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,
Sylvan Allen Larson, Jr.,
Filed July 8, 1997
St. Louis County District Court
File No. K8-91-675907
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.[*]
In this criminal sentencing appeal, appellant Sylvan Allen Larson, Jr. challenges the district court's correction of his sentences for felon in possession of a firearm and probation violation for conspiracy to commit first-degree murder. Because the sentence corrections were authorized by law and did not violate double jeopardy principles, we affirm.
Ten days after sentencing, the court held a second hearing to correct appellant's sentence, recognizing that the probation revocation sentence was improper because it executed part of the sentence while extending probation for the same offense. The district court resentenced appellant to an 120-month executed sentence for the conspiracy conviction. Appellant claims that the correction of his sentence amounted to an unconstitutional increase of his period of confinement.
A district court may correct or reduce a criminal sentence under the following circumstances:
The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.
Minn. R. Crim. P. 27.03, subd. 9. Because of constitutional double jeopardy concerns, a sentence authorized by law may not be increased, but "an unauthorized sentence can be corrected to conform to statutory provisions." State v. Montjoy, 354 N.W.2d 567, 568 (Minn. App. 1984) (citations omitted). It is unlawful for a district court to "stay only part of a felony sentence while executing the balance." State v. Stacey, 359 N.W.2d 671, 673 (Minn. App. 1994); see Minn. Stat. § 609.10 (1994) (listing sentencing options for felony convictions); id. § 609.14, subd. 3 (1994) (listing sentencing options for probation violations).
We conclude that the district court did not err in correcting appellant's sentence. First, the corrected sentence did not violate double jeopardy principles because it did not amount to an increase from the original sentence. Second, by correcting appellant's sentence, the court did not violate Minn. R. Crim. P. 27.03, subd. 9. Under the rule, the court may correct an unlawful sentence "at any time." Third, the court did not violate the spirit of the rule. The court corrected the sentence within 10 days of its initial decision, before appellant was committed to the Department of Corrections. Thus, the sentence correction did not undermine the goal of finality in sentencing.
[ ]*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[ ]1Because the parties all agreed that the firearm offense was a severity level III, rather than severity level IV, offense under the Sentencing Guidelines, the court later reduced appellant's sentence to 17 months for that offense.