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,
John Patrick Murphy,
Filed November 10, 1997
Reversed and Remanded
Ramsey County District Court
File No. K4-93-2832
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Ass't County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Evan W. Jones, Ass't State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.
This appeal is from an order denying appellant John Patrick Murphy's motion to execute his 1994 stayed sentence for terroristic threats. We reverse and remand.
This court affirmed Murphy's conviction and sentence on direct appeal, and the supreme court affirmed. State v. Murphy, C3-94-1931 (Minn. App. Apr. 18, 1995), aff'd 545 N.W.2d 909 (Minn. 1996). Murphy later filed a motion requesting execution of his concurrent stayed sentence on the single-count complaint. By order filed on December 4, 1996, the trial court denied the motion.
The trial court concluded that Murphy could not demand execution of sentence, in part because he had agreed to the concurrent probationary sentence. A defendant may waive his right to be sentenced under the guidelines presumptive sentence. State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). But such a waiver must be knowing, intelligent, and voluntary. Id. Murphy did not waive his right to demand execution of a sentence. The existence of such a right was not mentioned at either the guilty plea hearing or the sentencing hearing. We do not believe that Givens supports the state's argument that Murphy implicitly waived the right to demand execution, a right of which he was never notified. Cf. State v. Sims, 553 N.W.2d 58, 61 (Minn. App. 1996) (defendant who agreed to departure and was advised of presumptive sentence validly waived guidelines sentence), review denied (Minn. Oct. 29, 1996).
The only situation in which the defendant has been held not to have the right to demand execution of sentence is after probation has already been revoked for a violation of the conditions of probation. Bail v. State, 391 N.W.2d 8, 10 (Minn. App. 1986), review denied (Minn. Sept. 22, 1986). Murphy, in his pro se supplemental brief, appears to claim that the state has attempted to revoke his probation. But there is no record of a probation revocation proceeding in the trial court file. We reverse and remand for execution of the 60-month concurrent probationary sentence.
Reversed and remanded.