400 NW2D 153 - White v. State

RANDALL, Judge,

¶1concurring specially.

¶2I concur with the majority that Minn. Stat. § 590.01, subd. 3, is clear and requires certain specific findings of fact by the trial court before appellant may be resentenced to a shorter sentence. However, once finding that, I would have remanded to the trial court with directions to conduct another hearing and to allow both sides to present any additional evidence they may deem appropriate because of our decision.

¶3The majority indicates that appellant was given an opportunity to present whatever evidence he felt appropriate at the first hearing. That may be, but in light of the trial court's careful reasoning in its order as to why it felt appellant was entitled to be resentenced, even though a certain specific finding could not be made, I deem it appropriate to allow the trial court to try once more to consider appellant’s petition now that we have made it clear that, at least until changed, the present wording of Minn.Stat. 590.01 is controlling.

¶4The trial court correctly pointed out that its resentencing to a determinative sentence of 150 months gave full recognition *157to the gravity of the offense.1 The trial court felt, for several reasons, that, once the severity of the offense was recognized, it was not essential, at least in this case, that the court make a finding that the petitioner, down the road, would not “present a danger to the public.” The trial court indicated that no one could see several years down the road and predict what a person would or wouldn’t do, and then pointed out that no similar burden is placed on a defendant whose time for release has come. After you have served your full sentence, you are entitled to be released, and there does not have to be a specific finding that in the future you will be a good person and no.t be a danger to anybody. The general sentencing statutes simply require you to serve your full time and then you get out.

¶5However, this resentencing statute is clear, not ambiguous, and any disagreement with it or proposed changes will have to come through the legislative process and cannot be done by judicial fiat.

¶6While we are upholding the validity and specificity of the controlling statute, I feel that the trial court should be accorded the full opportunity, on remand, to reconsider this matter.

¶7. 'The offense was committed on April 19, 1980. Had it been committed on May 1, 1980, appellant would have come under the Minnesota Sentencing Guidelines. Under the Guidelines, as the majority notes, the presumptive sentence was 41 months, and thus the sentence the trial court imposed of 150 months was more than a triple upward durational departure.