State v. Smith , 1982 Minn. LEXIS 1490 ( 1982 )

316 N.W.2d 562 (1982)

STATE of Minnesota, Respondent,
v.
Daniel K. SMITH, Appellant.

No. 82-18.

Supreme Court of Minnesota.

March 5, 1982.

William R. Kennedy, Hennepin County Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., and Vernon E. Bergstrom, Asst. County Atty., Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

Defendant pled guilty to unauthorized use of a motor vehicle, which in his case carried a presumptive sentence under the Sentencing Guidelines of 1 year and 1 day stayed. The trial court imposed the presumptive sentence, stayed execution, and placed defendant on probation for 3 years, the first year to be served in the work-house. Defendant sought to refuse probation. The trial court indicated that it would be willing to allow this if it had authority to do so, but defense counsel was unable to satisfy the trial court that the court had the requisite authority. This appeal followed. Subsequently, we filed our opinion in State v. Randolph, 316 N.W.2d 508 (Minn.1982), which controls. As we did in Randolph, we remand. Here, as there, the trial court should be given the opportunity, if it chooses, to reduce the probationary jail time imposed on the defendant, thereby removing much of the incentive for the defendant to insist upon execution of the prison sentence. However, if the defendant still insists on refusing probation, the execution of the original prison sentence should be ordered.

Remanded.