This opinion will be unpublished and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

C2-97-2079

State of Minnesota,

Respondent,

vs.

David Allen Pawielski,

Appellant.

Filed March 10, 1998

Affirmed

Lansing, Judge

St. Louis County District Court

File No. KX96600046

Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Alan L. Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

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

LANSING, Judge

This appeal raises the single issue of whether a Wisconsin withheld sentence is a stay of adjudication or a stay of imposition of sentence for purposes of computing a criminal history score in sentencing a Minnesota crime. We affirm the district court's assessment of the withheld sentence as a conviction with a stay of imposition.

FACTS

David Pawielski pleaded guilty to two counts of first degree aggravated robbery. The sentencing court found that he had a criminal history score of three and sentenced him based on that score.

Pawielski appeals his sentence, contending that his criminal history score was erroneously calculated as three rather than two because the district court incorrectly assessed a felony point for a Wisconsin offense. For the Wisconsin offense, operating a motor vehicle without consent, Pawielski received a withheld sentence of six months incarceration and three years probation.

D E C I S I O N

Under the Minnesota Sentencing Guidelines, the presumptive sentence is determined in part by the offender's previous criminal history. Minn. Sent. Guidelines II.B. In a criminal prosecution in Minnesota, a stay of imposition of sentence necessarily entails a conviction and is treated as a conviction for purposes of the sentencing guidelines. Minn. Sent. Guidelines II.B.03(1); State v. Strom, 430 N.W.2d 860, 864 (Minn. App. 1988). But a stay of adjudication, by definition, does not result in a conviction and thus in the highly unusual circumstance in which a defendant is on probation for a stayed adjudication offense, the defendant would not be assessed a criminal history point. See Minn. Sent. Guidelines cmt. II.B.109 (an offense upon which a judgment of guilty has not been entered before the current sentencing shall not be assigned any weight when calculating offender's criminal history score); State v. Roloff, 562 N.W.2d 29, 31 (Minn. App. 1997). The act for which Pawielski was convicted in Wisconsin constitutes a felony under Minnesota law. See Minn. Stat. §§ 609.52, subd. 3(2) (Supp. 1997) (theft of property worth over $2500); 609.52, subd. 3(3)(d)(v) (theft of a motor vehicle). It is not disputed in this appeal that if the Wisconsin disposition constituted a conviction it would add one point to Pawielski's criminal history score.

The state provided the sentencing judge with information from the Wisconsin Department of Probation and Parole that a withheld sentence results in a conviction. The record contains no evidence that contradicts this submission. The evidence is uncontroverted that Pawielski was on probation for a Wisconsin conviction on which the imposition of sentence was stayed, but not the adjudication. This disposition constitutes a conviction. See Strom, 430 N.W.2d at 864. The Minnesota sentencing court properly assessed one point for the Wisconsin offense and properly calculated Pawielski's criminal history score as three rather than two.

Affirmed.