Imposing a Conditional Release Period at the Time of Execution of Previously Stayed Sentence is Okay

Thong v. State, Minn.Ct.App., 3/20/2017.  Mr. Thong pled guilty to first degree driving while impaired.  The plea petition that he signed had the standard issue language that a felony driving while impaired offense required a period of conditional release following any executed prison sentence that was imposed.  The trial court stayed execution of a 42 month sentence and placed Mr. Thong on probation.  The sentencing order did not impose the conditional release period.

Fourteen months later Mr. Thong violated his probation so the trial court executed the forty-two month sentence.  The trial court initially did not impose the conditional release term but later the same say the court amended the warrant of commitment to include that term. Mr. Thong filed this post conviction petition saying that he should be allowed to withdraw his guilty plea or have his sentence amended to remove the conditional release term.  The  post conviction court denied both requests.

Minn.Stat. 169A.276, subd. 1(d) requires that a five year conditional release term be imposed "when the court commits a person [convicted of first degree DWI] to the custody of the commissioner of corrections."  It turns out that when a trial court stays execution of a sentence it's not really "committing" that person to the custody of the commissioner of corrections.  That "committing" only occurs when the sheriff  hauls the defendant off to jail to await transportation up to St. Cloud for classification. The appellate court does suggest that the better practice is to pronounce the conditional release period at the time of sentencing