State v. Provost, Minn.Ct.App., 8/14/207.  This is a sentencing appeal. The state's position was that it knew that the trial judge got it wrong, but, hey, it doesn't matter, you should still affirm what everyone knew was an illegal sentence.  Here's the deal.

Mr. Provost pleaded guilty to second degree burglary.  Based upon a criminal history score of six the trial judge gave him a middle of the box sentence of forty-eight months.  That was correct at the time.  But then, Mr. Provost got the benefit of State v. Haywood, the air-powered BB gun case.  This knocked a point and a half off Mr. Provost's criminal history score.  So, he sojourned back to the burglary judge and asked for a redo on that sentence.  The burglary judge summarily denied that request.

The burglary judge told Mr. Provost, look, because of the overlap in the grid boxes the forty-eight month sentence was an authorized sentence regardless of the Haywood victory.  The court of appeals responds, no, no, an illegal sentence is an illegal sentence:

The Minnesota Supreme Court has held that a district court “must use accurate criminal history scores in order to set mandatory presumptive sentences that comply with the Minnesota Sentencing Guidelines.” State v. Maurstad, 733 N.W.2d 141, 142 (Minn. 2007). Because of this requirement, the supreme court has stated that any “sentence based on an incorrect criminal history score is an illegal sentence” that is “correctable ‘at any time.’” Id. at 147 (quoting Minn. R. Crim. P. 27.03, subd. 9). Under Maurstad, Provost’s sentence is not authorized by law, and the district court did not properly exercise its discretion when it concluded that it lacked the authority to modify his sentence. 

The court of appeals sent the case back to the burglary judge with instructions for that court to do its job:  exercise its discretion, utilizing a correct criminal history score, to determine Mr. Provost's sentence.