This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Robert Allen Fuller,
Filed January 17, 2006
Toussaint, Chief Judge
Randall, Concurring specially
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender,
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On remand, this court was
directed to address whether an upward departure from the presumptive sentence
imposed for first-degree aggravated robbery was proper under State v. Geller, 665 N.W.2d
remand asks this court to address whether a departure from the presumptive
guidelines is permitted under Geller and
Williams. Both cases concern a sentencing court’s
reasons for departing from the guidelines presumptive sentences. Williams
set out five rules enforcing the requirement that sentencing courts state their
reasons justifying a departure from the guidelines presumptive sentence. 361 N.W.2d at 844. The first rule states that a court’s failure
to state reasons precludes a departure.
The fourth rule states that, if an inadequate reason is stated but the evidence
in the record supports departure, the departure will be affirmed.
Here, the state relies on Williams to argue that the court gave a reason for the departure, the reason was improper, there was sufficient evidence in the record to justify the departure, and the departure should be affirmed. The state argues that the district court gave a reason, although not a “proper” or “adequate” reason, for the departure when it referred to the plea negotiation when imposing the sentence, and, even if the reason is “inadequate,” this court may look at the record to determine if there is evidence of aggravating factors.
relies on State v. Misquadace, 644 N.W.2d
65, 71 (
The pivotal issue here is whether the sentencing court’s reference to the plea agreement was a stated reason for the departure. The sentencing transcript indicates that, after counsel for the parties described the reasons for the plea, the court, in one short paragraph, imposed a 72-month sentence, a departure from the presumptive 48 months. The only brief reference to the plea is in the last sentence, where the court, “pursuant to the negotiation,” dismissed the second count. We agree with appellant that the sentencing court did not give any reason for the departure, not even an inadequate reason. Therefore, under Geller and Williams, we conclude that the matter must be remanded for imposition of the presumptive sentence.
Reversed and remanded.
RANDALL, Judge (concurring specially).
I concur in the result.