Zich v. State

Supreme Court of Minnesota

Zich v. State

326 N.W.2d 5, 1982 Minn. LEXIS 1835

CourtSupreme Court of Minnesota

DecidedNovember 12, 1982

DocketNo. 82-542

StatusPublished

This text of 326 N.W.2d 5 (Zich v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Zich v. State, 326 N.W.2d 5, 1982 Minn. LEXIS 1835 (Mich. 1982).

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Opinion

AMDAHL, Chief Justice.

This is an appeal by David John Zich from an order of the Cottonwood County District Court denying his petition for post-conviction relief in the form of resentencing according to the Minnesota Sentencing Guidelines pursuant to Minn.Stat. § 590.01, subd. 3 (Supp.1981). We affirm.

Petitioner was convicted in 1979 of criminal sexual conduct in the second degree for having had sexual contacts with an 11-year-old girl over a long period of time. The trial court sentenced petitioner to 10 years in prison but stayed execution of sentence and placed petitioner on probation subject ■to certain conditions. One of those conditions was that petitioner receive treatment for his alcohol and sexual problems. Petitioner failed to comply with the conditions of probation and sentence was executed in January of 1980. According to the prison matrix, petitioner will have to serve approximately 44 months in prison before being released.

Criminal sexual conduct in the second degree is a severity level YI offense. If the Sentencing Guidelines had been in effect at the time of the offense, petitioner’s criminal history score at the time of sentencing would have been zero. The presumptive sentence for a severity level VI offense by a person with a criminal history score of zero is 21 months stayed. If petitioner were resentenced to the presumptive sentence,, he would be entitled to immediate discharge from sentence.

Petitioner had the burden of proving that his early release from sentence would not present a danger to the public and would not be incompatible with the welfare of society. The district court concluded that petitioner failed to meet this burden, and we agree. State v. Champion, 319 N.W.2d 21 (Minn.1982); Schnoor v. State, 317 N.W.2d 704 (Minn.1982).

Petitioner remains subject to the jurisdiction of the Commissioner of Corrections.

Affirmed.

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AMDAHL, Chief Justice.

This is an appeal by David John Zich from an order of the Cottonwood County District Court denying his petition for post-conviction relief in the form of resentencing according to the Minnesota Sentencing Guidelines pursuant to Minn.Stat. § 590.01, subd. 3 (Supp.1981). We affirm.

Petitioner was convicted in 1979 of criminal sexual conduct in the second degree for having had sexual contacts with an 11-year-old girl over a long period of time. The trial court sentenced petitioner to 10 years in prison but stayed execution of sentence and placed petitioner on probation subject ■to certain conditions. One of those conditions was that petitioner receive treatment for his alcohol and sexual problems. Petitioner failed to comply with the conditions of probation and sentence was executed in January of 1980. According to the prison matrix, petitioner will have to serve approximately 44 months in prison before being released.

Criminal sexual conduct in the second degree is a severity level YI offense. If the Sentencing Guidelines had been in effect at the time of the offense, petitioner’s criminal history score at the time of sentencing would have been zero. The presumptive sentence for a severity level VI offense by a person with a criminal history score of zero is 21 months stayed. If petitioner were resentenced to the presumptive sentence,, he would be entitled to immediate discharge from sentence.

Petitioner had the burden of proving that his early release from sentence would not present a danger to the public and would not be incompatible with the welfare of society. The district court concluded that petitioner failed to meet this burden, and we agree. State v. Champion, 319 N.W.2d 21 (Minn.1982); Schnoor v. State, 317 N.W.2d 704 (Minn.1982).

Petitioner remains subject to the jurisdiction of the Commissioner of Corrections.

Affirmed.

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326 N.W.2d 5, 1982 Minn. LEXIS 1835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zich-v-state-minn-1982.

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