AGO 81-033.

• Case Date: March 27, 1981
• Court: North Dakota

North Dakota Attorney General Opinions 1981. AGO 81-033. OPINION 81-33Date Issued: March 27, 1981 (AGO 81-33) Requested by: John P. Van Grinsven III Ward County Assistant State's Attorney- QUESTION PRESENTED - Whether a person convicted of a felony who has been lawfully sentenced to a period of incarceration at the State Farm in Bismarck, but who has been ordered to serve the sentence in a county jail facility, is deemed to have been convicted of a misdemeanor pursuant to section 12-51-07 of the North Dakota Century Code.- ATTORNEY GENERAL'S OPINION - It is my opinion, to the extent it does not conflict with the sentencing court's intentions, that a defendant who has been sentenced to a period of incarceration at the State Farm for conviction of a felony, but who has been ordered to serve that sentence in a county jail facility, is deemed to have been convicted of a misdemeanor pursuant to section 12-51-07, N.D.C.C. - ANALYSIS - Opinions of the Attorney General are not controlling upon the judiciary. In addition, we do not express opinions in matters which are before the judiciary or have been judicially decided. Section 12-51-07, N.D.C.C., states as follows:

12-51-07. PRISONERS ELIGIBLE FOR COMMITMENT TO STATE FARM - COMMITMENT THERETO DEEMED A CONVICTION OF MISDEMEANOR. The judges of the district courts, and of the county courts with increased jurisdiction, may commit to the state farm, so far as the capacity of the farm shall permit, all male persons who otherwise would be committed to the county jail or to the penitentiary for violation of any criminal law of this state, where the sentence is not less than thirty days nor more than one year provided that no person shall be committed to the state farm who:

Has at any time been convicted of a sexual offense;

Has served a sentence or portion thereof in a penitentiary upon conviction of a felony; or

A person committed to the state farm shall not be deemed to have been convicted of a felony, but shall be deemed to have been convicted of a misdemeanor. (Emphasis supplied). How does this section affect a defendant convicted of a felony who was sentenced to the State Farm, but served his sentence (pursuant to court order) at a county jail facility? The question is whether the statute in question contemplates a requirement that only those persons who are, by court...