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, he or she could 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 his or her probation and 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 pose a significant risk to the public requiring a departure from presumptive probation. Presumptive probation applies to all Class 5 or Class 6 felonies, EXCEPT the following:
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