This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Richard Wayne Taylor,
Ramsey County District Court
File No. K0022075
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Richard Wayne Taylor challenges the district court’s resentencing order vacating jail credit awarded and increasing the conditional-release term from five to ten years. Taylor argues that the district court lacked jurisdiction to vacate the jail credit award on the grounds that it was a “clerical mistake.” Taylor also argues that because his 2001 conviction was not a “previous sex offense” as defined by Minn. Stat. § 609.109, subd. 5 (2002), the court erred in imposing a ten-year conditional-release term. We affirm in part, and reverse in part.
Taylor was charged on June 12, 2002, with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. At a plea hearing on August 28, 2002, Taylor pleaded guilty to both charges pursuant to a negotiated plea. During the hearing, the prosecutor stated:
Count I, there is a joint recommendation for a downward durational departure to a sentence of 60 months that will be served consecutive, consecutively to the sentence that Mr. Taylor is currently serving now. And Count II will be a guidelines sentence and will be served concurrently with Count I. So my understanding is there will be a total of 60 months additional time for Mr. Taylor to serve. In addition to those two, Mr. Taylor will be given a 10-year conditional release term since this will be his second and third criminal sexual conduct conviction even though this offense date happened prior to the crime that he’s currently incarcerated for . . . . I don’t think he’ll get custody credit since Count I is consecutive to his current sentence.
When Taylor appeared for sentencing on October 4, he was already serving a 180-month sentence for a March 2001 first-degree criminal-sexual-conduct conviction arising from another offense. The district court sentenced Taylor to 60 months in prison for Count I and 39 months in prison for Count II, which was to be served concurrently with the sentence for Count I. The district court also imposed a five-year conditional-release term and gave Taylor 438 days of jail credit toward both sentences. The prosecutor who was present at the sentencing hearing was not involved in the negotiated plea agreement, and she did object to this sentence.
On October 10, the state filed a Notice of Motion and Motion for Resentencing. Citing Minn. R. Crim. P. 27.03, subds. 8, 9, the state argued that because Taylor’s current sentences were consecutive to a prior sentence, he was not entitled to jail credit, and that because Taylor had a prior sexual-crime conviction, the conditional-release term should be increased from five to ten years.
At the hearing on the motion, the district court acknowledged that by granting Taylor jail credit, it rendered his two current sentences concurrent with the sentence he was already serving. The court stated that it was not its intent to make the sentences concurrent, and that it committed this error because it was relying on the pre-sentence investigation report. The district court granted the state’s motion on the ground that there had been a “clerical error.”
D E C I S I O N
1. Questions of authority and jurisdiction of lower courts are legal issues subject to de novo review. State v. Pflepsen, 590 N.W.2d 759, 763 (Minn. 1999). To the extent this appeal involves questions of interpretation of rules of criminal procedure, the standard of review is also de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).
Taylor argues that the court’s award of jail credit was not a “clerical mistake” and, therefore, the court had no jurisdiction to change his already-executed sentence on that basis. But we need not determine whether the court had authority to change Taylor’s sentence based on the award of jail credit being a “clerical mistake” because, under Minn. R. Crim. P. 27.03, subd. 9, the district court may change a sentence that is not “authorized by law.” Under Minnesota law, jail credit is to be automatically deducted from a sentence. See Minn. R. Crim. P. 27.03, subd. 4(B). Jail credit applies to each sentence of multiple concurrent terms. State v. Patricelli, 357 N.W.2d 89, 94 (Minn. 1984). But when sentences are consecutive, jail credit should be applied to only the first sentence because to do otherwise would constitute “double credit.” See Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986) (no double credit for consecutive sentences); Minn. Sent. Guidelines III.C.2 (double jail credit shall not be given to consecutive sentences).
In order to avoid de facto concurrent sentences when a current offense is sentenced consecutive to a prior offense for which the offender is already serving time in a prison or jail, no jail credit shall be awarded on the current offense.
Minn. Sent. Guidelines cmt. III.C.03 (emphasis added).
Taylor was serving a 180-month sentence for a March 2001 first-degree criminal-sexual-conduct conviction. Although he was sentenced to serve his two current sentences concurrently, the sentences were to be consecutive to the sentence for the March 2001 conviction. Thus, the court’s initial award of jail credit resulted in double credit, which is not authorized by law. Minn. Sent. Guidelines III.c.2. Because the original sentence was not authorized by law, the district court had authority to correct Taylor’s sentence by vacating the jail credit.
2. During the sentencing hearing, the district court imposed a five-year conditional-release term. Upon the state’s motion, the district court increased the conditional-release term to ten years based on the premise that Taylor had a “previous sex offense conviction.” Taylor argues that the district court erred by increasing his conditional-release term because his prior conviction does not meet the statutory definition of “previous sexual offense conviction.” We agree.
Minn. Stat. § 609.109, subd. 7(a) (2002), provides:
If [a] person was convicted for a violation of 609.342, 609.343, 609.344, or 609.345, the person shall be placed on conditional release for five years, minus the time the person served on supervised release. If the person was convicted for a violation of one of those sections after a previous sex offense conviction as defined in subdivision 5, or sentenced under subdivision 6 to a mandatory departure, the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.
Taylor was not sentenced to a mandatory departure under subdivision 6 and, therefore, the issue is whether he has a “previous sex offense conviction” as defined in subdivision 5.
Minn. Stat. § 609.109, subd. 5 (2002), states,
a conviction is considered a previous sex offense conviction if the person was convicted of a sex offense before the commission of the present offense of conviction. * * * A “sex offense” is a violation of sections 609.342 to 609.345 or any similar statute of the United States, this state, or any other state.
(Emphasis added.) Taylor was convicted of first-degree criminal sexual conduct on March 16, 2001, for another offense. His current convictions are for offenses committed between January 1, 1998 and June 30, 2000, which was before his March 2001 conviction. Therefore, Taylor’s March 2001 conviction is not a “previous sex offense conviction” and cannot be relied upon to increase the conditional-release term to ten years.
Because Taylor did not have a “previous sex offense conviction,” we reverse the district court’s decision to increase the conditional-release term to ten years. Taylor’s conditional-release term is five years.
Affirmed in part, reversed in part.