Opinion
No. 20090908-CA.
January 21, 2011.
Fifth District, St. George Department, 081501992; The Honorable G. Rand Beacham.
Aric Cramer, St. George, for Appellee.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellant.
Before Judges DAVIS, McHUGH, and THORNE.
DECISION
¶ 1 The State of Utah appeals the district court's sentence entered on October 15, 2009. We reverse and remand.
¶ 2 Utah Code section 77-27-21.5(16)(a)(ii) provides, in relevant part, that a sex offender who knowingly fails to register as a sex offender shall be sentenced to serve a term of incarceration for not fewer than ninety days, and also, at least one year of probation if the offender is required to register for a misdemeanor conviction. See Utah Code Ann. § 77-27-21.5(16)(a)(ii) (Supp. 2009). Section 77-27-21.5(16)(b) provides that neither the court nor the Board of Pardons and Parole may release a person who violates this section from serving the minimum ninety-day term required under subsection (16)(a). See id. § 77-27-21.5(16)(b).
At the time Williams was charged, this section was numbered Utah Code Ann. § 77-27-Section 77-27-21.5(14)(a).
¶ 3 Rule 22(e) of the Utah Rules of Appellate Procedure provides that this court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time. See Utah R.App. P. 22(e). A sentence is illegal, and therefore void, when it is "beyond the authorized statutory range." State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854. The Utah Supreme Court has clarified that a sentence less than that sentence man-dated by statute constitutes an illegal sentence because it does not comply with the requirements of the statute. See State v. Babbel, 813 P.2d 86, 87 (Utah 1991).
¶ 4 In August of 2009, Williams pleaded guilty to a class A misdemeanor for failure to register as a sex offender under Utah Code section 77-27-21.5. The State requested that the district court impose the mandatory ninety-day sentence under section 77-27-21.5(16)(a)(ii). See Utah Code Ann. § 77-27-21.5(16)(a)(ii). The district court initially imposed a one-year sentence. However, the district court suspended that sentence, instead imposing probation and converting some of the ninety-day period to a fine. Because the district court released Williams from serving the required term of incarceration under section 77-27-21.5(16)(a)(ii), the district court's sentence was outside the authorized statutory range and constituted an illegal sentence. See State v. Dana, 2010 UT App 374, ¶ 8, 672 Utah Adv. Rep. 5.
¶ 5 Accordingly, the district court's October 15, 2009 sentence is reversed. This matter is remanded to the district court for the limited purpose of correcting the sentence by imposing — without suspending — a minimum ninety-day jail term.