may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Florendo Tolentino Castillo,
Filed January 14, 1997
Affirmed in part, reversed in part,
Anoka County District Court
File No. J1-95-9595
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (For Appellant)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
Florendo Castillo appeals from a judgment of conviction and sentence for gross misdemeanor criminal damage to property and misdemeanor tampering with a motor vehicle. Minn. Stat. SSSS 609.595, subd. 2(a) and 609.546(2) (1994). Because he has shown no prejudice from the discovery, but the trial court improperly imposed multiple sentences, we affirm in part, reverse in part, and remand for resentencing.
Castillo, who was charged with causing more than $250 in damages to the vehicle, merely objected to admission of the evidence. He did not request a continuance, or even a brief recess to examine the documents. Nor did he seek to require the state to establish on the record the reasons for the alleged nondisclosure or how long the state had the documents without disclosing them. See id. (factors relevant to the trial court's choice of sanction for discovery violation). Castillo thus did not give the trial court an opportunity to exercise its discretion under Lindsey to choose among alternative sanctions, nor did he make a record from which this court could find that the trial court abused its discretion. Castillo has also failed to show that there is a reasonable probability that the result would have been different had the evidence been disclosed in a more timely fashion. See State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988).
Castillo entered and caused damage to the vehicle without the owner's permission at the same time and in the same place. See Minn. Stat. SSSS 609.546 (tampering committed by entering vehicle without owner's permission); 609.595, subd. 1 (criminal damage to property requires intentionally causing damage to another's property). Castillo also had the same objective with regard to each offense: to steal the radio, which he had begun to dismantle. The tampering thus is indistinguishable from the criminal damage to property, with respect to time and place, as well as the criminal objective. Although we conclude that multiple sentencing was improper, we must remand for resentencing, because the trial court has discretion to determine which sentence to vacate when one of multiple sentences imposed must be vacated under Minn. Stat. § 609.035. See State v. Alt, 529 N.W.2d 727, 731 (Minn. App. 1995), review denied (Minn. July 20, 1995).
Affirmed in part, reversed in part and remanded.