A Felony Conviction Deemed to be a Misdemeanor Under Minn.Stat. 609.13 Doesn’t Count Under Career Offender Statute

State v. Franklin, Minn.S.Ct., 3/11/2015.  The career offender statute says that an offender who “has five or more prior felony convictions” is at least half way home to be deemed a career offender.  (A “pattern” is the other part.)  Suppose, however, that one of those prior felonies got dropped to a misdemeanor by operation of Minn.Stat. 609.13, subd. 1?  Does that offender still have “five or more prior felonies”?

The court of appeals had said, no, that Mr. Franklin only had four prior felonies.  Read about that here.  Justice Wright, for a unanimous court, agrees.   The justice gets out her dictionaries and grammar books to “examine the meaning of the verb have.”  If one says, “I have five apples.” that’s in the present.  On the other hand, if one says, “I have had five apples.” is in the past.  So, getting back to the task at hand, had the career offender statute said, “has been convicted of” five or more felonies, then Mr. Franklin would have qualified as a career offender.  The statute doesn’t say that and so he’s not a career offender.