This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




LaDale Floyd, petitioner,



State of Minnesota,


Filed March 31, 1998


Schumacher, Judge

Hennepin County District Court

File No. 96065381

LaDale Floyd, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.



The district court denied appellant LaDale E. Floyd's petition for postconviction relief. Floyd appealed to this court, requesting a dispositional departure from the Minnesota Sentencing Guidelines. We affirm.


Floyd pleaded guilty to the charge of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1996). In return for Floyd's guilty plea, the prosecutor offered him 45 months. The prosecutor noted that the offer was one-third less than the sentencing guidelines' recommended sentence. After consulting with his attorney, Floyd accepted and signed a plea petition reflecting this agreement.

At the time of the plea, Floyd's attorney reviewed the plea petition with him on the record. Floyd acknowledged that he had sufficient time to discuss the facts of the case and his rights with his attorney. He also acknowledged on the record he understood that by pleading guilty he was giving up the following rights: (1) to have a probable cause hearing, (2) to dispute the state's evidence against him; (3) to have a jury trial; (4) to cross-examine the prosecutor's witnesses; and (5) to call witnesses on his behalf.

Floyd's attorney and the prosecutor reviewed the facts on the record. Floyd indicated that he understood the maximum sentence that he could receive on this charge was 360 months in prison and/or a $40,000 fine. Based on the above information, the district court accepted Floyd's plea and sentenced him to 45 months. Floyd appeals.


The decision of a postconviction court will not be disturbed absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The petitioner has the burden in a postconviction proceeding to establish a basis for the relief requested. Minn. Stat. § 590.04, subd. 3 (1996).

The only issue raised by Floyd is whether his sentence should be modified from prison to probation. Floyd alleges that the district court abused its discretion by committing him to prison in lieu of probation and treatment because the court ignored the recommendations of the victim and the probation department and the statute allows offenders to be placed on probation with treatment. Minn. Stat. § 609.342, subd. 3(b) (1996).

The district court denied Floyd's postconviction relief petition because it found there was no substantial and compelling reason to warrant the relief requested in the form of a dispositional departure. See State v. Bellanger, 304 N.W.2d 282, 283 (Minn. 1981) (summarizing approach court should take in determining when to depart).

Floyd was convicted of criminal sexual conduct in the first degree. The statute provides for the following penalty:

A person convicted under subdivision 1 may be sentenced to imprisonment for not more than 30 years or to a payment of a fine of not more than $40,000, or both.

Minn. Stat. § 609.342, subd. 2 (1996). It appears that Floyd's assertion that he should have been sentenced to probation and required to complete a treatment program is derived from Minn. Stat. § 609.342, subd. 3 (1996), which provides:

Except when imprisonment is required under section 609.346, if a person is convicted under subdivision 1, clause (g), the court may stay imposition or execution of the sentence if it finds that:

(a) a stay is in the best interest of the complainant or the family unit; and

(b) a professional assessment indicates that the offender has been accepted by and can respond to a treatment program.

If the court stays imposition or execution of sentence, it shall include the following as conditions of probation:

(1) incarceration in a local jail or workhouse;

(2) a requirement that the offender complete a treatment program; and

(3) a requirement that the offender have no unsupervised contact with the complainant until the offender has successfully completed the treatment program.

This subdivision, however, does not entitle a defendant to a dispositional departure. Moreover, the statute only applies to offenders convicted under subdivision 1(g), which reads:

The actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Minn. Stat. § 609.342, subd. 1(g) (1996). Floyd pleaded guilty and was convicted under Minn. Stat. § 609.342, subd. 1(a), which reads:

The complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Minn. Stat. § 609.342, subd. 1(a) (1996). Minn. Stat. § 609.342, subd. 1(a), does not entitle Floyd to probation and treatment. The district court had no authorization under the statute to stay execution of his sentence. The sentence of 45 months stands.

Because Floyd failed to file a motion for acceptance of a late reply brief, his reply brief is rejected.