This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Frank E. Holmes,



Filed September 11, 2007


Kalitowski, Judge


Crow Wing County District Court

File Nos. K5-03-2460, K7-01-1743


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Donald F. Ryan, Crow Wing County Attorney, Bruce F. Alderman, Assistant County Attorney, Crow Wing County Judicial Center, 213 Laurel Street, Suite 34, Brainerd, MN 56401 (for respondent)


John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Frank E. Holmes challenges his sentence for felony DWI under Minn. Stat. § 169A.24, subd. 1(1) (2002), arguing that the district court misapplied the sentencing statute and the criminal-history-score provision of the Minnesota Sentencing Guidelines by not applying the statute in effect at the time of his resentencing.  We affirm.



            In March 2004, appellant was convicted of felony DWI under Minn. Stat. § 169A.24, subd. 1(1) (2002), and received an imposed sentence of 66 months, based on a criminal-history score of 5, to be served consecutively to a previously imposed, but stayed, sentence of one year for a gross-misdemeanor DWI offense. 

            On appeal, this court addressed several issues and determined that:

(1) the district court erred in ordering the executed gross misdemeanor sentence to run consecutively to the felony sentence, instead of the other way around; (2) the statutorily mandated consecutive sentence for the felony DWI should be considered presumptively consecutive as defined by Minnesota Sentencing Guidelines II.F because the consecutive sentence was mandatory; and (3) section II.F should be applied, reducing [appellant’s] criminal history score to one to produce a presumptive 42-month stayed felony sentence. 


State v. Holmes, 719 N.W.2d 904, 907 (Minn. 2006) (citing State v. Holmes, 701 N.W.2d 267, 272-73 (Minn. App. 2005) [hereinafter Holmes I]) [hereinafter Holmes II].

            The Minnesota Supreme Court affirmed our determination that appellant’s felony DWI sentence should run consecutively to the executed gross-misdemeanor DWI sentence, but reversed our application of Minn. Sent. Guidelines II.F and remanded for resentencing consistent with its opinion.  Id. at 910. 

            Before the supreme court issued its opinion in Holmes II, the legislature amended the relevant sentencing statute.  The DWI-sentencing statute in effect at appellant’s original sentencing in 2004 mandated consecutive sentencing for DWI convictions

(1) . . . arising out of separate courses of conduct; (2) . . . when the person, at the time of sentencing, is on probation for, or serving, an executed sentence for a [DWI conviction] . . . and the prior sentence involved a separate course of conduct; or (3) . . . another offense arising out of a single course of conduct that is listed in subdivision 2, paragraph (e), when the person has five or more qualified prior impaired driving incidents within the past ten years.


Minn. Stat. § 169A.28, subd. 1 (2002). 

            The legislature amended the statute, effective June 2, 2006, by adding subdivision 1(b) as an exception to the mandatory consecutive sentencing requirement of now-designated subdivision 1(a).  2006 Minn. Laws ch. 260, art. 2, § 4, at 735.  The amendment provides that “[t]he requirement for consecutive sentencing . . . does not apply if the person is being sentenced to an executed prison term for a violation of section 169A.20 (driving while impaired) under circumstances described in section 169A.24 (first-degree driving while impaired).”  Minn. Stat. § 169A.28, subd. 1(b) (2006).

            At resentencing, appellant brought the statutory change to the district court’s attention, but the district court stated: 

This matter is before the Court, however, based on the instructions I received from the Supreme Court in their - - in their decision here.  And as indicated, it states that “The result is that Holmes must first serve his executed one-year gross misdemeanor sentence, then his executed 66-month felony sentence.”  And it was remanded for sentencing consistent with this opinion.  So this Court does not, in its opinion, have the discretion to totally re-do sentencing in this matter, and to re-sentence according to the order of the Supreme Court.  I’m bound by that. 


Referring to the felony sentence, the district court stated that “it remains as previously ordered by the Court as being a consecutive sentence . . . as required by law and the Supreme Court.”

            Appellant argues that the district court was required to apply the 2006 amendments to the statute at resentencing, and that the district court abused its discretion by basing its ruling on the 2002 version of the statute by not acknowledging that it had discretion whether to sentence appellant concurrently at resentencing.  

            We will reverse a district court’s decision regarding sentencing only for a clear abuse of discretion.  State v. Lattimer, 624 N.W.2d 284, 290 (Minn. App. 2001), review denied (Minn. May 15, 2001), abrogated on other grounds by State v. Colby, 657 N.W.2d 897, 899 (Minn. App. 2003).  “A [district] court’s duty on remand is to execute the mandate of the remanding court strictly according to its terms.”  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).

            Here, appellant was convicted and sentenced before the 2006 amendment was effective, and his case was pending on appeal when the 2006 amendment became effective.  But the supreme court declined to apply the 2006 amendment to appellant’s case, stating that:

The duration of Holmes’ sentence under the guidelines, based on a criminal history score of five, including one custody status point, is 66 months.  Holmes’ criminal history score is not amended downward under Minn. Sent. Guidelines II.F because by its terms section II.F does not apply to a section 169A.28 sentence.  The result is that Holmes must first serve his executed one-year gross misdemeanor sentence, then his executed 66-month felony sentence.


Holmes II, 719 N.W.2d at 910 (emphasis added).  Following appellant’s request for reconsideration, the supreme court acknowledged the 2006 amendment, but indicated its unwillingness to apply the statutory change to appellant’s case by stating, “We express no opinion about the recent changes and the effect they will have on sentencing in future cases similar to Holmes’.”  Holmes II, 719 N.W.2d at 909 n.9 (emphasis added).  The supreme court then remanded the case to the district court to resentence appellant consistent with its opinion.  Id. at 910.

            We conclude that the language employed by the supreme court limited the scope of remand by removing any discretion the district court might have otherwise had in determining appellant’s sentence.  See Duffey, 432 N.W.2d at 476.  Accordingly, we conclude that the district court did not err by resentencing appellant as it did, and therefore, appellant’s additional arguments are rendered moot.