(dissenting).
Over 20 years ago, Marnette’s felony conviction was lawfully vacated by a federal court in Wyoming. Today, this Court casts aside that foreign judgment. Therefore, I dissent.
A presentence investigation in this case revealed that Marnette had been convicted of a federal offense in 1972: the unlawful use of a credit card, stolen by another man, when *40Marnette was 20 years old. See United States v. Lynn, 461 F.2d 759 (10th Cir.1972). Marnette served 30 days in a Federal Reformatory and was discharged from probation for good behavior.
On October 26, 1973, Judge Ewing T. Kerr, of the United States District Court for the District of Wyoming, filed a Certificate of Vacation of Conviction setting aside Mar-nette’s 1971 federal felony conviction. In-the Tenth Circuit, which includes Wyoming, “such ‘setting aside’ of the conviction means that the conviction will be expunged from the defendant’s records.” Watts v. Hadden, 651 F.2d 1354, 1373 n. 3 (10th Cir.1981), citing United States v. Bronson, 449 F.2d 302 (10th Cir.1971), cert. denied, 405 U.S. 994, 92 S.Ct. 1268, 31 L.Ed.2d 463 (1972). Although such was the intent, this conviction somehow remained on Marnette’s FBI “rap sheet,” and the trial court considered it for purposes of suspended imposition of sentence. See SDCL 23A-27-13. Based on a split of authorities, this Court relies on United States v. McMains, 540 F.2d 387 (8th Cir.1976), and holds that the conviction, though set aside under 18 U.S.C. 5021 and expunged, is not expunged from the record.
Marnette’s conviction and subsequent ex-punction did not take place under the jurisdiction of the Eighth Circuit or South Dakota. Rather, Marnette’s conviction in federal court, District of Wyoming was vacated under the authority of the Tenth Circuit. Hence, the conviction was lawfully expunged by Judge Kerr per Tenth Circuit decisional law. Under U.S. Const, art. IV, § 1, “Full faith and credit shall be given in each and every state to the public acts, records, and judicial proceedings of every other state.” This includes the federal courts of the United States. SDCL 15-16A-1. Therefore, such an order must be honored by this Court. “Foreign judgments are accorded this deference to avoid offending the Full Faith and Credit Clause of the United States Constitution.” Wooster v. Wooster, 399 N.W.2d 330, 333 (S.D.1987). The facts are analogous to recognition of a foreign divorce decree:
Nor do we reach here the question as to the power of North Carolina to refuse full faith and credit to Nevada divorce decrees because, contrary to the findings of the Nevada court, North Carolina finds that no bona fide domicil was acquired in Nevada. In the second place, the question as to what is a permissible limitation on the full faith and credit clause does not involve a decision on our part as to which state policy is the more desirable one.
Williams v. North Carolina, 317 U.S. 287, 302-03, 63 S.Ct. 207, 215, 87 L.Ed. 279 (1942).
This Court may have no desire to permit expunction under the Youth Corrections Act; and trial courts in South Dakota have every right to consider prior felonies under SDCL 23A-27-13. However, because this Court finds Eighth Circuit decisions to be more desirable gives us no right or authority to ignore the ruling of another jurisdiction. In fact, it appears that we are overruling Watts v. Hadden, supra.
It was error for the trial court to consider a conviction which, in effect, did not exist. It is an even greater error for this Court to revive a conviction lawfully vacated and expunged in another jurisdiction.
The fact that the conviction erroneously remained on the “rap sheet” is irrelevant. Prior to sentencing, the trial court received a copy of Judge Kerr’s 1973 order stating that Marnette’s conviction “has been set aside pursuant to the provisions of Section 5021(b), Title 18, U.S. Code.” As noted above, the Tenth Circuit expunges such matters from the defendant’s records. Watts, 651 F.2d at 1373. Additionally, a letter, dated March 19, 1993, from the Supervising U.S. Probation Officer in Wyoming, confirming that the conviction should have been removed from Mar-nette’s record, stated that the probation officer “was able to verify that Mr. Marnette received the benefit of the Youth Corrections Act and the conviction should no longer appear on his FBI Fingerprint Record.” According to said letter, notice was sent to the FBI that the conviction should be removed. The trial court knew that the prior felony should be non-existent in the eyes of the law.
Therefore, this “set aside conviction” should not now be deemed a “conviction” for purposes of SDCL 23A-27-13. In my opin*41ion, the latter statute should be construed to further the Legislature’s intent. It appears patent to me that a record of conviction is required to limit a trial court’s discretion under SDCL 23A-27-13. Marnette’s prior felony conviction simply does not exist. This case should be reversed and remanded to the trial court for further proceedings.