This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1427

 

State of Minnesota,
Appellant,

vs.

Lance Sherman Gadbaw,
Respondent.

 

Filed January 20, 2004

Reversed and remanded

Stoneburner, Judge

 

Sibley County District Court

File No. K702114

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

David E. Schauer, Sibley County Attorney, Box H, 307 North Pleasant Avenue, Winthrop, MN 55396 (for appellant)

 

John M. Stuart, Minnesota Public Defender, Phillip Marron, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            The state appeals from the district court’s sentencing of respondent Lance Sherman Gadbaw.  Because the district court did not state reasons adequate to support a downward dispositional departure in the form of a stay of execution, we reverse and remand for resentencing.

FACTS

 

            Twenty-two-year-old respondent Lance Sherman Gadbaw pleaded guilty to and was convicted of second-degree controlled-substance violation under Minn. Stat. § 152.022, subd. 1(1) (2000) for sale of 27.5 grams of cocaine to a Bureau of Criminal Apprehension’s undercover agent.  Gadbaw testified that he made the sale as a favor to his sister’s boyfriend because he was living rent-free at their mobile home.

            The guideline sentence for second-degree controlled substance crime for Gadbaw, whose criminal history score was zero, is a 48-month commitment to the Commissioner of Corrections.  At sentencing, Gadbaw moved for a downward dispositional departure.  The district court granted the motion, and stayed Gadbaw’s 48-month sentence for 25 years conditioned on probation, 12 months in the Sibley County jail with work release, payment of restitution in the amount of $1,200, completion of and compliance with a chemical-use assessment, abstinence from alcohol and controlled substances, cooperation and honesty with his probation agent and no further offenses. 

            On the record, the district court stated: “[t]his defendant is a first-timer, there is much in here that tells me that 48 months is way too long. . . . In doing this, I’m finding that you are an appropriate candidate for probation.”  This appeal followed.

 

 

D E C I S I O N

 

            The decision to depart from the sentencing guidelines is within the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  “Appellate courts do not generally interfere with a district court’s decision to depart downward.”  State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001) (citation omitted).  But the district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  When departing from the sentencing guidelines, “the district court shall make written findings of fact as to the reasons for departure….”  Minn. Stat. § 244.10, subd. 2 (2002).  The requirement to provide written reasons for departure is satisfied when the district court makes oral findings on the record.  See State v. Bale, 493 N.W.2d 123, 125 (Minn. App. 1992).

            Minn. Stat. § 152.152 (2002) limits the district court’s authority to stay imposition or execution of a presumptive prison sentence for a violation of section 152.022.

            The sentence may be stayed based on amenability to probation only if the offender presents adequate evidence to the court that the offender has been accepted by, and can respond to, a treatment program that has been approved by the Commissioner of human services.  The court may impose a sentence that is a mitigated dispositional departure on any other ground only if the Court includes as a condition of probation incarceration in a local jail or workhouse.

 

Minn. Stat. § 152.152.  At sentencing, even though Gadbaw did not produce any evidence that he had been accepted into an approved treatment program, the only ground for departure stated by the district court was Gadbaw’s amenability to probation.  Because the plain language of the statute provides that the district court may only stay Gadbaw’s sentence based on amenability to probation after receiving evidence that he has been accepted by, and can respond to, an approved treatment program, the record does not support the downward departure.

            Gadbaw argues that the stay was based on “other grounds” as permitted by Minn. Stat. § 152.152 so long as incarceration in the local jail is a condition of probation, as it was in this case.  But the district court failed to state any other ground for the departure except that Gadbaw is a “first-timer,” a factor already reflected in his zero criminal history score.  Because the sentencing court failed to make findings adequate to support the sentence imposed, we remand for resentencing.  We do not by this opinion intend to indicate the appropriate sentence.

            Reversed and remanded.