This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).


State of Minnesota,


James Allen Martin,

Filed July 16, 1996
Lansing, Judge

Becker County District Court
File No. K891912

Hubert H. Humphrey III, Attorney General, Suite 1400, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent).

Joseph A. Evans, Becker County Attorney, Michael D. Fritz, Assistant County Attorney, 910 Lincoln Avenue, Post Office Box 743, Detroit Lakes, MN 56502 (for Respondent).

Mark D. Nyvold, Suite 654, 386 North Wabasha, St. Paul, MN 55102 (for Appellant).

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Davies, Judge.

U N P U B L I S H E D   D E C I S I O N


This is an appeal from the revocation of a stay of execution on a sentence for second degree assault. The record supports the district court's finding that the conditions for the stay were violated, and it was within the court's discretion to execute the stayed thirty-six-month prison sentence. We affirm.


James Martin pleaded guilty to two counts of second degree assault. The district court sentenced him to an executed seventy-two-month prison sentence on the first count and a stayed, consecutive thirty-six-month sentence on the second. The stay of execution on the second charge was conditioned on Martin successfully completing the first available psychological treatment program. This court affirmed Martin's sentence. State v. Martin, No. C9-92-987 (Minn. App. Jan. 12, 1993), review denied (Minn. March 11, 1993).

Martin did not successfully complete psychological treatment during his seventy-two-month prison term. Immediately before Martin's conditional release from prison, the Department of Corrections notified the district court that Martin had not complied with the psychological treatment provision. In December 1995 the district court determined that Martin had violated the conditions imposed at his February 1992 sentencing and it therefore executed the thirty-six-month stayed sentence. Martin appeals the execution of his sentence.


The district court has great discretion when deciding whether to revoke a stay of execution and will be reversed only when revocation is a clear abuse of discretion. State v. Fritsche, 402 N.W.2d 197, 201 (Minn. App. 1987) (citing State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)). It is within the court's discretion to revoke a stay of execution "[w]hen it appears that the defendant has violated any of the conditions of probation or intermediate sanction, or has otherwise been guilty of misconduct which warrants the imposing or execution of sentence * * * ." Minn. Stat. ' 609.14, subd. 1 (1994 & 1995 Supp.). Intermediate sanctions include psychological treatment. Minn. Stat. ' 609.135, subd. 1 (1994 & 1995 Supp.).

Martin does not dispute that he failed to complete psychological treatment but argues that the district court impermissibly extended the duration of his stay of execution by imposing probation conditions before the probationary sentence began. But the district court required completion of psychological treatment as a condition of the stay of execution, not as a condition of probation. Martin challenges this characterization as violating the permissible duration of a stayed sentence. A stay of execution may not exceed the duration of the maximum sentence for an offense. Minn. Stat. ' 609.135, subd. 2(a). The maximum sentence for second degree assault at the time of Martin's sentencing was seven years. Minn. Stat. ' 609.222 (1990).

Assuming, for purposes of this analysis, that all of Martin's legal assertions are correct, the district court still has not impermissibly extended the duration of the stay of execution. Even if Martin serves the entire thirty-six-month sentence in prison, less than seven years will have elapsed since the district court imposed Martin's February 1992 sentence. The district court's execution of Martin's sentence does not extend the period of that sentence beyond its seven-year limit. The district court did not abuse its discretion by executing the thirty-six-month sentence.