David Jon Weckert, petitioner, Appellant, vs. State of Minnesota, Respondent.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-98-1594

State of Minnesota,

Respondent,

vs.

Larry Darnell Marshall,

Appellant.

Filed December 29, 1998

Affirmed

Mulally, Judge[*]

Ramsey County District Court

File No. K0963667

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Larry Darnell Marshall, #101010, 1101 Linden Lane, Faribault, MN 55021 (pro se appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Mulally, Judge.

U N P U B L I S H E D O P I N I O N

MULALLY, Judge

A jury found appellant Larry Darnell Marshall guilty of financial transaction card fraud under Minn. Stat. § 609.821 (1996). He was sentenced to an executed term of 60 months. Marshall appealed his conviction, and this court affirmed. State v. Marshall, No. C6-97-982 (Minn. App. Mar. 17, 1998), review denied (Minn. May 20, 1998). Marshall now appeals the denial of a postconviction challenge to the length of his sentence under Minn. R. Crim. P. 27.03, subd. 9. We affirm.

FACTS

On May 1, 1998, Marshall filed a pro se petition for postconviction relief challenging his 60-month sentence. The petition was denied by the district court on June 30, 1998, and the district court's order was amended on July 8, 1998. Marshall appeals from this denial and argues the length of his sentence is illegal due to a conflict between the financial transaction card fraud statute, Minn. Stat. § 609.821, subd. 3(1)(iv) (1996), and the attempt statute, Minn. Stat. § 609.17, subd. 4 (2) (1996).

D E C I S I O N

This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.

Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Generally, a convicted defendant who files for postconviction relief must allege all errors known to him at that time, and cannot later file a second appeal unless the claim is so novel that its legal basis was not reasonably available to counsel at the time of the first appeal. Case v. State, 364 N.W.2d 797, 799-800 (Minn. 1985). However, "[t]he court at any time may correct a sentence not authorized by law." Minn. R. Crim. P. 27.03, subd. 9. This court may consider the merits of Marshall's motion. See State v. Stutelberg, 435 N.W.2d 632, 634-35 (Minn. App. 1989) (recognizing Case decision addresses petitions brought under chapter 590, but separate sentencing relief is available under Rule 27.03, subd. 9).

Marshall argues the inconsistency between the financial transaction card fraud statute, Minn. Stat. § 609.821, subd. 3(1)(iv) (1996), and the attempt statute, Minn. Stat. § 609.17, subd. 4(2) (1996), prohibits his 5 year sentence. We disagree.

Marshall was convicted under the financial transaction card fraud statute which states:

A person who does any of the following commits financial transaction card fraud:

(1) without the consent of the cardholder, and knowing that the cardholder has not given consent, uses or attempts to use a card to obtain the property of another, or a public assistance benefit issued for the use of another[.]

Minn. Stat. § 609.821, subd. 2(1) (1996) (emphasis added). A person who commits this crime may be sentenced "to imprisonment for not more than five years or to payment of a fine of not more than $10,000 or both." Id., subd. 3 (iv). Marshall argues his five year sentence is illegal because the sentence provision of the attempt statute states:

Whoever attempts to commit a crime may be sentenced as follows: * * *

(2) For any other attempt, to not more than one-half of the maximum imprisonment or fine or both provided for the crime attempted * * *.

Minn. Stat. § 609.17, subd. 4(2).

Marshall was convicted under the financial transaction card fraud statute, not the attempt statute. The plain language of the financial transaction card fraud statute treats an attempt the same as a completed crime. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (holding that if statute is unambiguous, court may engage in no further statutory construction and must apply plain meaning). Further, the legislature intended to differentiate attempted financial transaction card fraud from an attempt under section 609.17. See Minn. Stat. § 645.19 (1996) (stating exceptions expressed in law are construed to exclude all others); Minn. Stat. § 645.26, subd. 1 (1996) (stating specific statutory provisions control when they conflict with general provisions). We affirm the postconviction court's decision rejecting Marshall's challenge to his sentence.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.