This opinion will be unpublished and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
State of Minnesota,
Filed May 9, 2000
Hennepin County District Court
File No. 96062758
Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying his motion for correction of sentence, appellant Lamont Bugg argues that the statute requiring conditional release terms for criminal sexual conduct offenses does not apply to an attempt to commit criminal sexual conduct. Both parties agree that if the conditional release term is held valid, appellant should be allowed to withdraw his guilty plea because conditional release was not part of the plea agreement and was not imposed until after sentencing. We reverse.
Appellant argues that the conditional release statute does not apply to him because he was convicted of attempting to commit criminal sexual conduct as opposed to committing criminal sexual conduct. Because the Minnesota Supreme Court has applied Minn. Stat. § 609.346, subd. 5 (1998) to a defendant’s attempt conviction, the trial court did not err in ordering conditional release here. See State v. Garcia, 582 N.W.2d 879, 880 (Minn. 1998) (holding under Minn. Stat. § 609.346 Garcia’s sentence for attempted first-degree sexual conduct must include a conditional release term). An extended discussion of the conditional release requirement is better left to a later time and a more appropriate case.
The state agrees that appellant should be allowed to withdraw his guilty plea. Appellant was never informed that he would receive a mandatory conditional release term in addition to the 24-month sentence that was part of his plea agreement. In fact, appellant’s sentence did not include the conditional release term until the trial court amended his sentence six months after his original sentencing. The facts here are very similar to those in Garcia, where the state also consented to withdrawal of a guilty plea. In deciding Garcia, the supreme court held:
“It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn.” In the instant case, the prosecution promised Garcia an 81-month executed sentence, which did not include a conditional release term, in exchange for his plea of guilty to the charge of attempted first-degree criminal sexual conduct. This unqualified promise is unauthorized by law and therefore, Garcia must be allowed to withdraw from the plea arrangement if he so chooses.
Id. at 882 (quoting Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979)).
Here, the state promised appellant a 24-month executed sentence, which did not include a conditional release term, in exchange for his plea of guilty to the charge of attempted third-degree criminal sexual conduct. Because appellant is in the same position Garcia was, he must be allowed to withdraw his guilty plea.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.