State v. Bluhm, CX-89-1426
| Decision Date | 31 August 1990 |
| Docket Number | No. CX-89-1426,CX-89-1426 |
| Parties | STATE of Minnesota, Petitioner, Appellant, v. Dennis H. BLUHM, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Trial court properly allowed the state to amend the complaint to charge the greater offense of sale of 10 grams or more of cocaine during jury selection.
2. Trial court prejudicially erred in refusing to instruct the jury on one of the elements of the offense of sale of 10 grams or more of cocaine.
Hubert H. Humphrey, III, Atty. Gen., Louise T. Donne, Sp. Asst. Atty. Gen., St. Paul, and Paul G. Morreim, Freeborn County Atty., Albert Lea, for appellant.
Deborah Ellis, Thomson & Ellis, Ltd., St. Paul, for respondent.
Considered and decided by the court en banc without oral argument.
The court of appeals in its decision in this case vacated the conviction of defendant, Dennis Bluhm, of sale of 10 grams or more of cocaine and the court remanded for sentencing on the less serious offense of sale of less than 10 grams of cocaine. 457 N.W.2d 256. We agree that defendant's conviction must be vacated but, because our analysis differs from that of the court of appeals, we conclude that the appropriate relief is to remand and give the state the option of either retrying the defendant on the charge of sale of 10 grams or more or of sentencing defendant on the less serious offense of sale of less than 10 grams of cocaine.
Defendant was charged by complaint with selling cocaine to one Lawrence R. Peterson in Albert Lea. The complaint clearly stated that the amount sold was an ounce, which is 28 grams. The offense description part of the complaint also stated that defendant sold an ounce of cocaine. Sale of that much cocaine is a 20-year felony. However, the complaint, prepared by a local prosecutor, cited the section of the statute that covers sales of lesser amounts of cocaine and it described the maximum sentence as 15 years.
The special assistant attorney general who was called in to try the case for the state discovered during jury selection that there was a discrepancy between the facts stated in the complaint and the charge. She immediately moved to amend the complaint to charge defendant with the greater charge, the one appropriate to the facts. Defense counsel objected and asked for a continuance if the motion was granted. The trial court allowed the amendment and denied a continuance. The trial court denied a defense request to instruct the jury that sale of 10 grams or more was an element of the amended offense. The trial court reasoned that the offense was sale of cocaine and that whether the amount sold was less than 10 grams, on the one hand, or 10 grams or more, on the other hand, was a matter that related only to sentencing.
Defendant was convicted of the sale of cocaine and sentenced to a sentence appropriate when one has sold 10 grams or more.
The court of appeals, ruling that the trial court erred in granting the amendment and erred in its instructions, vacated the...
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