In Re the Revocation of the Parole of Williams

MILLER, Chief Justice.

Willie Williams III (Williams) appeals a circuit court judgment affirming an order of the Board of Pardons and Paroles revoking his parole. We affirm the circuit court judgment.

FACTS

Williams was charged with first degree rape in October 1981. He was arrested and placed in jail on October 14, 1981. Williams was convicted of first degree rape in December 1981 and was sentenced to fifteen years in the state penitentiary.

SDCL 24-5-1 provides that inmates are entitled to deduct specified amounts of time for each year of “good conduct.” Up to six years of time could be deducted from Williams’ sentence if he maintained “good conduct” while serving his sentence. Consequently, Williams’ tentative “good conduct” release date was October 14, 1990.

On December 21, 1984, Williams was paroled from the 1981 rape sentence. Williams signed the standard parole “Agreement” which provided, in part: “In the event I am returned to the institution, and my parole is revoked, I understand that I may lose any or all of my Good Time.” Under his parole agreement, Williams was allowed to move back to his home state of South Carolina.

On August 21, 1987, Williams was indicted and convicted of “Fraudulent Checks” in South Carolina. He was sentenced to one year in prison but the sentence was suspended. On February 2, 1988, the South Dakota Board of Pardons and Paroles (hereinafter “the Board”) was informed of the South Carolina conviction and issued a warrant for the arrest of Williams. No parole revocation hearing was held at that time.

Meanwhile, in May 1988, Williams was charged with murder in South Carolina. He was again taken into custody by South Carolina officials and was tried and convicted of murder. Williams remained incarcerated in South Carolina during his appeal of the murder conviction. The murder conviction was reversed and remanded on January 7, 1991. Williams was held in custody pending retrial.

On February 26, 1991, the South Dakota State Penitentiary sent a computer message to the Charleston County Jail informing them that the Board had issued a warrant for the arrest of Williams. The message specifically stated “THIS IS A “NO BOND” SITUATION! ! ! !”

Williams was entitled to post bond in South Carolina pending his retrial on the murder charge. When Williams posted the requisite bond in South Carolina he was detained under the South Dakota warrant. Williams was returned to South Dakota on April 3, 1991.

*669Back in South Dakota, Williams was given notice that a parole revocation hearing would be held on April 26, 1991. During that parole revocation hearing, in response to direct questioning by the Board, Williams admitted that he had been convicted of “fraudulent checks” in South Carolina in 1987. The Board found that Williams had violated the terms of his parole and entered an order revoking Williams’ parole with the loss of six years good time credit.

Williams appealed the order revoking parole to the circuit court. The circuit court affirmed the decision of the Board. Williams appeals to this Court.

DECISION

The following chronology emphasizes the important dates which are relevant to this appeal.

1. Williams was convicted of rape in South Dakota in 1981.
2. Williams was paroled in December 1984.
8. Williams was convicted of “fraudulent checks” in South Carolina on August 21, 1987.
4. On February 2, 1988, the Board of Pardons and Paroles issued a warrant for Williams’ arrest for alleged parole violations.
5. Unless the running of Williams sentence was tolled by the issuance of the 1988 warrant, under the “good conduct” provisions of the South Dakota statutes, Williams’ sentence for the 1981 rape conviction was fully satisfied on October 14, 1990.
6. Williams was arrested in South Carolina under the 1988 warrant and was returned to South Dakota in early April 1991.
7. The Board of Pardons and Paroles held a hearing and entered an order revoking parole on April 26, 1991 based on the 1987 “fraudulent check” conviction.

WHETHER THE ISSUANCE OF AN ARREST WARRANT FOR AN ALLEGED PAROLE VIOLATION SUSPENDED THE RUNNING OF WILLIAMS’ PAROLE SUPERVISION TIME.

Williams argues that the Board had no authority to revoke his parole because he maintains his sentence had already been fully served. The Board contends that their February 2, 1988 warrant suspended the running of his parole supervision time. They rely on SDCL 24-15-21 which currently provides:

If the executive director of the board is satisfied that any provision of § 24-15-20 has been violated, the executive director may issue a warrant to the department of corrections, any law enforcement officer, or any parole agent, directing that the parolee named be arrested. Pursuant to the provisions of § 24-15-23 the parolee may be returned to the state penitentiary. Upon the issuance of the warrant, the running of the parole supervision time shall be suspended until the board has entered its final order on the revocation. The board shall credit the inmate with time spent in custody as a direct result of the parole violation, (emphasis added).

Thus, the statute currently in effect clearly specifies that the issuance of a warrant suspends the running of parole supervision time. Williams’ case presents a special problem because that provision in the current version of SDCL 24-15-21 was not enacted until 1986, five years after Williams was convicted and two years after he was paroled. The version of the statute in effect when Williams was convicted and paroled did not contain the sentence which suspends the running of parole supervision time upon the issuance of a parole violation arrest warrant.

Williams argues that the application of that 1986 version of the statute to him is a violation of the ex post facto prohibitions in the United States Constitution. Two elements must be present for a criminal or penal law to be considered ex post facto. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981) “[I]t *670must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Id. (footnotes omitted).

In this case SDCL 24-15-21 was not being applied retrospectively. Williams argues that the 1986 statute was being applied to his 1981 conviction or his 1984 parole. In reality, the 1986 statute was applied to his 1987 parole violation. SDCL 24-15-21, including the provision regarding the suspension of parole supervision time, was enacted and in effect before Williams was convicted of passing fraudulent checks in South Carolina. Thus the 1986 statute was not being applied to conduct which occurred before its enactment. There was no retrospective application and accordingly there is no valid ex post facto objection.

The issuance of the warrant in 1988 suspended the running of Williams’ parole supervision time. The Board had authority to revoke Williams’ parole.

WHETHER THE BOARD OF PARDONS AND PAROLES HAD AUTHORITY TO REDUCE WILLIAMS’ GOOD TIME CREDITS.

When Williams was convicted and sentenced the Board of Pardons and Paroles had no explicit statutory authority to reduce a parolee’s good time credits because of a parole violation. In 1983, SDCL 24-15-24 was amended to provide that if the Board determined a parole violation had occurred, “the board is authorized to order the reduction of time in full or in part for good conduct granted under § 24-5-1.”

Williams was paroled in 1984. As a condition of his parole he signed a parole agreement in which he acknowledged that if he violated parole his good time credits could be revoked. Williams was found to have violated his parole and all six years of his good time credit were revoked. Williams argues that the Board had no authority to revoke his good time credits absent the 1983 amendment of the statute. He argues that application of the statute was ex post facto.

The 1983 statute authorized the Board to reduce an inmate’s good time credits for parole violations. This 1983 statute was enacted and in effect when Williams was paroled in 1984. Moreover, Williams agreed in 1984 that the Board of Pardons and Paroles could revoke his good time credit if he violated parole. Again, there was no retrospective application of the 1983 statute.

We affirm the decision of the circuit court.

WUEST and SABERS, JJ., concur. HENDERSON and AMUNDSON, JJ., dissent.