This opinion will be unpublished and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
Timothy Dowane White,
Filed June 13, 2006
Olmsted County District Court
File No. K4-03-639
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street S.E., Rochester, MN 55904 (for appellant)
John M. Stuart, State Public Defender, Philip Marron, Assistant Public
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a sentence imposed for aiding and abetting controlled-substance crime in the third degree, the state argues that because respondent had a prior controlled-substance conviction, the district court had no discretion to stay execution of respondent’s sentence, and it erred in construing Minn. Stat. § 152.023, subd. 3(b) (2002), to allow the dispositional departure. Because respondent had a prior controlled-substance conviction, the district court did not have the discretion to stay the execution of respondent’s sentence, and we therefore reverse and remand for resentencing consistent with Minn. Stat. § 152.023, subd. 3(b).
D E C I S I O N
The state argues that the district court did not have
the authority to stay execution of respondent Timothy Dowane White’s sentence
and place him on probation because respondent’s current conviction was a
“subsequent controlled substance conviction,” which requires that respondent be
“committed to the commissioner of corrections for not less than two years nor
more than 30 years[.]” Minn. Stat. §
152.023, subd. 3(b) (2002). Further,
Minn. Stat. § 152.026 (2002) states, “[a] defendant convicted and sentenced to
a mandatory sentence under sections 152.021 to 152.025 and 152.0262 is not
eligible for probation, parole, discharge, or supervised release until that
person has served the full term of imprisonment[.]” Statutory construction is a question of law,
which this court reviews de novo.
This issue was addressed in State v. Bluhm, 676 N.W.2d 649 (
Respondent was convicted of aiding
and abetting a controlled-substance crime in the third degree, in violation of
Minn. Stat. § 152.023, subd. 1(1) (2002).
If the conviction is a subsequent controlled substance conviction, a person convicted under subdivision 1 or 2 shall be committed to the commissioner of corrections for not less than two years nor more than 30 years and, in addition, may be sentenced to payment of a fine of not more than $250,000.
the exception of the length of the sentence to be imposed and the fine amount,
this language is exactly the same as that found in Minn. Stat. § 152.025, subd.
3(b) and addressed in Bluhm. Because respondent was convicted of a
controlled-substance crime in October 2001, the current conviction qualifies as
a “subsequent controlled substance conviction.”
Following the supreme court’s analysis in
Finally, Minn. Stat. § 152.152 (2002) states that when an individual is convicted under Minn. Stat. § 152.023 and the sentencing guidelines call for a presumptive sentence, the district court may stay imposition or execution of the sentence “based on amenability to probation only if the offender presents adequate evidence to the court that the offender has been accepted by, and can respond to, a treatment program[.]” The district court did not stay the execution of respondent’s sentence based on Minn. Stat. § 152.152. And even if the district court had used Minn. Stat. § 152.152, it would have been inappropriate in this case. The record shows that respondent was not amenable to probation—he was uncooperative with probation during preparation of the presentence investigation and tested positive for illegal substances between the plea and sentencing—and he failed to present any evidence that he had been accepted by and could respond to a treatment program.
Based on Bluhm, which involved language virtually identical to that applicable here, the district court did not have discretion to stay execution of respondent’s sentence and place him on probation.
Reversed and remanded.