IN COURT OF APPEALS
Howard Wayne Miller,
State of Minnesota,
Reversed and remanded
Crow Wing County District Court
File No. K8-98-2131
Mary M. McMahon, McMahon & Associates Criminal Defense,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Donald F. Ryan,
Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.
Minn. Stat. § 609.109, subd. 7(a) (1998), does not authorize a district court to impose consecutive conditional release periods.
Appellant challenges his sentence on the ground that Minn. Stat. § 609.109, subd. 7(a) (1998), did not allow the district court to impose consecutive terms of conditional release. Because we conclude that the statute’s text and purpose do not support the imposition of consecutive conditional release terms, we reverse and remand for resentencing.
Appellant Howard Wayne Miller was charged with two counts of sexual misconduct based on separate incidents against the same victim, and a consolidated jury trial was conducted. Appellant was convicted of one count of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342 (1996), and one count of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343 (1996). The district court sentenced appellant to 480 months on the first-degree criminal sexual conduct conviction and 42 months on the second-degree criminal sexual conduct conviction and ordered that the sentences be served consecutively. Because appellant had previously been convicted of first-degree criminal sexual conduct, the district court imposed a ten-year period of conditional release, pursuant to Minn. Stat. § 609.109, subd. 7(a) (1998). The district court went on to impose a second consecutive ten-year period of conditional release for the second-degree criminal sexual conduct conviction because it was also an offense eligible for the period under Minn. Stat. § 609.109, subd. 7(a).
court affirmed appellant’s convictions in State
v. Miller, No. C9-99-2200 (
I S S U E
Are consecutive terms of conditional release authorized by Minn. Stat. § 609.109, subd. 7(a)?
district court may at any time correct a sentence that is not authorized by
interpretation of sentencing statutes is a question of law, which this court
reviews de novo. State v. Borrego, 661 N.W.2d 663, 666 (
At the time of appellant’s sentencing, the conditional release statute provided that:
[W]hen a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. . . . If the person was convicted for a violation of [section 609.342, 609.343, 609.344, or 609.345] . . . the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.
Minn. Stat. § 609.109, subd. 7(a) (1998).
question of whether a court may impose consecutive terms of conditional release
is one of first impression. The statute
does not expressly provide for multiple or consecutive conditional release
periods. In fact, as written, the text provides for
only a single period of conditional release lasting either five or ten
years. See id. As the Minnesota
Supreme Court has observed, “[t]he plain meaning of the phrase, ‘the person shall be placed on conditional release
for five years . . . [or] ten years’ indicates that the period of conditional
release must be either five or ten years, not more and not less.” Wukawitz,
662 N.W.2d at 525. Additionally, a
second consecutive period of conditional release would violate the statutory direction
to begin the conditional release term “after the person has completed the
Even if we were to find the statute’s text ambiguous, the rule of lenity requires this court to construe the statute in favor of a criminal defendant. “This court cannot supply what the legislature has omitted.” Koperski, 611 N.W.2d at 573. Absent a clear statement by the legislature authorizing consecutive terms of conditional release, we will not read one into the statute when its plain text calls for only a single period.
purpose served by the conditional release statute provides further support for
this interpretation. Conditional release
functions as “a term of supervision,” Wukawitz,
662 N.W.2d at 520 n.2, or “probation,” State
v. Humes, 581 N.W.2d 317, 319 n.2 (
Based on the foregoing considerations, we conclude that consecutive conditional release sentences were unauthorized as a matter of law. We reverse and remand for resentencing. In the absence of a determination by the district court, we direct that the conditional release term for the first conviction should be vacated and that only the conditional release term for the second offense (second-degree criminal sexual conduct) then remains.
D E C I S I O N
Conditional release applies only at the end of a term of imprisonment, even a combined term involving consecutive sentences. Because multiple or consecutive conditional release terms cannot be imposed for convictions resulting from a single trial, the original sentence was unauthorized as a matter of law.
Reversed and remanded.
The Minnesota Sentencing Guidelines contain no authorization for consecutive periods of conditional release. This omission contrasts with Minn. Sent. Guidelines II.F, which expressly permits consecutive sentences of imprisonment.
 We acknowledge there may be unique circumstances. See Koperski, 611 N.W.2d. at 571. However, no unique circumstance has been argued or appears to exist in the case before us.
 We note that this issue may become moot. Appellant is presently 49 years old. Even if he commits no disciplinary offenses, and serves as much as the maximum one-third of his sentence on supervised release, pursuant to Minn. Stat. §§ 244.101, subd. 1 (2004), 244.05, subd. 1b (2004), no additional conditional release term would be served and he would be 75 years old when discharged from the supervision of the commissioner of corrections. If disciplinary offenses occur and the full sentence is served incarcerated, he would be 84 years old when the conditional release term ends.