(concurring specialty)-
There is no question Hafner received a more lenient sentence from the trial court after filing his request for sentence modification. The precedent of this court is that conditions of probation or suspended sentences should be reasonable and should not require excessive payments. State v. Ripperger, 284 N.W.2d 877 (S.D.1979); White Eagle v. State, 280 N.W.2d 659 (S.D.1979).
The trial court’s Amended Sentence requires Hafner to pay $5,000.00 to the Board of County Commissioners of Codington County to be used as compensation for the Codington County victim/assistance assistant. This is in addition to Hafner being responsible for reimbursing the victim for past and future counseling services. The record does not disclose when this $5,000.00 payment is due. Is it payable in installments? Does it accrue interest? How did the trial court determine Hafner had the ability to pay this amount? Should payments for counseling the victim take precedent over the amount owed to Codington County? And, what happens if Hafner does not have the ability to make these payments? It certainly appears that Hafner received grace from the trial court but has he been placed in a position where the opportunity to fail is almost a certainty. This record presents too many questions with no answers.
Admittedly this is not restitution, but just like restitution, the $5,000.00 payment is a condition of the amended suspended sentence. In ordering restitution, trial courts look to see if a defendant is “reasonably able to make” restitution. SDCL 23A-28-1 and - 4. Also SDCL 23A-28-5 provides for a plan of restitution which takes into consideration such things as the defendant’s employment circumstances, the defendant’s financial condition, and whether ordering restitution will aid the defendant’s rehabilitation. Rather than coming out of the clear blue, the trial court should have considered these conditions when ordering the $5,000.00 payment to a non-victim.
The problem in this case is that the exces-siveness of this $5,000.00 payment should have been addressed on direct appeal since habeas corpus cannot be used as a substitute for direct appeal. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Whether Hafner has been deprived of basic constitutional rights can be reviewed if and when Hafner is incarcerated for failing to comply with this condition/restitution.
I am authorized to state that Justice HENDERSON joins in this special concurrence.