may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
Jacquelyn Ann Trettin,
File No. K6971178
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for appellant)
Boyd Beccue, Kandiyohi County Attorney, Jeffery S. Thompson, Assistant County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for appellant)
Curt Reese, P. O. Box 56, Olivia, MN 56277 (for respondent)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.
In an appeal from sentencing, the state challenges a downward durational departure on a felony theft conviction. We conclude that the district court's written findings, filed two days after sentencing, satisfied the requirements for departure, and we affirm.
Trettin's offense is categorized as a severity level III offense. Minn. Sent. Guidelines V. With a criminal history score of zero, Trettin's presumptive guideline sentence was one year and one day stayed. The presentence investigation report recommended 30 days in jail and administrative probation for one year. The district court departed from the presumptive sentence by imposing an executed sentence of 30 days. At the time it imposed sentence, the court stated that Trettin's offense was a situational impulsive act that was adequately punished by 30 days in jail and that administrative probation was not required. Two days after the sentencing hearing, the district court filed a two-page written statement of its reasons for departing. The state appeals the sentence.
The state challenges the validity of the departure, first, because the court did not state its reasons on the record at the sentencing hearing. We agree that proper sentencing procedure requires an on-record statement of reasons for any guidelines departure at the time of sentencing. Minn. R. Crim. P. 27.03, subd. 4(C); Williams v. State, 361 N.W.2d 840 (Minn. 1985). An essential purpose of the Williams rule is to avoid handicapping the defendant in evaluating and preparing an appeal. State v. Pendzimas, 379 N.W.2d 247, 248 (Minn. App. 1986), review denied (Minn. Mar. 14, 1986) (requiring resentencing when no stated reasons and report filed four months after sentencing).
The state has not argued that its appeal rights were prejudiced by the court's making a very general statement explaining its departure at sentencing and following up two days later with a specific written report. The two pages of written findings set forth the reasons the district court concluded that 30 days in jail was adequate punishment in light of the course of conduct underlying Trettin's offense. Trettin's account of her conduct remained the same from her explanation to the police officer immediately after the incident through the trial, presentence investigation, and sentence. Under these circumstances, the district court's two-day lapse in providing specific reasons for the departure is not reversible error.
The state argues, secondly, that the district court failed to provide adequate notice of its intent to depart. Again we agree that proper sentencing procedure requires the court to notify the state of its intent to depart. Minn. R. Crim. P. 27.03, subd. 1(C) (stating that court should notify parties if a departure appears appropriate). But we note that the presentence report alerted the state to a departure by recommending a nonfelony disposition -- 30 days in jail and administrative probation for one year. See Minn. Sent. Guidelines cmt. 11.C.05 (imposing misdemeanor sentence on felony conviction is departure). The district court determined for reasons stated on the record that Trettin did not require administrative probation. The probation officer who prepared the report was present at the hearing. The state had an opportunity to argue against the contents of the report and to present its own arguments. The state, in fact, argued that Trettin should serve 90 rather than 30 days in jail.
Significantly, the state did not request a continuance or a formal hearing to prepare arguments against the departure. See Minn. R. Crim. P. 27.03, subd. 1(D) (allowing formal sentencing hearing after notice of departure). We further note that the state has not indicated on appeal what material, if any, it was unable to present. Although at one juncture the court apparently believed the offense was a gross misdemeanor, that misunderstanding was corrected and the findings clearly indicate the court's knowledge that the offense was a felony. Because the state did not object or ask for a continuance, we decline to order a resentencing for lack of notice. Minn. R. Crim. P. 27.03, subd. 4(D) (stating that either party may request sentencing hearing if one was not held and court did not give notice of intent to depart).
Sentencing Trettin to 30 days' incarceration does result in a downward durational departure from the one year and one day presumptive sentence. The sentence is also an upward departure in that the sentence is to be served rather than stayed. But Trettin has not appealed, and we do not address, that aspect of the departure. The district court found that Trettin's offense was a situational offense unlikely to reoccur. It further found that the items taken were of little value by themselves, of no value to Trettin, and were all returned. These factors support the district court's downward durational departure. State v. Back, 341 N.W.2d 273, 276 (Minn. 1983) (allowing course of conduct underlying charge to be considered as a basis for durational departure); State v. Myers, 416 N.W.2d 736, 738 (Minn. 1987) (holding value of stolen property relevant to durational departure). The district court did not abuse its discretion when it departed from the presumptive sentence.