Cheryl Maxwell, Appellant, vs. State of Minnesota, Respondent.

STATE OF MINNESOTA
 IN COURT OF APPEALS
 C8-99-633

State of Minnesota,
Respondent,

vs.

Larry Dale Bridgeforth,
Appellant.

 Filed August 24, 1999
 Affirmed in part, reversed in part
 Peterson, Judge

Hennepin County District Court
File No. 98024424

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy J. Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Short, Judge, and Peterson, Judge.

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

 PETERSON, Judge

In this appeal from an order revoking his probation and executing his sentence for third-degree assault, appellant Larry Dale Bridgeforth challenges the trial court's denial of jail credit as punishment for a direct contempt that occurred during the probation revocation hearing. We affirm the revocation of probation, reverse the denial of jail credit, and remand to permit the trial court to impose punishment for the direct contempt.

 FACTS

Bridgeforth pleaded guilty to third-degree assault and was sentenced to the presumptive 27-month sentence. Execution of the sentence was stayed, and Bridgeforth was placed on probation.

After Bridgeforth had been on probation for six months, his probation officer filed a probation violation notice alleging that Bridgeforth had violated the terms of his probation by testing positive for chemical use and being charged with domestic assault. During the probation revocation hearing, the trial court warned Bridgeforth to face forward and stop staring at his former fiancée, who was the alleged victim of the domestic assault and a witness. When Bridgeforth continued staring, the trial court found him in contempt of court and stated to his attorney:

I am holding your client in contempt for the following reason: Even to the point where the deputy has had to stand up, for security reasons, even in the face of my direct order he is to face forward and not try to intimidate the witness, behind your back, as he is behind you, you cannot see, he has at least six times turned around and stared and glared at this witness. I find that in contempt of court, trying to intimidate a witness. I will deal with that after the hearing, but I want you to talk to your client right now and explain what contempt means and that he's looking at jail time on that particular situation alone.

After finding that the state proved the probation violations, the court revoked Bridgeforth's probation and executed his previously stayed 27-month sentence. The trial court also stated:

I find that [Bridgeforth's] conduct not only was in contempt of this Court but was a direct contempt, and it was repeated, even though we tried, though the deputies and myself, to get him to stop.

Lastly, I want the record to be absolutely clear that I find that intimidation of witnesses is one of the most serious problems the trial court has to manage and control. Lastly, is it's accelerated greatly, as we all know, when we are talking about domestic assault cases, and therefore, his conduct is direct, intentional, repetitive, and in contempt in violation of this Court, both before and after he was given a warning by the deputy, both before and after I gave him a warning.

Therefore, I am not giving him any credit for time served. He is to begin 27 months as of today, and I want the record expressly clear, when he is transported to the holding authority, that he has no credit coming, he is to do 27 months as of this date.

When defense counsel asked the trial court to clarify what it was doing, the court stated that Bridgeforth was being sentenced to 27 months and that he was not to receive credit for the 172 days of jail time that he had accumulated before the revocation hearing.

 D E C I S I O N

  Bridgeforth does not challenge the revocation of his probation. He argues only that the trial court ordered an impermissible sentence to be executed upon revocation. Bridgeforth argues that the sentence is impermissible because, as punishment for direct contempt, the trial court ordered that he not receive 172 days jail credit that he would otherwise receive.

  Conduct directed against the dignity and authority of the court is punishable by fine, imprisonment, or both. See Minn. Stat. § 588.02 (1998) (authorizing fine and imprisonment as sanctions for contempt of court). A district court's decision to invoke its contempt powers should not be overturned absent an abuse of discretion. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).

"Direct contempts are those occurring in the immediate view and presence of the court," and can arise from "[d]isorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceedings." Minn. Stat. § 588.01, subd. 2(1) (1998). Under Minn. Stat. § 588.03, (1998) direct contempt may be punished summarily, but the court is required to make an order

reciting the facts as occurring in the immediate view and presence of the court or officer, and adjudging the person proceeded against to be guilty of a contempt, and that the person be punished as therein specified.

The trial court made an order on the record that stated that Bridgeforth was guilty of direct contempt for continuing to attempt to intimidate a witness by staring at her after being warned by the court not to do so. The order also indicated that Bridgeforth's conduct occurred in the court's presence and stated that because of the contemptuous behavior, the court was executing the 27-month sentence without giving Bridgeforth any jail credit for time served.

Minn. R. Crim. P. 27.03, subd. 4(B), provides that when sentence is imposed, the court

[s]hall assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed. Such time shall be automatically deducted from the sentence and the term of imprisonment including time spent in custody as a condition of probation from a prior stay of imposition or execution of sentence.

"The granting of jail credit is not discretionary with the trial court." State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988). Here, the record reflects that Bridgeforth spent 172 days in custody in connection with the third-degree assault for which the 27-month sentence was imposed. But these 172 days were not deducted from the sentence when it was executed. Because granting jail credit is not discretionary, the trial court erred by not granting Bridgeforth credit for the 172 days. We, therefore, reverse the denial of 172 days jail credit against the 27-month sentence for third-degree assault.

Bridgeforth also argues that the trial court's contempt order improperly requires him to serve his 27-month sentence without the supervised release term required under Minn. Stat. § 244.101(1998). We disagree. The trial court's order denied jail credit. It did not address supervised release time.

Because the record demonstrates that the trial court intended to punish Bridgeforth for direct contempt, and our reversal of the impermissible jail credit order eliminates the intended punishment, we remand to permit the trial court to punish the direct contempt. See Minn. Stat. § 588.02 (court may punish contempt by fine or imprisonment, or both); see also Minn. Stat. § 588.03 (direct contempt may be punished summarily).

Affirmed in part, reversed in part, and remanded.