STATE of Minnesota, Respondent,
v.
Mark Paul MURTO, Appellant.
No. 82-170.
Supreme Court of Minnesota.
March 12, 1982.*740 Michael F. Cromett, St. Paul, for appellant.
Warren Spannaus, Atty. Gen., Thomas W. Foley, County Atty., St. Paul, for respondent.
Considered and decided by the court en banc without oral argument.
AMDAHL, Chief Justice.
Defendant pled guilty to theft over $150, Minn.Stat. § 609.52, subds. 2(1) and 3(2) (1980), which in his case carried a presumptive sentence under the Minnesota Sentencing Guidelines and Commentary, (1980) of 1 year and 1 day stayed. The trial court imposed the presumptive sentence, stayed execution, and placed defendant on probation for 5 years, the first year to be served in the workhouse. Defendant then unsuccessfully sought to refuse probation. This appeal followed. While the appeal was pending, we filed our opinion in State v. Randolph, 316 N.W.2d 508 (Minn., 1982), which controls. As we did in Randolph, we remand. On remand the trial court will be given the opportunity to reduce the probationary jail time imposed on the defendant, thereby removing much of the incentive for defendant to insist upon execution of the prison sentence. However, if defendant still insists on refusing probation, the execution of the original prison sentence should be ordered.
Remanded.