State v. FolleyState v. Folley
- Reporters:
- , ,
- Before:
- Yetka
Defendant, Ernest John Folley, was found guilty by a district court jury of two counts of criminal sexual conduct in the first degree,
1. As we have interpreted
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
The court of appeals properly chose to address the issue, holding that defendant’s argument that both convictions are based оn the same conduct “is contrary to the facts” because the conviction of violating
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 thеir investigation sometime in October or November 1987. On November 4, 1987, defendant, who has a long history of
ATTENTION
DISP
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 thе 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 сredit 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 aсquitted 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. Wе need not discuss those cases in detail here. It is sufficient to say that a number of basic principles are reflected in those decisions, including that, in a case deаling, with jail credit against concurrent Guidelines sentences where the State of Minnesota is a party to both charges, the trial court should ensure that the withholding of jail credit does not result in a defacto departure with respect to consecutive service. State v. Dulski, 363 N.W.2d 307 (Minn.1985). We have also held that a defendant who cannot post bail because of indigency should serve the same time that a person in identical сircumstances who is able to post bail would serve, State v. Hott, 426 N.W.2d 423 (Minn.1988), and that the total amount of time a defendant is incarcerated should not turn on irrelevant concerns such as whether the defendant pleads guilty or insists on his right to trial. State v. Arden, 424 N.W.2d 293 (Minn.1988); Dulski, 363 N.W.2d 307. Additionally, the total amount of time a defendant is incarcerated should not turn on matters that are subject to manipulation by the prosecutor. Arden, 424 N.W.2d 293; Dulski, 363 N.W.2d 307.
We, of course, do not know — nor do we imply — that the prosecutor was motivated by a desire to get around the credit cases. However, if credit is not allowed in this case, the effect will be the same as if the prosecutor acted in a deliberate attempt to manipulate unfairly the charging process to defendant’s disadvantage. Further, the fact that defendant was indigent and, therefore, unable to post bail on the aggravated DWI charge is a factor affecting our decision. There may be certain inequities in the award of jail credit that we cannot correct. This is one case in which the inequity can be corrected.
Wе believe that defendant should be given credit not from January 13, 1988, when he was arrested and formally charged with the sex crimes, but from November 4,1987, when he was arrested for the aggrаvated DWI charge. Any uncertainty as to when the state’s investigation of the sex crimes was completed and when the decision to
In summary, while we agree with the court of appeals that the evidence of defendant’s guilt was sufficient to sustain the convictions, one of the convictions must be vacated by thе trial court pursuant to
Affirmed in part; remanded to trial court for further proceedings.
KELLEY, J., took no part in the consideration or decision of this matter.
Notes
.
Upon prosecution for a crime, the actor may be convicted of еither the crime charged or an included offense, but not both. An included offense may be any of the following:
(1) A lesser degree of the same crime; or
(2) An attempt to commit the crime charged; or
(3) An attempt to commit a lesser degree of the same crimе; or
(4) A crime necessarily proved if the crime charged were proved; or
(5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.