This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1620

 

 

State of Minnesota,
Respondent,

vs.

Melvin (NMN) Johns, n/k/a Khabir Abudl Wakil,
Appellant.

 

Filed March 7, 2000

Reversed and remanded

Schumacher, Judge

 

Dakota County District Court

File No. K394982

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Melvin (NMN) Johns, n/k/a Khabil Abdul Wakil, appeals the district court's decision that it lacked jurisdiction to consider Wakil's motion for resentencing and a dispositional departure. We reverse and remand.

FACTS

Wakil was convicted of one count of conspiracy to commit a controlled substance crime in the first degree and one count of aiding and abetting a controlled substance crime in the first degree, sentenced to 153 months in prison, and committed to the custody of the Commissioner of Corrections. This court affirmed his conviction, but the Minnesota Supreme Court reversed, and Wakil was released from prison. He moved to Illinois, where by all accounts he led a law-abiding life, running a barbershop and avoiding contact with his former criminal associates.

The United States Supreme Court reversed the Minnesota Supreme Court's decision. On remand, the Minnesota Supreme Court vacated its earlier decision and affirmed the court of appeals. The state moved for a new warrant of commitment re-committing Wakil to prison to serve the remainder of his sentence, with credit for time already served. Wakil moved for resentencing and a dispositional departure, offering evidence of his rehabilitation and good behavior. The district court denied both motions, concluding that because Wakil's sentence had been executed, Minn. R. Crim. Pro. 27.03, subd. 9 deprived it of jurisdiction to make any order respecting Wakil's sentence.


The state petitioned this court for a writ of mandamus ordering the district court to issue the new warrant of commitment. This court granted the petition on October 5, 1999, ordering the district court to issue the new warrant. Wakil timely appealed the district court's decision that it lacked jurisdiction to consider his motion for a dispositional departure.

D E C I S I O N

Wakil contends that the period between his release after the Minnesota Supreme Court reversed his conviction and before he was returned to prison following the United States Supreme Court's decision was a "de facto stay of execution" of his sentence. As a result, he contends that the district court had jurisdiction under Minn. R. Crim. P. 27.03 to modify his sentence before or instead of returning him to prison. The relevant part of that rule provides as follows:

The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.

 

Minn. R. Crim. P. 27.03, subd. 9.

It is undisputed that "not even the trial court has authority to modify a sentence once the sentence has been executed." State v. Ford, 539 N.W.2d 214, 230-31 (Minn. 1995). The state argues that when the Minnesota Supreme Court vacated its initial decision and reinstated the court of appeal's decision affirming Wakil's conviction, it necessarily reinstated Wakil's sentence as well.


However, that does not answer the question whether Wakil's sentence was "executed" for the purposes of rule 27.03 and the supreme court's decision in Ford at the time when Wakil asked the district court to reconsider his sentence. Wakil was tried, convicted, sentenced, and when that sentence was executed, imprisoned. But when his conviction was reversed, he was freed. When the decision reversing his conviction and freeing him was itself reversed, the state could not have lawfully enforced the sentence as it existed when it was originally "executed," because, as the state commendably recognized, Wakil was entitled to credit for the time he had already served. Furthermore, he was not in the state's custody at that time, having been lawfully released when his conviction was reversed.

Thus, before the state could reimprison Wakil, it both had to reacquire custody of Wakil and adjust the length of time for which he could be imprisoned. Indeed, the state itself asked the district court to "re-issue" the warrant of commitment for Wakil. If a new warrant of commitment was needed in order to reincarcerate Wakil, it seems reasonable to conclude that his sentence was not at that time "executed." Under the unusual circumstances of this case, we do not interpret Wakil's sentence as having been "executed" at the time he asked the district court to reconsider it.

If, as the state contends, the supreme court's decision vacating its prior decision and reinstating Wakil's conviction had the effect of also reinstating Wakil's sentence, then there was a period of time in which he was subject to a valid sentence that had not yet been executed against him. Wakil's contention that such a situation is functionally equivalent to a sentence subject to a stay of execution has some merit.

Our task in this case is to interpret rule 27.03 and the precedent interpreting it, most notably Ford. Neither the rule nor the caselaw speaks clearly to the unusual situation before us. Rule 27.03, however, does give the district court the power to modify a sentence that is subject to a stay of execution. Because rules of criminal procedure, like other procedural rules, are generally interpreted liberally, Norman J. Singer, Sutherland Statutory Construction, 67.02 (5th ed. 1992), we believe it appropriate to interpret the governing authorities in the manner most favorable to the criminal defendant. Cf. State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11 (1959) (in absence of clear statement from legislature, statute's penal features should be strictly construed and its remedial features liberally construed); Stoebe v. Merastar Ins. Co., 541 N.W.2d 600, 601-02 (Minn. App. 1995) (applying principle of statutory construction to interpretation of procedural rule), aff'd 554 N.W.2d 733 (Minn. 1996).

We therefore hold that the district court erred in holding that it lacked jurisdiction to consider Wakil's motion for resentencing and a downward departure. Our holding is limited to the unique facts of this case. We express no opinion on the merits of Wakil's motion. We hold only that the district court may consider it.

Reversed and remanded.