(dissenting).
I respectfully dissent. The triple departure here cannot possibly be justified without assuming as fact the unproven suggestion that appellant caused the baby’s skull fracture.
This case is prohibited by State v. Womack, 319 N.W.2d 17 (Minn.1982). Womack holds that it is reversible error in sentencing to consider facts related solely to a dismissed charge.
This case arises from injuries sustained by appellant Donald Byron Pearson’s daughter. When the child was admitted to the hospital, doctors discovered bite marks and a skull fracture. Pearson was arrested and charged with first-degree assault for the skull fracture and third-degree assault for the bites. Pearson admitted to biting the baby, but denied causing the skull fracture. He pleaded guilty to the third-degree assault and the state dropped the first-degree assault charge. The pre-sentence investigation report includes Pearson’s admission that he bit the baby and his continuing denial that he' caused the skull fracture.
The trial court imposed a triple durational departure sentence of 36 months, citing three aggravating factors as justification: the victim’s vulnerability due to age; Pearson’s position of authority as her biological father; and the severity of the injuries.
Although the court listed the victim’s age and Pearson’s authority position as reasons for the departure, those reasons were overshadowed by the consideration the court gave to the victim’s head injuries. The court specifically stated that it was troubled by the “severity” of the baby’s injuries, which was a clear reference to the skull fracture and not to bite marks that, in the main, caused bruising.
It is reversible error for a sentencing court to contemplate facts related solely to a dismissed charge when computing a defendant’s sentence. Womack, 319 N.W.2d at 19-20.
It is one thing for the sentencing court to look at the conduct underlying the offense to which the defendant pled guilty if the defendant admits that the underlying conduct occurred, but it is quite another thing when the defendant denies that such conduct occurred.
[T]he trial court was not entitled to act as factfinder and determine whether defendant was telling the truth when he [denied the charge]. That being so, we believe that the departure, based on the sentencing court’s factfinding, was improper.
Id.
The supreme court recently reaffirmed this ruling in State v. Lubitz, 472 N.W.2d 131 (Minn.1991), where it held that once a defendant pleaded guilty to one charge and a different charge was dismissed, the fact issue underlying the dismissed charge was removed from the trial court’s consideration. Id. at 133. The court concluded that sentencing a defendant as if that issue remained in the case deprived the defendant of the benefit of his plea bargain. Id. See also State v. Larkins, 479 N.W.2d 69, 74-75 (Minn.App.1991) (trial court may not use elements of dropped charge as “substantial and compelling circumstances” *408warranting departure where defendant did not admit conduct).
This is precisely the situation before us. Pearson has consistently denied that he caused his daughter’s skull fracture, and the charge relating to the skull fracture was dismissed and is unproven. The pre-sentence investigation report includes Pearson’s denial of guilt for the more serious injury. Therefore, contrary to the majority’s conclusion, the trial court was not free to consider the child’s head injuries for purposes of sentencing.
The two other aggravating factors cited by the trial court — the victim’s vulnerability and Pearson’s position of authority— certainly may be considered by the court in deciding whether to depart upward. Such factors may warrant a sentence increase perhaps as high as double the presumptive sentence. A triple departure here, however, can only be explained by the trial court’s consideration of conduct underlying the dismissed assault charge stemming from the baby’s skull fracture. This is impermissible under current Minnesota law.
This case is not, as the majority suggests, analogous to State v. Winchell, 363 N.W.2d 747 (Minn.1985). In Winchell, the defendant was charged with aggravated robbery, burglary, and assault. In exchange for dropping the burglary and assault charges, the defendant pleaded guilty to aggravated robbery. The trial court doubled the presumptive sentence, and in doing so relied on facts underlying the robbery charge. On appeal, the defendant argued that the trial court improperly considered evidence relating to the dismissed burglary and assault charges when calculating his sentence.
In contrast to Womack and this case, however, the assault charge in Winchell was simply a lesser charge based on the same evidence (that he used a gun); the assault charge was superfluous once the defendant agreed to plead guilty to the more serious aggravated robbery charge. Therefore, the supreme court found no error in the trial court considering the evidence about the defendant’s use of the gun when calculating his sentence. Winchell at 750.
The two charges against Pearson were for separate acts, one charged and proven (by plea), and one now uncharged and always unproven. Because the trial court considered the victim’s head injuries in imposing the triple sentencing departure, the trial court committed reversible error.