This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-994

State of Minnesota,

Respondent,

vs.

Sheldon J. Bell,

Appellant.

Filed September 23, 1997

Reversed and Remanded

Davies, Judge

Beltrami County District Court

File No. KX96518

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Timothy R. Faver, Beltrami County Attorney, P.O. Box 1653, Bemidji, MN 56601 (for respondent)

Sheldon J. Bell, Box 55, Stillwater, MN 55082 (pro se appellant)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.

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

DAVIES, Judge

Appellant challenges the sentence imposed after his guilty plea to felony assault. We reverse and remand.

FACTS

On October 8, 1996, appellant pleaded guilty, on unrelated incidents, to fifth-degree gross misdemeanor assault and fifth-degree felony assault. The felony plea reflected a negotiated reduction of the charge from second-degree assault. According to the plea agreement, appellant was to be sentenced to one-year imprisonment for the gross misdemeanor charge, with credit for time already served and an opportunity to be released to inpatient treatment for the last month of his term.[1] As to the felony charge, the agreement contemplated a double upward durational departure. Appellant was to receive no credit against that sentence for any time served on the gross misdemeanor charge. The only issue left open for the sentencing court was whether the felony sentence would be stayed or executed. The court imposed a stayed sentence of 2 years, 6 months, on the felony, as appellant had agreed.

Although the record does not contain any independent information on this point, appellant asserts in his brief that the felony sentence was executed after a probation violation early this year, with no credit given for the time served on the gross misdemeanor sentence. Appellant now argues that the sentencing court abused its discretion by not giving credit for time served, in effect, imposing the sentences consecutively. Appellant also argues that jail time served should have been credited toward the felony sentence as well as the gross misdemeanor. The state filed no responsive brief on appeal.

D E C I S I O N

I. Departure by Consecutive Sentence

Appellant claims the sentencing court erred by executing the full 30 months of his felony sentence upon revocation of probation. He argues that, had the sentence been executed immediately, it would have been concurrent with the gross misdemeanor sentence because the sentencing court did not justify consecutive sentencing. In short, he claims that he is entitled to credit for the time he spent imprisoned on the gross misdemeanor sentence--the amount of time for which he would have been serving the sentences concurrently.

Consecutive sentencing is normally a departure from the sentencing guidelines. Minn. Sent. Guidelines II.F. Sentences for multiple current offenses are presumed concurrent unless the court expressly states that they are consecutive. Minn. Stat. § 609.15, subd. 1 (1996); State v. Rasinski, 527 N.W.2d 593, 595 (Minn. App. 1995).

Here, the transcript does not reflect consideration of consecutive executed sentences, much less any justification for such a disposition. We hold that appellant is entitled to credit for the time served on the gross misdemeanor conviction, as if he had, upon imposition of the gross misdemeanor sentence, immediately begun to serve concurrently the felony sentence.

II. Jail Credit

Appellant was jailed for a significant time prior to sentencing. He was given credit for that entire time, but the credit was applied only to the gross misdemeanor sentence. He now claims that it should also have been applied to his felony sentence.

Our decision on the consecutive sentencing issue means that appellant is entitled to credit toward his felony sentence for all time "served" on the gross misdemeanor. The jail time credited is part of that time. Appellant is therefore entitled to credit toward the felony sentence for jail time applied to the gross misdemeanor sentence. Only in this way can we achieve the effect of concurrent sentencing.

We remand for resentencing in accord with this opinion.

Reversed and remanded.

[ ]1 There is no plea document appearing in the record. However, the state and appellant's attorney spelled out the terms of the agreement at both the plea and sentencing hearings and apparently did not disagree about those terms at any time.