Changes to Existing Law

The sentencing court shall sentence an offender convicted of a Class 5 or Class 6 felony, except those convicted under §§ 22-11-15.7, 22-11A-2.1, 22-14-15, 22-18-1, 22-18-1.05, 22-18-26, 22-18-29, 22-19A-1, 22-19A-2, 22-19A-3, 22-19A-7, 22-19A-16, 22-22A-2, 22-22A-4, 22-22-24.3, subdivision 22-23-2(2), 22-24-1.2, 22- 24B-2, 22-24B-12, 22-24B-12.1, 22-24B-23, 22-30A-17 if the property stolen is a firearm, 22-30A-46, 22-42-7, subdivision 23A-43-31(1), subdivision 24-2-14(1), 32-23- 4.6, 32-33-18.2, and 32-34-5, and any person ineligible for probation under § 23A-27- 12, to a term of probation. If the offender is under the supervision of the Department of Corrections, the court must order a fully suspended state incarceration sentence pursuant to § 23A-27-18.4. The sentencing court may impose a sentence other than probation or a fully suspended state incarceration sentence if the court finds aggravating circumstances exist that pose a significant risk to the public and require a departure from presumptive probation under this section. If a departure is made, the judge must state the aggravating circumstances on the record at the time of sentencing and in the dispositional order. If the offender was under probation or parole supervision at the time of the instant offense, this section does not apply. Neither this section nor its application may be the basis for establishing a constitutionally protected liberty, property, or due process interest. 22