This opinion will be unpublished and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
Filed February 7, 2006
Wright County District Court
File No. K3-02-1554
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.
On January 24, 2002, K.N.E. contacted the Wright County Sheriff’s Department to report that between 1984 and 1987, when she was between eight and nine years old, she was sexually abused on at least three occasions by appellant, who is her uncle. K.N.E. explained that she sought counseling over the years and that she wanted to report the incidents for closure. A complaint was signed on April 30, 2002, charging appellant with first- and second-degree criminal sexual conduct.
On November 18, 2003, appellant pleaded guilty to second-degree criminal sexual conduct and the remaining count was dismissed. In January 2004, appellant was sentenced to a stayed term of 44 months and placed on probation for 25 years subject to a number of conditions, including that he serve one year in the Wright County Jail and refrain from the use of alcohol. Appellant had already served the one year probationary jail term by the time of sentencing and was released on probation.
On September 8, 2004, a probation violation report was filed against appellant after he failed to abstain from the use of alcohol. The report recommended that appellant obtain a further chemical use assessment, follow the recommendations of that assessment, and serve an additional 120 days in the county jail.
At a September 30, 2004 hearing, appellant requested
execution of his 44-month sentence. He
also requested that he be given jail credit for time that he served on
unrelated offenses that were committed after the current offense; appellant had
been sentenced to 41 months in 1989 and to 36 months in 1990 on criminal sexual
conduct convictions involving other victims in
In support of his request for jail credit, appellant
submitted two documents prepared by defense investigator
In the second document,
In denying appellant’s request for jail credit, the
district court concluded that appellant failed to present sufficient evidence
to show that probable cause existed as of April 22, 1990, which is the date
that K.N.E.’s cousin gave her statement to authorities in
With respect to the information provided to authorities by K.N.E.’s mother, the district court concluded that because “it is not clear on the record [here] what was actually said during this conversation,” appellant failed to prove that the state had probable cause in 1990. The district court determined that appellant was entitled to jail credit from April 30, 2002, which is the date that the prosecutor signed the complaint.
of jail credit are not discretionary with the district court. State
v. Parr, 414 N.W.2d 776, 778 (
burden is on the defendant to prove probable cause and entitlement to jail
credit. State v. Willis, 376 N.W.2d 427, 428 n.1 (
district court determined that the evidence presented by appellant was insufficient
to establish that probable cause existed in 1990. We agree.
Nevertheless, we note that the district court granted appellant jail credit only from April 30, 2002, the date the prosecutor signed the complaint, rather than from January 24, 2002, the date that K.N.E. reported the crime to authorities. Because any ambiguity must be resolved in favor of appellant, we conclude that once authorities received this detailed and reliable information from K.N.E., probable cause existed. We therefore modify the district court’s decision to grant jail credit from January 24, 2002.
Affirmed as modified.