State v. Anderson

AMDAHL, Chief Justice.

This is an appeal by Kevin Peter Anderson, age 26, from an order of the Hennepin County District Court denying his petition for postconviction relief in the form of re-sentencing according to the Minnesota Sentencing Guidelines pursuant to Minn.Stat. § 590.01, subd. 3 (Supp.1981). We affirm.

In 1979 petitioner was convicted of burglary and theft over $100 and was sentenced to 5 years in prison. That conviction was affirmed in State v. Anderson, 298 N.W.2d 63 (Minn.1980). Petitioner apparently has been released from prison, but his sentence has not yet expired.

Burglary is a severity level IV offense. If the Sentencing Guidelines had been in effect at the time the offense was committed, petitioner’s criminal history score at the time of sentencing would have been four (three felony points and one custody status point). The presumptive sentence for a severity level IV offense by a person with a criminal history score of four is 25 months in prison. If petitioner were resen-tenced to the presumptive term, he would be entitled to be discharged from sentence immediately.

As we stated in State v. Champion, 319 N.W.2d 21, 23 (Minn.1982), “[W]e generally will not interfere with the postconviction court’s refusal to make the finding that is prerequisite to resentencing, at least in cases in which the petitioner is serving a sentence for a violent offense or has a record suggesting that he is likely to engage in criminal conduct after his release.” Given petitioner’s record of recidivism, we believe that the district court was justified in refusing to resentence petitioner according to the Sentencing Guidelines.

Petitioner remains subject to the jurisdiction of the commissioner of corrections.¹

Affirmed.

1 . The Minnesota Corrections Board was abolished, effective June 30, 1982, by Act of June 1, 1981, ch. 360, § 4, 1981 Minn.Laws 2236, 2237.