(concurring in part and dissenting in part).
I concur with the majority on the affirmance of the conviction. I accept the analysis and opinion of the panel on the issue of change of venue and the issue of admissibility of prior conviction for impeachment use.
However, on the third legal issue, the computation of the defendant’s criminal history score, I would reverse the decision of the trial court and remand the case for the imposition of a sentence based on a criminal history score of two rather than three.
The State accepted appellant’s factual recitation of the relevant dates and background on this issue. The majority opinion also adheres to those basic facts. Appellant Ward was unconditionally released from the correctional facility at Lino Lakes on February 11, 1983. He was given his final discharge papers, postdated four days to February 15, his expiration date, and his gate money. He was told by correction officers he was on his own, and that he need not report back to Lino Lakes. He was not assigned a parole agent, was not presented with nor asked to sign a parole agreement, was given no specific do’s or don’ts for the next four days, nor was he given anyone to report to within the next four days. The present offense on which he is being sentenced occurred on February 13, 1983, two days after his release, and two days prior to the final expiration of his sentence.
On this narrow and unique set of facts, defendant-appellant should not have been assigned a custody point. The sentencing work sheet involved showed five specific types of custody supervision, i.e., probation, parole or supervised released, confinement, release pending sentence, escape, and other. The probation officer doing the report checked the block marked “yes” on the question, “Was offender under custody supervision at time of current offense?”, and then checked block # 6 — “Other.” The work sheet did not include an explanation of “other.”
The Sentencing Guidelines, Sec. II.B.2 discuss a custody point for everything except “other.” A fair interpretation of the Guidelines and the comments leaves an exact definition of “other” both unclear and arguable. It is basic law in Minnesota, and other jurisdictions, that penal provisions must be strictly construed, and ambiguities must be interpreted in favor of the defendant. State v. Haas, 280 Minn. 197, 159 N.W.2d 118 (1968). See Minnesota Digest, Vol. 15A-Statutes, Key # 241 et seq. (West, 1970). Although Ward’s conduct, in being apprehended two days after his release in the act of prowling a home, is not indicative of rehabilitation nor of a real intention on his part to follow the one true way after spending years in prison, he is, nevertheless, a citizen of the state and entitled to all the legal presumptions and inferences afforded defendants appearing before a court on their first brush with the law.
The assignment of the point for custody status (a bad point equivalent to a point for a prior felony conviction) was controlling in determining the defendant’s presumptive sentence. The burglary conviction in question, a level VI severity, called for 30 months with a presumptive stay with a criminal score of two, but the same offense with a criminal history score of three called for a presumptive 34 months incarceration at a state prison. Defendant Ward has two *299legitimate and undisputed bad points for prior convictions, but the assignment of a custody point increased his criminal history score to three and shifted him automatically from a presumptive 30 months stay of execution to a presumptive 34 months incarceration in a state prison.
The Sentencing Guidelines, supra, do not include “other” as meriting a custody status point. Only the sentencing work sheet contains this category. The work sheet was drafted pursuant to rules promulgated by the Supreme Court, but that statute, granting the Supreme Court authority to promulgate rules, did not sanction a substantive addition to the five categories which would be considered custody status at time of offense. See Minn.Stat. § 609.-115, subd. 1(a); Minnesota Sentencing Guidelines II.B.2. and the comment thereto. Sentencing Guidelines comment II.B.201 identifies the types of custody supervision, and neither the guidelines nor the comment discusses “other.” The Canon of Construction Expressio Uv.ius Est Exclusio Alteri-us supports the concept of construing penal statutes strictly against the state and in favor of the defendant. Minn.Stat. § 645.-08.
The Sentencing Guidelines specifically mention certain types of custody status. They are silent as to what can constitute “other.”
The trial court should not have included a custody status point in calculating Ward’s criminal history score. He was not on probation, parole, supervised release, confinement, escape status, or released pending sentencing. He was not in custody. He was an undefined “other.”
As far as we can determine what constitutes “custody” or “in custody” has not been addressed in Minnesota. Numerous cases in other jurisdictions discuss what is or is not custody for purposes of various matters such as being charged with the offense of escape from custody, see State v. Ryan, 62 Hawaii 99, 612 P.2d 102 (1980); and discussing whether or not one is in custody for purposes of good time, see People v. Rodgers, 79 Cal.App.3d 26, 144 Cal.Rptr. 602 (1978). The spirit of the term “custody” seems universally to apply to some kind of restraint and/or supervision. A representative definition is found in Spring v. Caldwell, 692 F.2d 994 (5th Cir.1982). To warrant the finding that a petitioner is in custody for purpose of Federal habeas corpus jurisdiction in a “fine-only” case, “... [tjhere must be present some sort of supervisory control over the petitioner, that is, defendant’s conduct must be subject in one degree or another to the direction of judicial officers. The existence of an imminent possibility of incarceration without a formal trial and criminal conviction may create such a restraint on liberty as to constitute custody.” 692 F.2d at 998.
It is significant the sentencing work sheet uses this exact wording “Was offender under custody supervision at time of current offense?” (emphasis added). The respondent State of Minnesota concedes that no supervisory control, express or implied, written or oral, was given to Ward on his release on February 11th. Spring v. Caldwell, supra, relied on Hensley v. Municipal Court, San Jose Milpitas Judicial District, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). In that Supreme Court case, Justice Brennan stated the issue: “This case required us to determine whether a person released on his own recognizance is ‘in custody’ within the meaning of the Federal Habeas Corpus Statute.” There a person released on his own recognizance awaiting execution of a sentence was determined to be “in custody” because he was subject to restraints not shared by the public generally: namely, the obligation among others to appear at all times and places as ordered by any court or magistrate of competent jurisdiction. He could not come and go as he pleased. His presence could be demanded at any time by state authority and he was subject to imminent incarceration without a formal trial and criminal conviction. Ward, on the other hand, was under no such controls. Had he committed a crime, or done some other bad act short of a crime, between his release on February 11th and February 15th, *300the State could not have subjected him to a probation or parole revocation hearing, as no conditions of release had attached to lead to a violation. See Morrissey v. Brewer, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
Had the custody point not been included, defendant’s presumptive sentence would have been 30 months stayed and the prosecution would have been at liberty, at sentencing, to argue for an upward departure from the guidelines, if they felt departure applied. Equitably, with appellant having been certified at the age of 16 to district court and been sentenced to a state prison where he had served virtually to expiration, defendant should have been given the benefit of the doubt on his ambiguous custody status.
Prior authorities are distinguishable. In State ex rel. Bush v. Whittier, 226 Minn. 356, 32 N.W.2d 856 (1948), the State Board of Parole had, by written agreement, temporarily relinquished control of a parolee during his period of military service. Parolee later violated the conditions of his briefly granted parole. He argues that after military service and a lapse of time, he could not be brought back to prison for a parole violation because the relinquishing agreement to the military constituted a final and complete discharge from parole. The Minnesota Supreme Court rejected the parolee’s argument and found that since the Board had merely relinquished control and supervision during the time parolee was to be in the U.S. military service, by definition it could not be construed as a final discharge. This case is not authority for the proposition that the effective date of Ward’s discharge was not waived by his four-day early release. In Bush, supra it was clear the parolee’s release to the military was temporary and conditional. Ward’s release was final in the practical sense. He was given his discharge money, was not told to report to anybody or anything, was told he was on his own and was not given any conditions to comply with for the next four days.
State ex rel. Lutz v. Rigg, 256 Minn. 241, 98 N.W.2d 243 (1959), is inapplicable to Ward’s case, as the following facts are clear in Lutz:. Lutz was imprisoned in 1933 for a 15-20 year sentence, was specifically paroled in 1940 with specific parole terms to comply with until final discharge, and was brought back to Minnesota years later on a charge of failing to comply with specific parole terms. That could not possibly have happened to Ward as he was given no terms of parole. Lutz was not given postdated discharge papers with his parole, and a careful reading of Lutz shows clearly that he was under specific parole conditions. Lutz is arguably good authority to support Ward’s position that he was not on parole.
I would reverse on this issue and remand the case to the district court for resentenc-ing.