STATE of Minnesota, Respondent,
v.
Melvin Edwin GILBERTSON, Appellant.
No. C7-90-241.
Supreme Court of Minnesota.
May 7, 1990.John Stuart, State Public Defender, Mark F. Anderson, Asst. State Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, State Atty. Gen., St. Paul, and Alan Mitchell, St. Louis County Atty., Duluth, for respondent.
Considered and decided by the court en banc without oral argument.
SIMONETT, Justice.
Because the imposition of a long probationary jail term "may, in effect, constitute a de facto departure from the presumptive sentence established by the Sentencing Guidelines," State v. Randolph, 316 N.W.2d 508, 510 (Minn.1982), we held in State v. Wilwert, 317 N.W.2d 346, 347 (Minn.1982), that the total amount of probationary jail time a defendant may be required to serve generally cannot exceed two-thirds of the presumptive prison sentence duration under the Sentencing Guidelines.
In the instant case, as the court of appeals correctly noted, the trial court's corrected sentence for two felony counts of fleeing a police officer was two concurrent prison terms of 1 year and 1 day, with execution stayed. The trial court, however, required defendant, as a condition of probation, to serve two consecutive terms of 8 months in jail, making a total of 16 months. Relying on Wilwert, the court of appeals reduced the probationary jail time to 12 months. The maximum amount of prison time that defendant could be required to serve in this case, assuming good behavior, would be 8 months or two-thirds of the presumptive duration of the prison sentence imposed by the trial court, here 1 year and 1 day. Under Wilwert, the maximum amount of probationary jail time cannot exceed the maximum amount of time the defendant would be required to serve in prison if the sentence had been executed. Accordingly, defendant's total probationary jail term in this case cannot exceed 8 months. If the representations of defendant's attorney are correct, defendant has already served slightly more than 8 months and therefore is entitled to immediate release.
Affirmed as modified.