This opinion will be unpublished and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
State of Minnesota,
Robert L. Smith,
Filed June 29, 2004
Affirmed as modified
Hennepin County District Court
File No. 02093281
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, 300 South Sixth Street, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Philip Marron, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Minge, Judge.
Appellant challenges his sentence for first-degree criminal sexual conduct, arguing that fairness and equity require that he be given credit for time spent in custody after he provided a DNA sample until that sample, which linked him to the offense for which he was sentenced, was finally tested almost four years later. Appellant also argues that his conditional-release term must be reduced to five years because, when he committed the offense for which he was sentenced, he did not have a qualifying prior conviction. We affirm as modified.
In April 1998, appellant Robert L. Smith committed an offense for which he was convicted of third-degree criminal sexual conduct; in November 1998, the district court sentenced him to prison for 65 months. On 15 December 1998, appellant submitted a DNA sample that was received by the Minnesota Bureau of Criminal Apprehension (BCA) the next day. On 14 July 2002, appellant was released from prison and placed on supervised release.
On 23 October 2002, BCA officials notified the Minneapolis Police Department that appellant’s DNA sample matched evidence obtained from the victim of a sexual assault that had occurred on 28 April 1996. The victim reported that she was sunbathing in a public park when an unknown male approached her and requested sex. After the victim refused, the man forced her to the ground, hit her in the face and stomach, removed her clothing, and vaginally penetrated her.
Appellant was subsequently arrested and charged with two counts of first-degree criminal sexual conduct for the 28 April 1996 offense. He negotiated a plea agreement and pleaded guilty to one count of first-degree criminal sexual conduct, with his sentence to be capped at the presumptive guidelines. At the sentencing hearing, appellant requested jail credit for the 43 months he spent in custody after his DNA sample was taken (from 15 December 1998 to 14 July 2002). The district court denied the request and sentenced him to 146 months, 12 months less than the presumptive guidelines sentence, finding that public policy required DNA samples to be tested at least one year prior to an individual’s anticipated release date. Appellant now challenges his sentence.
1. Jail Credit
Awards of jail credit are not discretionary with the district court. State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. 15 Jan. 1988). Jail credit is “governed by principles of fairness and equity and must be determined on a case-by-case basis.” State v. Arend, 648 N.W.2d 746, 748 (Minn. App. 2002) (quotation omitted).
Appellant argues that he is entitled to jail credit from the date that his DNA sample was obtained. An individual is entitled to credit for “all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.” Minn. R. Crim. P. 27.03, subd. 4(B). The district court must ensure that a refusal of jail credit does not result in a de facto upward sentencing departure to consecutive sentences. State v. Dulski, 363 N.W.2d 307, 309-10 (Minn. 1985). “Thus, a defendant is entitled to credit for all time spent in custody following arrest, including time spent in custody on other charges, beginning on the date the prosecution acquires probable cause to charge defendant with the offense for which he or she was arrested.” State v. Fritzke, 521 N.W.2d 859, 862 (Minn. App. 1994). In Fritzke, probable cause existed prior to the defendant’s release from custody. Id. Here, the prosecution did not have probable cause to charge appellant with the 1996 offense until after his DNA sample was tested in October 2002.
Appellant claims that, because his DNA should have been tested more promptly, jail credit is appropriate regardless of whether the prosecution or state actually engaged in manipulation, citing State v. Folley, 438 N.W.2d 372 (Minn. 1989). But his reliance on Folley is misplaced; in Folley, the record indicated that the investigation regarding the offense at issue had been completed by the time the defendant was arrested on a different charge. Id. at 375. Here, no link connected appellant to the 1996 offense until after appellant’s release from prison for the 1998 offense.
At the sentencing hearing for the 1996 offense, the district court agreed that appellant’s DNA should have been tested earlier:
So in dealing with the DNA sample here, I’m not at all comfortable that the State did well by public safety – and I don’t mean the County Attorney’s Office – I’m really talking about the BCA and Corrections Department by not getting the sample done well in advance of the date of release. As I understand it, the date of release would have been July 2nd, so it seems to me that, giving them every benefit of the doubt, certainly by July 1, 2001, that DNA sample should have been analyzed, particularly when it was given to the BCA sometime in 1999.
The prosecutor explained that around the time appellant’s DNA sample was taken, a new method of testing DNA was developed and implemented at the BCA, forcing the BCA to “not only [test] the new things that were coming in, but re-do all the other stuff that they had already done.” The district court acknowledged the backlog at the BCA, but stated that it was “bad public policy” to allow the substantial delay to happen and concluded that public policy required appellant’s DNA to be tested within one year of his anticipated release date. The district court also considered other factors, including the severity of the offense, the fact that appellant had not come forward to police on his own, and the substantial delay between the obtaining and the testing of the DNA sample, before granting appellant 12 months of jail credit. We conclude that the district court did not err in refusing to grant appellant jail credit beyond the 12 month credit allowance for all time served after his DNA sample was taken.
2. Conditional Release
Appellant claims that the district court erred by sentencing him to 10 years of conditional release. At the time of the 1996 offense, conditional release for sex offenders was governed by Minn. Stat. § 609.346, subd. 5(a) (1994), which required that persons convicted of certain sexual offenses must be placed on conditional release for 5 years. But if the conviction was for a “second or subsequent” violation of the specified offenses, the person must receive 10 years of conditional release. Id. A “second or subsequent” violation “means that prior to the commission of the violation or offense, the actor has been adjudicated guilty of a specified similar violation or offense.” Minn. Stat. § 609.02, subd. 11 (1994). Respondent concedes that appellant’s 1996 conviction was not a “second or subsequent” violation because appellant committed the 1996 offense prior to his conviction for the 1998 offense and that appellant should have been sentenced to 5 years, rather than 10 years, of conditional release. Accordingly, we modify appellant’s sentence to include 5 years of conditional release instead of the 10 years of conditional release in appellant’s original sentence.
Affirmed as modified.
 We note that the district court did not rely on any statutory authority or caselaw in granting appellant 12 months of jail credit. But because the state does not challenge the sentence, we do not review the district court’s problematic authority to grant the 12 months of jail credit.
 Respondent argues that appellant waived consideration of this issue by failing to object to the conditional release term at the sentencing hearing. This court generally will not consider matters not argued and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But a defendant’s right to appeal a sentence may not be waived. See State v. Williams, 664 N.W.2d 432, 434 (Minn. App. 2003) (waiver of defendant’s right to appeal a sentence is invalid), review denied (Minn. 24 Sept. 2003). Moreover, this court may address any issue as justice requires. Minn. R. Civ. App. P. 103.04.
 Conditional release of sex offenders, in similar form, is now governed by Minn. Stat. § 609.109, subd. 7 (2002).