This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Brett Theodore Larson, Jr.,




Filed January 2, 2002


Anderson, Judge


Itasca County District Court

File No. K5991743


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


John J. Muhar, Itasca County Attorney, W. James Mason, Assistant Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street, Grand Rapids, MN  55744 (for respondent)


John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


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

U N P U B L I S H E D  O P I N I O N



            Appellant pleaded guilty to several crimes, served probationary jail time, was released, violated his probation, had his probation revoked, and had an earlier sentence executed.  Appellant argues that the district court erred by not granting appellant’s request that the nine months that he served on his earlier felony convictions be applied towards a later 27-month executed term that he is now serving.  Because we agree with the district court that the sentences were consecutive, we affirm.


On October 26, 1999, appellant pleaded guilty to two counts of felony theft (Minn. Stat. §§ 609.52, subds. 1, 2(1), 3(3)(a), 3(d)(iii); § 609.05 (1998)), felony burglary in the first degree (Minn. Stat. § 609.582, subd. 1a (1998)), felony terroristic threats (Minn. Stat. § 609.713 (1998)), misdemeanor driving under the influence (Minn. Stat. § 169.121, subd. 1(a) (1998)), and misdemeanor possession of stolen property (Minn. Stat. §§ 609.53, subd. 1; 609.52, subd. 3(5) (1998)). 

The district court sentenced appellant to five years probation for the felony-theft convictions, stayed imposition for five years, and as a condition of probation, ordered appellant to serve nine months in the Itasca County jail.  Appellant received a 27-month stayed sentence for the first-degree burglary conviction.

            In the course of the plea and sentencing, appellant’s trial counsel told the district court that the plea bargain contemplated that all of the sentences would be concurrent, except for the burglary conviction, which would be consecutive with respect to duration only. 

The district court then received appellant’s guilty pleas.  The court reminded appellant that the balance of his jail term, which was to be a 27-month executed jail sentence, would remain hanging over his head, and if there were any probation violations, appellant would serve the full sentence.  Appellant stated that he understood.  At the end of the proceeding, the district court stated, “The sentences on all matters are concurrent with the exception of the jail time on the first degree burglary which is consecutive.”

            In July 2000, appellant appeared before the district court to admit to his probation violations and to be sentenced for those violations.  The district court asked counsel how much time appellant had remaining on his sentences.  Appellant’s counsel and the Department of Corrections representative agreed that appellant still had the full 27-month commitment pending if the district court found that appellant violated probation.  The district court found that appellant violated his probation, and it executed the 27-month sentence.

            Appellant challenges the district court’s ruling that he was not entitled to nine months’ credit against his 27-month executed sentence for first-degree burglary. 


“The granting of jail credit is not discretionary with the trial court.”  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988); see also State v. Fritzke, 521 N.W.2d 859, 861 (Minn. App. 1994).  “The issue of jail credit must be addressed on a ‘case-by-case basis.’”  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (quoting State v. Dulski, 363 N.W.2d 307, 310 (Minn. 1985)), review denied (Minn. July 20, 1995).  “The offender has the burden to establish entitlement to specific jail credit.”  State v. Wilkinson,539 N.W.2d 249, 252 (Minn. App. 1995). 

            Under Minn. R. Crim. P. 27.03, subd. 4(B), jail credit is to be automatically deducted from a sentence.  Jail credit is not to be granted, however, to allow an offender to receive double credit when consecutive sentences are involved.  See State v. Anderson, 520 N.W.2d 184, 187 (Minn. App. 1994); see also Minn. Sent. Guidelines III.C.2.  The comment to the sentencing guidelines requires that

the awarding of jail credit should not result in de facto concurrent sentences. Therefore, when applying jail credit to consecutive sentences, credit is only applied to the first sentence in order to avoid awarding double credit. 


Minn. Sent. Guidelines cmt. III.C.03.  The district court sentenced appellant to the presumptive sentence at his original plea and sentencing hearing.  Appellant contends that the district court imposed concurrent sentences.  This contention is unfounded.  The sentences here were consecutive.  Based on the sentencing guidelines, appellant is not entitled to receive jail credit for his nine-month jail term against his later-executed, consecutive sentence for first-degree burglary.  Therefore, the district court properly denied appellant’s request for jail credit.