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,
Edsel Clark Niemi,
Filed November 17, 1998
Sentence vacated and remanded
Carlton County District Court
File No. KX98387
Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Marvin E. Ketola, Carlton County Attorney, Room 202, Carlton County Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for respondent)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.
Edsel Clark Niemi pleaded guilty to possession of a firearm by a felon under Minn. Stat. § 624.713, subd. 1(b) (1996). On appeal, Niemi argues the trial court erred as a matter of law by misinterpreting the statutorily-imposed minimum sentence and imposing a 60-month sentence on him. The state declined to file any argument by formal or informal brief. We vacate the sentence and remand for re-sentencing.
Minn. Stat. § 609.11, subd. 5, establishes mandatory minimum sentences for persons convicted of offenses involving the use or possession of a firearm. That statute provides in relevant part:
(a) Except as otherwise provided in paragraph (b), any defendant convicted of an offense listed in subdivision 9 in which the defendant * * *, at the time of the offense, had in possession or used, * * * a firearm, shall be committed * * * for not less than three years * * *. Any defendant convicted of a second or subsequent offense in which the defendant * * *, at the time of the offense, had in possession or used a firearm shall be committed * * * for not less than five years * * *.
(b) Any defendant convicted of violating section 609.165 or 624.713, subdivision 1, clause (b), shall be committed * * * for not less than 18 months * * *. Any defendant convicted of a second or subsequent violation of either of these sections shall be committed * * * for not less than five years * * *.
Minn. Stat. § 609.11, subd. 5 (emphasis added); see also Minn. Stat. §§ 609.11, subd. 9 (Supp. 1997) (stating crimes for which mandatory minimum sentences shall be served as provided in section 609.11, subdivision 5(a), include assault in second degree and violation of section 624.713, subdivision 1(b)), 624.713, subd. 1(b) (stating person convicted of committing "crime of violence" is ineligible to possess pistol or other firearm unless 10 years have elapsed since person's sentence or disposition expired, or since person was restored to civil rights).
Paragraph (a) creates a general rule; paragraph (b) excepts felon-in-possession cases from the general rule. The plain language of the statute mandates an 18-month minimum sentence for defendants convicted of violating a felon-in-possession statute and a 60-month minimum sentence for defendants convicted of second or subsequent felon-in-possession convictions. Although Niemi has previous convictions, this is his first conviction under the felon-in-possession statutes. Given the plain language of the statute and established principles of statutory construction, we vacate the 60-month sentence and remand to the trial court for resentencing. See Minn. Stat. § 645.08(1) (1996) (requiring construction of statutory words and phrases according to common usage); Minn. Stat. § 645.16 (1996) (forbidding courts from disregarding plain statutory language); State v. Reha, 483 N.W.2d 688, 694 (Minn. 1992) (mandating strict construction of penal statutes).
Sentence vacated and remanded.