This opinion will be unpublished and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
Phillip Craig Weyaus,
Filed August 15, 2006
Reversed and remanded
Sherburne County District Court
File No. K7-05-667
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney
General, 800 Bremer Tower, 445 Minnesota Street, St. Paul,
Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for appellant)
John Stuart, State Public
Defender, Michael W. Kunkel, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from Phillip Weyaus’s first-degree
driving-while-impaired sentence, the state argues that the district court erred
by relying on this court’s decision in State
v. Holmes, 701 N.W.2d 267 (
On March 25, 2005, an officer stopped Phillip Weyaus’s vehicle for speeding. Weyaus failed sobriety tests and was later charged with first-degree driving while impaired (DWI), first-degree test refusal, driving after cancellation, violation of a restricted driver’s license, and reckless driving. In July 2005, Weyaus pleaded guilty to the first-degree DWI charge in exchange for dismissal of the other charges.
Previously, on March 2, 2005, Weyaus had been sentenced for a separate DWI offense that had occurred in October 2004. In that case, the district court stayed his sentence and placed Weyaus on probation for four years. But because of the new offense, Weyaus’s probation was revoked, and the sentence for the earlier offense was executed in September 2005.
In October 2005, the sentencing that is now challenged occurred for Weyaus’s March 25, 2005, DWI offense. In this proceeding, the presentence investigation calculated Weyaus’s criminal-history score as three. With that score, Weyaus’s presumptive sentence would be 54 months’ imprisonment. Weyaus argued that based on this court’s decision in State v. Holmes,701 N.W.2d 267 (Minn. App. 2005), a criminal-history score of one should have been used. The district court agreed with Weyaus that Holmes mandated a criminal-history score of one, and, using that lowered criminal-history score, the district court sentenced Weyaus to the presumptive stayed sentence of 42 months, to be servedconsecutiveto the executed March 2 sentence. The state appeals from the sentencing order, arguing that this court’s decision in Holmes should not be followed and that the district court used an incorrect criminal-history score.
D E C I S I O N
Interpretation of the Minnesota Sentencing
Guidelines is a question of law, which we review de novo. State
v. Watkins, 650 N.W.2d 738, 741 (
Weyaus was convicted of first-degree DWI
supreme court, however, recently reversed our decision in Holmes. State v. Holmes, __ N.W.2d __ (
the district court relied on precedent that has since been overturned, we
reverse and remand for resentencing in accordance with State v. Holmes, __ N.W.2d. __ (
Reversed and remanded.