This opinion will be unpublished and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

CX-96-1848

State of Minnesota,

Respondent,

vs.

Raciel Proenza Zaldivar,

Appellant.

Filed December 17, 1996

Reversed

Schumacher, Judge

Kandiyohi County District Court

File No. K496496

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

Boyd A. Beccue, Kandiyohi County Attorney, Jennifer K. Fischer, Assistant County Attorney, 316 Southwest Fourth Street, Post Office Box 1126, Willmar, MN 56201 (for Respondent)

Timothy S. Johnson, Eighth Judicial District Public Defender, William H. McKibbin, Assistant Public Defender, 432 West Litchfield Avenue, Willmar, MN 56201 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

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

SCHUMACHER, Judge

Raciel Proenza Zaldivar appeals his sentence from a conviction for disorderly conduct, arguing the district court erred in ordering him to provide a DNA sample. We reverse.

FACTS

Zaldivar, originally charged with criminal sexual conduct in the fifth degree, pleaded guilty to an amended charge of disorderly conduct. At the plea and sentencing hearing, Zaldivar admitted to hugging a female resident of his apartment complex. Zaldivar appeals only that part of the district court's sentence ordering him to provide a biological sample for testing.

D E C I S I O N

Minn. Stat. § 609.3461 (1996), entitled "DNA Analysis of Sex Offenders Required," states that, upon sentencing, the district court "shall order an offender to provide a biological specimen for the purpose of DNA analysis" when

(1) the court sentences a person charged with violating or attempting to violate section 609.342, 609.343, 609.344, or 609.345, [first- through fourth-degree criminal sexual conduct] who is convicted of violating one of those sections or of any offense arising out of the same set of circumstances;

(2) the court sentences a person as a patterned sex offender under section 609.1352; * * *

Id., subd. 1.

Unless the defendant is convicted of one of the enumerated sex offenses, a DNA sample cannot be ordered as part of the sentence. The district court agreed that the applicable statute did not require a DNA sample after a disorderly conduct conviction, but felt it was in the best interest of justice to order the sample. We conclude it was an abuse of discretion for the district court to order the DNA sample and that part of the sentencing order is reversed.

Reversed.