State of Minnesota,






Robert Allen Shattuck,






            Based upon all the files, records and proceedings herein,

            IT IS HEREBY ORDERED that the petition for rehearing of respondent State of Minnesota be, and the same is, granted for the limited purpose of amending the court’s opinion filed August 18, 2005, as follows.

            1.         The carryover sentence on pages 19-20 of the slip opinion is amended, and a new footnote added, to read:

Because section 609.109, subdivision 4, and Minn. Sent. Guidelines II.D authorize the district court to make such an unconstitutional upward durational departure upon finding an aggravating factor without the aid of a jury, we hold that the statute is facially unconstitutional and section II.D of the guidelines is unconstitutional as applied.[10]


[10]    The traditional rule is that a law is facially unconstitutional only if it is unconstitutional in all of its applications.  See United States v. Salerno, 481 U.S. 739, 745 (1987) (to succeed in facial challenge, challenger “must establish that no set of circumstances exists under which the Act would be valid”).  Appellant has not demonstrated that Minn. Sent. Guidelines II.D is unconstitutional in all of its applications, because a section not before us today, which provides for imposition of an upward departure based on the fact of a prior conviction, could be determined to be constitutional.  See Minn. Sent. Guidelines II.D.2.b(3) (listing as aggravating factor fact that defendant’s current and past felony convictions are for criminal sexual conduct or offense in which victim was otherwise injured).  The presence of this aggravating factor is insufficient to trigger sentencing under the repeat sex offender statute.  Minn. Stat. § 609.109, subd. 4(a)(2)(i) (2004).




2.         The remaining footnotes in the opinion are renumbered accordingly.


            3.         The last full paragraph and footnote of the opinion, on page 30, are amended to read:

            We reverse the decision of the court of appeals and remand this case to the district court for resentencing consistent with this opinion.[17]


[17]    We note that the legislature has recently enacted significant new requirements for aggravated sentencing departures, including sentencing juries and bifurcated trials, and that these changes apply both prospectively and to resentencing hearings.  Act of June 2, 2005, ch. 136, art. 16, §§ 3-6, 2005 Minn. Laws ___, ___.  We express no opinion about these recent changes, and do not foreclose the district court from considering any constitutionally applicable and/or available laws on remand.



            Dated:   October 6, 2005

                                                                                    FOR THE COURT:





                                                                                    Kathleen A. Blatz

                                                                                    Chief Justice