(dissenting).
RATIONALE ONE
For the reasons expressed in my dissenting opinion in State v. Hotter, 340 N.W.2d 691, 694-95 (S.D.1983), and reiterated herein, I would reverse. I point out that the same sentencing judge in Hotter sentenced in this case. In Hotter, appellant was sentenced on May 4, 1982.
The circuit courts of South Dakota do not have the inherent power to suspend imposition or execution of sentences. State v. Marshall, 247 N.W.2d 484 (S.D.1976). It is a power conferred by Article V, § 5, of the South Dakota Constitution and is conferred “unless otherwise provided by law.” As stated in my dissent in Hotter, 340 N.W.2d at 694: “This latter clause obviously refers to a state statute.” In Hotter, there was no statutory authority existing for incarceration in the penitentiary as part of the suspended sentence when he was sentenced. Neither does it exist in this case.
On April 7, 1980, the date of appellant’s sentencing, SDCL 23A-27-18.1 was the statute limiting the circuit court’s power to suspend execution of sentences and it is indeed the troublesome provision for the majority because nowhere does its language permit imprisonment in the State Penitentiary as a condition of suspension. The only form of incarceration expressly permitted by the statute, as a condition of a suspended sentence (existing at that time), was a maximum of 60 days confinement in a county jail.* A sentence of six years in the South Dakota State Penitentiary with the last two years suspended was thus an illegal sentence and I thus take the position that the trial court erred in its decision below when it reviewed this sentence.
My reading is not a narrow reading of SDCL 23A-27-18.1 for that is exactly what the statute says. It provided, at the time of Schmit’s sentencing, that incarceration could be in a county jail for up to 60 days as a condition of suspended sentence. Conversely, to read the statute as permitting that which the majority advocates is to read into the statute words which are not contained in print. Clearly, in the absence *518of authority, the trial court did not have the power to impose a suspended sentence to be served after a term of years in the State Penitentiary. Schmit received an invalid sentence.
RATIONALE TWO
Factually, we must first build our house of thought. Our foundation is the factual scenario. Appellant was sentenced on April 7, 1980, to six years in the State Penitentiary. Specifically ordered, by the trial court, was “[t]hat two (2) years of the sentence be suspended not to commence until after the four (f) year period_” (Emphasis supplied.) And this was upon conditions that appellant make restitution and pay costs and fees. Continuing to build our house, the trial judge stated at the hearing: “[T]he suspended portion does not commence until you have completed the four year sentence, then you hit the two year suspended sentence.” Here are the walls for our rationale: The sentence of the court further provided: “That the suspended portion of the sentence be served under the supervision of the State Board of Charities and Corrections.” A parole officer filed a violation report and an affidavit asking the circuit court to revoke appellant’s two-year suspended sentence. Over vigorous protest by appellant’s counsel, the trial judge revoked appellant’s parole and suspended sentence. The roof on our house is provided by statutes in this state which essentially provide that it is the executive branch, not the judicial branch, which is charged with making adjustments to the defendant’s liberties via the Board of Pardons and Paroles through the Office of Charities and Corrections. For the judicial branch to dip into the executive branch and reobtain jurisdiction of appellant is a violation of the separation of powers doctrine. See, specifically, the latter part of SDCL 23A-27-19, which provides:
A person whose sentence is suspended pursuant to this section is under the supervision of the board of charities and corrections, except as provided in § 23A-27-18.2. The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge.
For once an individual is sentenced to the State Penitentiary for a period of years, he is eligible for release under two circumstances: (1) by the direction of the Board of Charities and Corrections, SDCL ch. 24-13, et seq., or (2) within one year after his original sentence upon modification of the sentence by the circuit court pursuant to SDCL 23A-27-19. Obviously, the trial judge did not act under the one-year limitation set forth in SDCL 23A-27-19. Therefore, the early release of Schmit from the State Penitentiary was. determined by the Board of Pardons and Paroles. There simply is no statutory authority in this state which permits circuit courts to exercise the authority of the Board of Pardons and Paroles and to suspend a portion of Schmit’s sentence after serving two years in the State Penitentiary. As one reads the sentencing judge’s sentence, the intention seems clear that Schmit was to serve four years in the State Penitentiary and two years was to be suspended by some creative thought process of the sentencing judge wherein and whereby he turned his court into the Board of Pardons and Paroles. The Board of Pardons and Paroles was deeply involved in Schmit’s case and his release, his fate, and his liberty was under its control. Supervision of parolees is the responsibility of the Office of Correctional Services under the control of the Board of Pardons and Paroles. SDCL 24-15-14. An agent of the Parole Board violated him. I maintain that he took his documents to the wrong branch of government. He should have made his application to the Board of Pardons and Paroles who had jurisdiction of Schmit’s case and for whom he toiled. SDCL 24-15-24 mandates that the Board of Pardons and Paroles may “revoke the parole and reinstate the terms of the original sentence and conviction.” Only that Board is empowered to revoke Schmit’s freedom. Completing my house of thought with windows, doors, and insulation, I refer to State v. Griffee, 331 N.W.2d 576 (S.D.1983), where we condemned creative sentencing which exceed*519ed statutory boundaries. In conclusion, the sentencing court not only exceeded its specific statutory authority when it sentenced but it also violated the executive branch of government by using the judicial branch of government; and, moreover, it traversed, without authority, the legislative branch by attempting to combine empowering statutes to arrive at a sentence authorized by none of them.
I am authorized to state that Chief Justice FOSHEIM joins in this dissent on Rationale Two.
This was changed in 1983 by an amendment which not only permits imprisonment in the county jail for a period not to exceed 180 days but also imprisonment in the State Penitentiary for a specific period not to exceed 60 days. The amended statute does not pertain to this case.