(dissenting).
For those reasons expressed in my dissents in State v. Holter, 340 N.W.2d 691, 694-95 (S.D.1983), and Application of Adams, 360 N.W.2d 513, 517 (S.D.1985), I dissent. Particularly, my Rationale Two in Application of Adams is applicable here.
It is regrettable that this Court continues its adherence to unsound holdings. Hotter and Application of Adams are its authority. Misgivings now surface in the majority opinion. Oh, yes, and the legislature might well change the law so that the ill-conceived precedent will take on a hue of legality. But will it? And can we adjudicate upon what the legislature might do? No, we must rule and interpret the legislative acts as they exist. We cannot tailor our decisions to achieve a result which we believe the legislative act should be or might be in the future.
We are on the wrong road. Continuing down that road will not get us to our destination. We must backtrack, get on the right road, and then start a new journey. Holter was wrong. Application of Adams was wrong. The circuit judges of this state, by creative sentencing, are trying to change the legislative/executive scheme of government. It cannot be done by their robe and gavel nor this Court’s loyalty to a mistake.
SDCL 23A-27-19 is the key statute and it has three sentences. It likewise has three thoughts — three parts. The first part is an empowering statute granting a trial court jurisdiction to suspend a sentence for a period of one year from the effective date of the conviction.* See State v. Means, 268 N.W.2d 802 (S.D.1978), for holding that circuit court retains jurisdiction for only one year from the effective date of judgment. The second part directs that the Board of Charities and Corrections shall supervise defendants whose sentence is suspended under the first part of the statute. Under the third part, this same board is given the “responsibility for enforcing the conditions imposed by the sentencing judge.” (Emphasis supplied.) SDCL 1-15-1 establishes the Board of Charities and Corrections and creates it as an arm of the Executive Branch of government. Two of the eight institutions under this board are the State Penitentiary and the Office of Correctional Services. SDCL 24-15-14 provides that the Board of Charities and Corrections is to “employ or appoint such officers and employees as may be necessary to accomplish the proper supervision of parolees and persons on parole under a suspended sentence.” (Emphasis supplied mine.) Clearly, the power and the mechanism to use the power is in the Executive Branch of government. By revoking the suspended sentence, the Judicial Branch of government usurped the power given to the Board of Charities and Corrections by statute.
*523If the reader will re-read the sentence of the trial court, as set forth in the majority opinion, it will at once become obvious from the last sentence that the trial court specifically placed this defendant-appellant under “the supervision and control of the Office of Corrections under the Department of Pardons and Paroles.” With the sentence so specifically stating, and the statutes so specifically expressing, it is beyond my ken that the majority opinion can arrive at an opinion diametrically opposed thereto.
Finally, not only for the aforesaid reasons, but for this additional reason, the trial court had no jurisdiction to revoke defendant-appellant’s parole: On July 23, 1982, he was discharged from parole by the Office of Correctional Services. He was informed, and the State of South Dakota so stipulated, that he had “no further obligation to the Department.” The separation of powers clause is found in Article II of the South Dakota State Constitution. The powers of government in this state are divided, exactly as it says, into three distinct departments, the legislative, the executive, and the judicial; the powers and duties of each of those departments are prescribed by the state constitution. Therefore, this Court has ruled that it is a violation of the separation of powers clause for the Court to rule on matters which have been constitutionally placed in one of the other two departments. Dunker v. Brown County Bd. of Educ., 80 S.D. 193, 121 N.W.2d 10 (1963). The Governor and the Board of Charities and Corrections, through the Board of Pardons and Paroles, have exclusive jurisdiction to grant pardons and paroles. S.D. Const, art. IV, § 3 and art. XIV, §§ 1 and 2. Based upon his record, he had been officially told by the sovereign that his debt to society, in essence, was paid. The one and only branch of government — the Executive Department — who had his “custody and supervision” and statutorily encharged with the “responsibility for enforcing the conditions imposed by the sentencing judge,” as well as rehabilitating defendant, had taken its sovereign hand off of defendant-appellant. The Judicial Branch could not then suffer to put its hand on him. It cannot review nor overrule the discretionary decision of the parole board. Accord: In re Question Concerning State Judicial Review, 199 Colo. 463, 610 P.2d 1340 (1980).
Accordingly, I would reverse the trial court’s Order Revoking Suspended Sentence. And, thereby, Mr. Adams would be free.
SDCL 23A-31-1(1), a consistent statute, allows for the same period of time for the reduction of a sentence by a trial court.