State v. Folley, C4-88-1427
| Decision Date | 14 April 1989 |
| Docket Number | No. C4-88-1427,C4-88-1427 |
| Citation | 438 N.W.2d 372 |
| Parties | STATE of Minnesota, Respondent, v. Ernest John FOLLEY, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Under Minn.Stat. Sec. 609.04 (1988), a defendant may not be convicted of two counts of criminal sexual conduct (different sections of the statute or different subsections) on the basis of the same act or unitary course of conduct.
2. The amount of jail credit the defendant receives against his prison sentence should not turn on issues that are subject to manipulation by the prosecutor, on irrelevant matters such as whether the defendant pleads guilty or insists on his right to a trial, or on whether the defendant is indigent and cannot post bail.
C. Paul Jones, State Public Defender and Mark F. Anderson, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., James P. Farly, Sp. Asst., St. Paul, and William MacPhail, Wright County Atty., Buffalo, for respondent.
Considered and decided by the court en banc without oral argument.
Defendant, Ernest John Folley, was found guilty by a district court jury of two counts of criminal sexual conduct in the first degree, Minn.Stat. Sec. 609.342, subds. 1(a), 1(h)(v) (1988), and was sentenced by the trial court to concurrent 43-month prison terms. The court of appeals upheld both convictions against a claim by defendant that the evidence was legally insufficient. State v. Folley, Case No. C4-88-1427, 1989 WL 7620 (Minn.App., filed February 7, 1989) (unpublished opinion). The court of appeals refused to vacate one of the two convictions on the ground that it is barred by Minn.Stat. Sec. 609.04 (1988) and affirmed the trial court's refusal to award defendant all the jail credit he sought. We granted defendant's petition for review because, although we agree with the court of appeals that the evidence of guilt was sufficient, we disagree with the court's refusal to vacate one of the convictions and its affirmance of the denial of jail credit.
1. As we have interpreted Minn.Stat. Sec. 609.04 (1988), 1 a defendant may not be convicted of two counts of criminal sexual conduct (different sections of the statute or different subsections) on the basis of the same act or unitary course of conduct. See, e.g., State v. LaTourelle, 343 N.W.2d 277 (Minn.1984). Defendant was tried on two counts of criminal sexual conduct in the first degree, one based on section 609.342, subdivision 1(a) () and one based on section 609.342, subdivision 1(h)(v) (). The informational section of the complaint stated that the charges were based on evidence that defendant engaged in acts of sexual penetration with the complainant from October 1985 through May 1987. Complainant was born on August 7, 1974, meaning that she was not 13 when the penetration occurred.
Defendant did not raise the section 609.04 issue on the record in the district court. In State v. Kemp, 305 N.W.2d 322, 326 (Minn.1981), we expressly reserved the option not to decide an issue such as this in future appeals if the issue were not first raised in the trial court. However, in a number of subsequent appeals in which it was necessary to decide other issues raised, we also decided the section 609.04 issue, notwithstanding the defendant's failure to raise it in the trial court. See, e.g., State v. Tenhoff, 322 N.W.2d 354, 356-57 (Minn.1982).
The court of appeals properly chose to address the issue, holding that defendant's argument that both convictions are based on the same conduct "is contrary to the facts" because the conviction of violating section 609.342, subdivision 1(a) involved conduct occurring before complainant turned 13 whereas the conviction of violating section 609.342, subdivision 1(h)(v) was based on conduct occurring "thereafter." It appears, however, that both convictions were based on the same evidence and the same acts, all of which occurred before complainant turned 13. We, therefore, believe that, under our cases interpreting and applying section 609.04, one of the two convictions--for which defendant received concurrent 43-month sentences--should be vacated.
2. The facts relating to the jail credit issue are these: The alleged conduct occurred October 1985 through May 1987. Complainant first made her allegations in August 1987. The police apparently completed their investigation sometime in October or November 1987. On November 4, 1987, defendant, who has a long history of
alcohol-related driving offenses, was again arrested for driving while intoxicated (DWI). Because of his record, he was charged with the gross misdemeanor offense of aggravated DWI. There is some indication that defendant was told by the investigating officer on November 5 or 6 that he was going to be charged with the sex crimes. At some point (we do not know when exactly), the county attorney who prosecuted the case told the jailers not to release defendant if he posted bail on the aggravated DWI charge. The prosecutor's instructions were memorialized in a note to the dispatcher from one of the jailers. The note stated:
ATTENTION
If Folley should be able to bail out on the DWI charge--let him go thru bail process. However! When that is finished he is to be notified at that point he is being arrested for 1st degree sexual misconduct "and is to be immediately re-booked on those charges and held." Per 256. Per WSM *Do not notify of charges, until bail is supplied. *
Notify 256 at decent time, if it happens.
Defendant did not make bail. He was acquitted of the aggravated DWI charge. Before he could obtain freedom pursuant to the acquittal, he was formally charged with the sex crimes.
When the defendant discovered the above note, he sought jail credit for the time he spent in jail awaiting trial on the aggravated DWI charge. Defendant argues that he would have been entitled to the credit if the prosecutor had formally charged him with the sex crime when he was arrested for aggravated DWI or if the prosecutor had placed a formal "hold" on him. He argued that it is unfair to allow the prosecutor to deprive him of the credit by placing a secret hold on him and then not filing formal charges until 2 months later when he was acquitted of the aggravated DWI charge.
In the last several years, we have issued a number of decisions in different contexts clarifying when a defendant is entitled to jail credit. We need not discuss those cases in detail here. It is...
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State v. Jones, No. A06-1719.
...grid).7 As such, the 24-month enhancement imposed in this case resulted in a de facto consecutive sentence. Cf. State v. Folley, 438 N.W.2d 372, 374 (Minn.1989) (advising courts "to ensure that the withholding of jail credit does not result in a de facto departure with respect to consecutiv......
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State v. Radunz, No. A05-2564 (Minn. App. 4/3/2007), A05-2564.
...prosecutorial manipulation when a prosecutor delays filing new charges until the defendant posts bail on other charges. State v. Folley, 438 N.W.2d 372, 374 (Minn. 1989). When the charging date may be manipulated after establishing probable cause, "a defendant is entitled to credit for all ......
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State v. Schmidt, No. A09-0237 (Minn. App. 3/2/2010)
...about possible prosecutorial manipulation in limiting jail credit. State v. Goar, 453 N.W.2d 28, 29 (Minn. 1990); State v. Folley, 438 N.W.2d 372, 374 (Minn. 1989); State v. Hott, 426 N.W.2d 423, (Minn. 1988); State v. Arden, 424 N.W.2d 293, 294 (Minn. 1988); State v. Dulski, 363 N.W.2d 307......
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State v. Clarkin, Nos. A10–1286
...consistent with the purposes of concurrent sentencing under the guidelines and prevents a de facto consecutive sentence. State v. Folley, 438 N.W.2d 372, 374 (Minn.1989); State v. Dulski, 363 N.W.2d 307, 309 (Minn.1985) (holding that defendant was entitled to the credit requested because ......