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,
Sheldon J. Bell,
Filed September 23, 1997
Reversed and Remanded
Beltrami County District Court
File No. KX96518
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)
Timothy R. Faver, Beltrami County Attorney, P.O. Box 1653, Bemidji, MN 56601 (for respondent)
Sheldon J. Bell, Box 55, Stillwater, MN 55082 (pro se appellant)
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
Appellant challenges the sentence imposed after his guilty plea to felony assault. We reverse and remand.
Although the record does not contain any independent information on this point, appellant asserts in his brief that the felony sentence was executed after a probation violation early this year, with no credit given for the time served on the gross misdemeanor sentence. Appellant now argues that the sentencing court abused its discretion by not giving credit for time served, in effect, imposing the sentences consecutively. Appellant also argues that jail time served should have been credited toward the felony sentence as well as the gross misdemeanor. The state filed no responsive brief on appeal.
I. Departure by Consecutive Sentence
Consecutive sentencing is normally a departure from the sentencing guidelines. Minn. Sent. Guidelines II.F. Sentences for multiple current offenses are presumed concurrent unless the court expressly states that they are consecutive. Minn. Stat. § 609.15, subd. 1 (1996); State v. Rasinski, 527 N.W.2d 593, 595 (Minn. App. 1995).
Here, the transcript does not reflect consideration of consecutive executed sentences, much less any justification for such a disposition. We hold that appellant is entitled to credit for the time served on the gross misdemeanor conviction, as if he had, upon imposition of the gross misdemeanor sentence, immediately begun to serve concurrently the felony sentence.
Our decision on the consecutive sentencing issue means that appellant is entitled to credit toward his felony sentence for all time "served" on the gross misdemeanor. The jail time credited is part of that time. Appellant is therefore entitled to credit toward the felony sentence for jail time applied to the gross misdemeanor sentence. Only in this way can we achieve the effect of concurrent sentencing.
We remand for resentencing in accord with this opinion.
Reversed and remanded.
[ ]1 There is no plea document appearing in the record. However, the state and appellant's attorney spelled out the terms of the agreement at both the plea and sentencing hearings and apparently did not disagree about those terms at any time.