Opinion
No. C9-98-2350.
Filed June 1, 1999.
Appeal from the District Court, Blue Earth County, File No. K4-98-1565.
Mike Hatch, Attorney General, and
Ross E. Arneson, Blue Earth County Attorney, Patrick R. McDermott, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant argues the district court erred when its stated reason for departing from the presumptive sentence was that a double durational departure would give appellant more incentive to comply with probationary terms. In addition, appellant argues the district court erred when it refused to grant him 60 days of jail credit because the sentence imposed was not consecutive to any prior sentence. We reverse and remand on both issues.
FACTS
Appellant Jeffery Clarence King was charged in Blue Earth County District Court with one count of perjury. Minn. Stat. § 609.48, subds. 1(1), 4(2) (1998). According to the testimony at the plea hearing, King filed a false affidavit in support of an application for a restraining order against his former girlfriend. King was attempting to "get even" with his former girlfriend after learning that she was planning to seek a restraining order against him.
King pleaded guilty and the district court sentenced him to a stayed sentence of 30 months' imprisonment and placed him on five years' probation. The presumptive sentence for perjury is a 15-month stayed sentence. The district court stated that because of King's "unamenability to probation," the longer sentence might encourage him to comply with the terms of probation.
DECISION
The state concedes that the district court erred when it sentenced King to a double durational upward departure for the stated reason that the longer sentence would give King more incentive to comply with the terms of probation.
A sentencing court may depart from the presumptive sentence under the guidelines only if the case involves "substantial and compelling circumstances." Minn. Sent. Guidelines II.D. Only if such circumstances are present does the district court have the discretion to depart from the sentencing guidelines. State v. Best , 449 N.W.2d 426, 427 (Minn. 1989). The district court abuses its discretion when the reasons given for departure are improper or inadequate and the evidence in the record is insufficient to justify the departure. Williams v. State , 361 N.W.2d 840, 844 (Minn. 1985). Imposition of an upward durational departure as an incentive to complete probation is an inappropriate reason to justify a departure from the guidelines. See State v. Fields , 423 N.W.2d 390, 392 (Minn. 1988) (imposing double durational departure to induce defendant to successfully complete treatment is not valid basis for departure under sentencing guidelines); State v. Dillener , 336 N.W.2d 268, 269 (Minn. 1983) (holding defendant's unamenability to probation and court's desire to give defendant incentive to make restitution are not valid grounds for double durational departure). As the state and the appellant agree, we conclude that the district court erred when it imposed an upward durational departure as an incentive for King to complete the terms of probation. We reverse and remand to the district court to impose the presumptive sentence.
The remaining issue is whether the district court erred when it refused to grant King 60 days of jail credit. When imposing a sentence, a district court
[s]hall assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.
Minn.R.Crim.P. 27.03, subd. 4(B). "Generally, a criminal defendant is entitled to credit for any time spent in jail between the time of arrest and sentencing." State v. Anderson , 520 N.W.2d 184, 187 (Minn.App. 1994) (citation omitted). Jail credits are to be determined on a case-by-case basis and are governed by principles of fairness and equity. State v. Parr , 414 N.W.2d 776, 779 (Minn.App. 1988), review denied (Minn. Jan. 15, 1998). The district court must ensure that the denial of credit "does not result in a de facto upward sentencing departure with respect to consecutive service." State v. Fritzke , 521 N.W.2d 859, 861 (Minn.App. 1994) (citing State v. Folley , 438 N.W.2d 372, 374 (Minn. 1989)). "[T]he amount of credit awarded should not turn on irrelevant concerns or on factors subject to manipulation by the prosecution." Id. (citing State v. Goar , 453 N.W.2d 28, 29-30 (Minn. 1990)). When consecutive sentences are imposed, credit is applied only to the first sentence. Anderson , 520 N.W.2d at 187. The decision to grant jail credit is not within the district court's discretion. Fritzke , 521 N.W.2d at 861.
King was arrested for perjury on May 26, 1998. On August 17, 1998, King was sentenced on an escape-from-custody charge to 90 days in jail, to be served consecutive to his prior escape-from-custody offense. Then, during the later sentencing on the perjury charge, November 13, 1998, King requested that he be given credit for time served beginning from the time he was arrested on May 26, 1998. The state insisted that King should not receive credit for the time served on the escape-from-custody charge, which was 60 days (90 days less 30 days for good time). The state argues it was a sentence consecutive to the sentence he was serving at the time he escaped. The district court agreed, and ordered that King be given credit for 112 days only, instead of 172 days. Appellant argues he is entitled to the full 60 days. We agree.
Under the sentencing guidelines, a conviction for perjury is not a crime for which presumptive consecutive sentencing can be imposed. See Minn. Sent. Guidelines II.F. (providing criteria for presumptive and permissive consecutive sentencing). A consecutive sentence on King's perjury charge could only be imposed as part of a departure from the sentencing guidelines. See id. ("The use of consecutive sentences in any other [case other than those listed in the guidelines] constitutes a departure from the guidelines and requires written reasons * * * ."). Denying King credit for the 60 days served on the escape-from-custody charge would be the equivalent of running the perjury charge consecutive to the escape-from-custody charge. Because there is no basis for an upward departure on the perjury charge, consecutive sentencing cannot be imposed in the present case. We conclude that the Anderson rule does not apply, and the district court erred when it refused to grant King full credit for time served. On remand, appellant is entitled to have his sentence calculated downward.