This opinion will be unpublished and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

C1-00-769

 

State of Minnesota,

Appellant,

 

vs.

 

Gary (NMN) Barnett,

Respondent.

 

 

Filed October 3, 2000

Reversed and remanded

Peterson, Judge

 

 

 Hennepin County District Court

File No. 99049861

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for appellant)

 

Frederick J. Goetz, Goetz Law Office, 2124 Dupont Avenue South, Minneapolis, MN  55405 (for respondent)

 

 

            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            In this sentencing appeal, appellant State of Minnesota argues that the district court erred when it sentenced respondent Gary Barnett without regard to the 60-month, mandatory-minimum sentence established by Minn. Stat. § 609.11, subd. 5(b) (1998).  We reverse and remand.

FACTS

            Barnett pleaded guilty to a charge of felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b), 2 (1998).  Barnett’s criminal history includes a 1987 second-degree-assault conviction for stabbing a victim with a knife and a 1993 felon-in-possession-of-a-firearm conviction.  At the plea hearing, Barnett admitted that he possessed a handgun and that his prior convictions rendered him ineligible to possess a firearm. 

            At the sentencing hearing, the court initially stated that it was going to sentence Barnett to a 60-month prison term pursuant to Minn. Stat. § 609.11, subd. 5(b) (1998).  Barnett argued that if the district court was going to sentence him to 60 months, he was going to withdraw his guilty plea because he understood that under the plea agreement, he would receive, at most, a guidelines sentence, regardless of the mandatory minimum.  The guidelines sentence for felon in possession of a firearm, with a criminal-history score of five, is 49 to 53 months.  Minn. Sent. Guidelines IV, V (1998).  After reviewing the record from the plea hearing and realizing that it had told Barnett that he would be given “a guideline sentence which would be less than 60 months,” the court sentenced Barnett to an executed, 49-month prison term.   

D E C I S I O N

            Minn. Stat. § 609.11, subd. 5(b) (1998), provides:

            Any defendant convicted of violating section 609.165 or 624.713, subdivision 1, clause (b), shall be committed to the commissioner of corrections for not less than five years, nor more than the maximum sentence provided by law.

 

            Minn. Stat. § 609.11, subd. 8(b) (1998), provides:

     The court may not, on its own motion or the prosecutor’s motion, sentence a defendant without regard to the mandatory minimum sentences established by this section if the defendant previously has been convicted on an offense listed in subdivision 9 in which the defendant used or possessed a firearm or other dangerous weapon.

 

            The offenses listed in Minn. Stat. § 609.11, subd. 9 (1998), for which a mandatory minimum sentence shall be served, include second-decree assault and unlawful possession of a firearm. 

            The state argues that because Barnett has prior convictions for second-degree assault using a knife and unlawful possession of a firearm, the sentencing court had no authority to impose any sentence other than the 60-month, mandatory-minimum sentence established by Minn. Stat. § 609.11, subd. 5(b). 

            Barnett acknowledges that he previously has been convicted of an offense listed in subdivision 9 in which he used a firearm or other dangerous weapon.  He argues, however, that the unambiguous language of Minn. Stat. § 609.11, subd. 8(b), only prohibits the district court from sentencing without regard to the mandatory minimum “on its own motion or the prosecutor’s motion.”  Barnett contends that because he brought the motion to depart, the district court had authority to sentence him without regard to the mandatory-minimum sentence.

            Interpretation of a sentencing statute is a question of law fully reviewable by this court.  State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995), review denied (Minn. May 31, 1995). 

            Barnett’s argument ignores the language of Minn. Stat. § 609.11, subd. 8(a) (1998), which immediately precedes the language upon which his argument is based.  Minn. Stat. § 609.11, subd. 8(a), provides:

            Except as otherwise provided in paragraph (b), prior to the time of sentencing, the prosecutor may file a motion to have the defendant sentenced without regard to the mandatory minimum sentences established by this section.  The motion shall be accompanied by a statement on the record of the reasons for it.  When presented with the motion, or on its own motion, the court may sentence the defendant without regard to the mandatory minimum sentences established by this section if the court finds substantial and compelling reasons to do so.  A sentence imposed under this subdivision is a departure from the sentencing guidelines.

 

            When the language in subdivision 8(b), upon which Barnett relies, is read in conjunction with the language of subdivision 8(a), it is apparent that subdivision 8(b) did not permit the sentencing court to sentence Barnett without regard to the mandatory-minimum sentence applicable to his offense simply because Barnett, rather than the court or the prosecutor, filed a motion to be sentenced without regard to the mandatory-minimum sentence.  Instead, subdivision 8(a) states a general rule that, on the motion of the prosecutor or on the court’s own motion, a sentencing court may sentence a defendant without regard to a mandatory-minimum sentence.  Then, subdivision 8(b) states that the authority granted in subdivision 8(a) does not apply when the defendant has been previously convicted of certain offenses.  Under the circumstances specified in subdivision 8(b), the sentencing court may not sentence a defendant without regard to a mandatory-minimum sentence. 

            Because Barnett has been previously convicted of one of the offenses specified in subdivision 8(b), the sentencing court had no authority to impose any sentence other than the 60-month, mandatory-minimum sentence established by Minn. Stat. § 609.11, subd. 5(b).

            Reversed and remanded.