This opinion will be unpublished and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
State of Minnesota,
Bennett Winston White,
Hennepin County District Court
File No. 03065174
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Margaret Millington,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
challenges his sentence because the upward departure was not based on findings
by a jury or his own admissions, as required by Blakely v. Washington, 542
On January 9, 2004, appellant Bennett White pleaded guilty to one count of criminal damage to property in the first degree, in violation of Minn. Stat. § 609.595, subd. 1 (2002). At the plea hearing, appellant admitted that on September 7, 2003, he caused damage to another car by intentionally ramming it with his car. The plea agreement provided for a 24-month sentence (a double upward departure), a stay of execution of the sentence, and probation. The sentencing hearing occurred on January 29, 2004.
Appellant violated his probation and was brought before the district court on three different occasions. Appellant’s third probation-violation hearing was held on December 15, 2004. The district court offered to partially revoke the stay and leave some conditions in place, but appellant requested that the district court revoke the stay entirely. The district court revoked the stay and executed appellant’s sentence. This appeal follows.
issue before us is whether Blakely v.
Blakely v. Washington, the United
States Supreme Court held that a district court can only impose the maximum
sentence warranted by facts determined by a jury or admitted by the
State v. Losh, this court considered
a challenge under Blakely. 694 N.W.2d 98, 99 (
acknowledges the Losh decision, but
requests that this court adopt a different approach. Appellant argues that retroactivity analysis
should focus on the date a sentence becomes final, rather than the date a conviction
becomes final, citing State v. Fields,
416 N.W.2d 734 (Minn. 1987). In Fields, the court held that a defendant
could challenge his sentence for the first time by making a motion at the
hearing where his stay of execution was revoked, rather than requiring either a
direct appeal from the judgment of conviction or a postconviction
[T]he retroactivity analysis of
694 N.W.2d at 101 n.2.
In State v. Beaty, the district court stayed
imposition of the appellant’s sentence, and vacated the stay of imposition the
day before Blakely was decided. 696 N.W.2d 406, 408-09 (
appellant was sentenced on January 29, 2004, and execution of his sentence was
stayed. Appellant’s conviction became
final 90 days after he was sentenced because he did not file an appeal within
those 90 days. See
 At the sentencing hearing, the duration was increased to 26 months because of appellant’s criminal-history score.