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STATE OF SOUTH DAKOTA,
Plaintiff and Appellant,
v.
LARRY GULLICKSON

Defendant and Appellee.

[2003 SD 32]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Third Judicial Circuit
Kingsbury County, South Dakota

Hon. Ronald K Roehr, Judge

LAWRENCE E. LONG
Attorney General
RICHARD M. WILLIAMS
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff and appellant.

DAVID O. CARTER
Sioux Falls, South Dakota
Attorneys for defendant and appellee.


Considered on Briefs February 10, 2003
Opinion Filed 3/19/2003

#22472
GILBERTSON, Chief Justice

[¶1.] This appeal arises after the trial court concluded it did not have jurisdiction to hear the State’s motion to enforce court ordered restitution against Larry Gullickson (Gullickson). We reverse the circuit court’s order.
FACTS AND PROCEDURE

[¶2.] Gullickson was an attorney and tax preparer who served as the trustee for several trusts. In December of 1993, after an accountant for one of the estates uncovered a theft of money by Gullickson, a criminal investigation began. Ultimately, fourteen separate incidents of embezzlement were uncovered that involved eight different victims.
[¶3.] Gullickson entered into an agreement with the State in which he agreed to plead guilty to embezzlement of property received in trust, contrary to the provisions of SDCL 22-30A-10[1] and SDCL 22-30A-17.[2] A second count, forgery in violation of SDCL 22-39-36, was dismissed. As part of the plea agreement, Gullickson promised to make full restitution of $101,930.38 to his victims.
[¶4.] At his sentencing, Gullickson received a ten-year prison sentence and was ordered to make restitution. About a year later, Gullickson was granted a sentence modification that reduced his sentence from ten to eight years. The other terms of the original judgment, including restitution, remained unchanged.
[¶5.] After Gullickson was released from prison on May 18, 2000, he continued making restitution payments. However, he stopped making payments after December 5, 2000. At that time, he still owed over $40,000 in restitution. Therefore, on April 16, 2002, the State made a motion to the circuit court for an order to show cause as to why Gullickson should not continue making the court ordered restitution.
[¶ 6.] The day before the hearing, the circuit court, sua sponte, raised the issue of jurisdiction. After hearing the parties’ arguments on the jurisdictional issue, the circuit court entered its order that denied the State’s motion, deciding that it lacked jurisdiction to hear the merits of the case. The trial court found that once a defendant is sentenced to the executive branch of government, the judicial branch loses jurisdiction over the ability to collect restitution. The State brings this appeal, raising the following issue for our consideration:
Whether the circuit court has jurisdiction to enforce the restitution order.

STANDARD OF REVIEW
[¶ 7.] Because this appeal requires us to decide whether the circuit court has jurisdiction to hear the meritsof the case, our review is de novo. State v. Neitge, 2000 SD 37, ¶10, 607 NW2d 258, 260 (citations omitted).

ANALYSIS AND DECISION
[¶ 8.] It is the policy of this state that restitution is to be made by the violator to the victims of the criminal acts to the extent that the violator is reasonably able to do so. Pursuant to SDCL 23A-28-1:
It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities to the extent that the violator is reasonably able to do so. An order of restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.
[¶ 9.] The State brought its motion for an order to show cause pursuant to SDCL 23A-27-25.4. This statute provides:
If a defendant sentenced to pay a fine, costs or restitution, defaults in the timely payment thereof, the court may, upon its own motion or upon motion of the state's attorney, require the defendant to show cause why he should not be imprisoned or jailed for nonpayment. The court may issue a warrant of arrest, bench warrant or order to show cause for the defendant's appearance.
[¶ 10.] Furthermore, the State asserts that the circuit court has authority under SDCL 23A-27-25.5 to enforce the restitution order. This statute provides:
No defendant may be imprisoned or jailed for failure to pay a fine, costs and restitution or have his suspended prison or jail sentence revoked without a prior hearing. At the hearing, the defendant shall have the burden of proof to establish to the reasonable satisfaction of the magistrate or circuit judge that he did not willfully fail to pay the fine, costs or restitution or that he did make a bona fide effort to pay the fine, costs or restitution.
Failure by the defendant to make such a showing shall be grounds for being imprisoned or jailed. If the sentence provided for payment of fine, costs or
restitution only, the term of jail or imprisonment shall be no longer than the number of days equal to the total amount of the fine, costs and restitution imposed divided by twenty. For purposes of making this computation, any fraction of less than one day shall be dropped from the term of imprisonment. In no event may such imprisonment for failure to pay the fine, costs and restitution together with all other time served or to be served exceed the maximum allowed by statute.
If the defendant establishes nonpayment was not willful, or that he did make a bona fide effort to pay, he may not be imprisoned or jailed for nonpayment. The magistrate or circuit judge shall consider other alternatives which take into account the state's interest in punishment and deterrence.
The court shall make findings in its decision.
These statutes contain elements of both civil and criminal contempt. They allow the trial court broad latitude in fashioning a method of dealing with the issue of unpaid restitution.
[¶ 11.] It was Gullickson’s position before the trial court that under SDCL 23A-28-8, as it existed in 1995 at the time he received his sentence, the circuit court does not have the requisite jurisdiction to now enforce the order of restitution. SDCL 23A-28-8 was amended in 2001 so that it now provides:
Failure of the defendant to comply with § 23A-28-3 or to comply with the plan of restitution as approved or modified by the court constitutes a violation of the conditions of probation. Without limitation, the court may modify the plan of restitution or extend the period of time for restitution, regardless of whether the defendant is no longer on probation. If the defendant fails to make payment as ordered by the court, the defendant may be held in contempt of the court's order. (emphasis added.)
[¶ 12.] However, this statute, as it existed in 1978 and through the time of Gullickson’s crime and sentence, provided, “[t]he court may modify the plan of restitution or extend the period of time for restitution, but not beyond the maximum probationary period.

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