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State v. Overweg

Court of Appeals of Minnesota

April 30, 2018

State of Minnesota, Respondent,
v.
Everett Overweg, Appellant.

          Murray County District Court File No. 51-CR-10-84

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Travis J. Smith, Murray County Attorney, (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, (for appellant)

          Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Jesson, Judge.

         SYLLABUS

         The ten-year conditional-release term mandated under Minn. Stat. § 617.247, subd. 9 (2008), is authorized only if an offender was convicted and sentenced for a qualifying offense before the commission of the present offense.

          OPINION

          SCHELLHAS, JUDGE.

         Appellant challenges the district court court's denial of his Minn. R. Crim. P. 27.03, subd. 9, motion to correct his sentence, arguing that the sentencing court imposed an unlawful ten-year conditional-release term under Minn. Stat. § 617.247, subd. 9. We agree, and we reverse and remand.

         FACTS

         In June 2009, appellant Everett Overweg committed the crime of possession of a pornographic work involving minors. On April 9, 2010, respondent State of Minnesota charged Overweg with two counts of possession of a pornographic work involving minors (possession of child pornography) under Minn. Stat. § 617.247, subd. 4 (2008), based on the June 2009 conduct.

         On August 13, 2009, Overweg committed criminal sexual conduct (CSC). On August 17, the state charged Overweg with one count of first-degree CSC under Minn. Stat. § 609.342, subd. 1 (2008), and one count of second-degree CSC under Minn. Stat. § 609.343, subd. 1 (2008), based on the August 13, 2009 conduct. On January 11, 2010, Overweg pleaded guilty to the second-degree CSC charge. On April 5, 2010, the district court stayed adjudication and placed him on probation. On August 22, 2011, following a probation violation, the district court convicted Overweg of second-degree CSC, stayed imposition of sentence, and placed him on supervised probation. On January 9, 2012, following another probation violation, the court revoked probation and executed Overweg's sentence.

         On October 9, 2012, Overweg pleaded guilty to the June 2009 possession-of-child-pornography offense. The district court accepted his plea and sentenced him. Based on Overweg's conviction of second-degree CSC, the court imposed a ten-year conditional-release term under Minn. Stat. § 617.247, subd. 9.

         In June 2017, Overweg moved the district court for a sentence correction under rule 27.03, arguing that the ten-year conditional-release term that the sentencing court imposed under section 617.247, subdivision 9, was unlawful, and requesting that his ten-year conditional-release ...


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