This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1618

State of Minnesota,

Appellant,

vs.

Lonn Steven Anderson,

Respondent.

Filed December 24, 1996

Reversed and Remanded

Davies, Judge

Scott County District Court

File No. 9509114

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Appellant)

Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Conrad J. Skonieczny, Assistant Scott County Attorneys, 206 Scott County Courthouse, 428 S. Holmes St., Shakopee, MN 55379 (for Appellant)

Lonn Steven Anderson, 4205 Woodstock, Golden Valley, MN 55422 (Pro Se Respondent)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

The district court, relying on Minn. Stat. 152.18, subd. 1, deferred further proceedings in favor of probation after respondent's guilty plea to possession of a controlled substance in the third degree. The State appeals. We reverse and remand.

FACTS

Under an Alford-Goulette plea, respondent Lonn Steven Anderson pleaded guilty to possession of a controlled substance in the third degree in violation of Minn. Stat. § 152.023, subd. 2 (1994). The district court, after reviewing the presentence investigation report and hearing from respondent, committed respondent to the Department of Corrections for a period of 21 months, but stayed the commitment and entry of the conviction. The court placed respondent on probation for five years provided he serve 90 days on electronic home monitoring, have a chemical dependency evaluation, pay a $1,000 fine, forfeit the money found on his person, and remain law-abiding. Upon the successful completion of probation, the charge was to be dismissed pursuant to Minn. Stat. § 152.18, subd. 1 (1994).

D E C I S I O N

Generally, a reviewing court will not reevaluate a sentencing court's disposition if "discretion has been properly exercised and the sentence is authorized by law." State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980). Statutory construction is a question of law that this court reviews de novo. State v. Zacher, 504 N.W.2d 468, 470 (Minn. 1993).

Here, the district court acted pursuant to Minn. Stat. § 152.18, subd. 1. The purpose of that statute is "to give a 'second chance' to those found guilty of relatively minor offenses involving possession of a controlled substance." State v. Ender, 467 N.W.2d 39, 41 (Minn. App. 1991). The statute provides:

If any person is found guilty of a violation of section 152.024, 152.025, or 152.027 for possession of a controlled substance, after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of the person, defer further proceedings and place the person on probation upon such reasonable conditions as it may require and for a period, not to exceed the maximum sentence provided for the violation. * * * If during the period of probation the person does not violate any of the conditions of the probation, then upon expiration of the period the court shall discharge the person and dismiss the proceedings against that person.

Minn. Stat. § 152.18, subd. 1. The cross-referenced statutory provisions pertain to the sale or possession of a controlled substance in the fourth and fifth degrees and the sale or possession of other minor controlled substance offenses. Third-degree possession is not included.

The district court stated that it was proceeding under Minn. Stat. § 152.18, subd. 1, because of respondent's clean record and the circumstances involved in the case. These circumstances include the fact that respondent entered an Alford-Goulette plea, only a small amount of cocaine was found in the vehicle driven by respondent, the vehicle had been borrowed from an individual with an extensive record of drug-related offenses, respondent himself had no prior criminal record and had enrolled in a drug counseling program, and respondent was a supportive father, both emotionally and financially, to his four-year-old daughter. Based on these circumstances, the district court expressed a desire to allow respondent to keep his record clean.

On appeal, the State argues that--notwithstanding the above reasons for leniency--Minn. Stat. § 152.18, subd. 1, is a form of extraordinary relief, the legislature did not extend the relief to third-degree controlled substance possession charges, and the district court's action therefore violates the separation of powers.

The language of Minn. Stat. § 152.18, subd. 1, makes clear that it does not apply to a plea of guilty to possession of a controlled substance in the third degree. The district court thus abused its discretion when it applied the statute in this case.

The district court's action is likewise not authorized under the sentencing guidelines. Based on a criminal history score of zero, the presumptive sentence for this offense is a stayed sentence of 21 months, with the court having the discretion to impose up to a year in jail or non-jail sanctions as conditions of probation. Minn. Sent. Guidelines IV. Further, the district court made no findings that substantial and compelling circumstances exist warranting a downward departure from the presumptive sentence under the guidelines. See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (holding that the trial court may depart from the presumptive sentence only upon written findings of "substantial and compelling circumstances"), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774, 777 n.4 (Minn. 1996).

We remand this matter for sentencing consistent with this opinion. Having concluded that the district court's disposition is unauthorized by law, we do not address appellant's other arguments.

Reversed and remanded.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, SS10.