possessing, manufacturing, or distributing child pornography (SDCL 22-24A-3)
sexual exploitation of a minor (SDCL 22-22-24.3)
felony indecent exposure (SDCL 22-24-1.2)
sex offender registry violations (SDCL 22-24B-2, 22-24B-12, 22-24B-12.1 & 22-24B-23)
public official’s use of public funds for official’s financial benefit as theft (SDCL 22-30A-46)
felony distribution or possession with intent to distribute marijuana (SDCL 22-42-7)
possession of contraband by inmates (SDCL 22-2-14)
hit and run resulting in death or injury as felony (SDCL 32-34-5)
or if a defendant has been placed on probation previously for a felony crime of violence (SDCL 23A-27-12 & 22-1-2(9))
