This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Kathy Ann Carroll,
Filed July 19, 2005
Martin County District Court
File No. K1-04-150
Mike Hatch, Attorney General,
Terry W. Viesselman,
John M. Stuart, State Public
Defender, Rochelle R. Winn, Assistant Public Defender,
Considered and decided by Shumaker, Presiding Judge; Willis, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges her sentence for a conviction of theft, arguing that the district court erred by finding aggravating factors and imposing an upward durational departure, in violation of her Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Because appellant did not waive her right to a jury determination of the aggravating factors on which the district court based the upward durational departure, we reverse and remand.
Appellant Kathy Ann Carroll pleaded guilty to theft, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (2002). Because Carroll had a criminal-history score of zero, the presumptive sentence under the Minnesota Sentencing Guidelines is one year and one day, stayed. But after finding that Carroll’s conduct was “a major offense, that there were multiple incidences with the same victim, [and] that it was over an extended period of time,” the district court imposed a 24-month sentence, stayed. Carroll challenges her sentence on appeal.
D E C I S I O N
argues that the district court erred by imposing an upward durational departure
in violation of her Sixth Amendment rights as described in Blakely
Washington, 542 U.S. 296, 124 S.
Ct. 2531 (2004). This challenge presents
a constitutional issue, which we review de novo. State v.
Blakely requires that a jury
find all facts on which the district court bases an upward durational departure
from a presumptive guidelines sentence. 542
Here, Carroll pleaded guilty to theft, but she did not waive her right to a jury determination of aggravating factors supporting an upward durational departure. We conclude, therefore, that the district court’s imposition of an upward durational departure based on judicially found aggravating factors is a violation of Carroll’s Sixth Amendment rights under Blakely, and we reverse and remand for resentencing consistent with Blakely.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The supreme court granted review in Conger but
stayed the matter pending a final decision in State v. Shattuck, No. C6-03-362 (