State of Minnesota, Respondent, vs. Derrick Lamar Bacon, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

State of Minnesota,
Respondent,
 
vs.
 
Derrick Lamar Bacon,
Appellant.

Reversed and remanded

Hennepin County District Court

File No. 98047615

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Peterson, Judge.

CRIPPEN, Judge

            Appellant contends that the trial court wrongfully denied him a portion of his jail credit on a 38-month robbery sentence.  Concluding that credit had to extend to the date the state had probable cause to initiate its robbery prosecution against appellant, we reverse and remand to the trial court to grant credit for time served after May 15, 1998.

            When appellant's robbery sentence was imposed in May 2000, he was serving a 21-month sentence on an earlier conviction.  The trial court granted appellant jail credit to June 23, 1999, the date of conviction of an accomplice who was then available to incriminate appellant in the robbery. 

            Appellant contends that the period of credit should have gone back to May 15, 1998, when police first questioned him about the robbery.  At that time, appellant admitted being present during the robbery but denied participating in the act.  Six days earlier an accomplice told police that appellant had planned and participated in the robbery.  The victim partially corroborated the accomplice's account by stating that a woman had taken him to a secluded area where two men had been waiting to rob him.  The accomplice was charged with the crime one year later, in April 1999.

When imposing a sentence, the trial court must "assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which [the] sentence is imposed."  Minn. R. Crim. P. 27.03, subd. 4(b).  "The granting of jail credit is not discretionary with the trial court."  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987) (citation omitted), review denied (Minn. Jan. 15, 1988). 

When a defendant is already incarcerated for a separate conviction, jail credit cannot be denied for the period of delay between the time an investigation of the crime is completed and the date defendant is formally charged with the act, especially when the delay is "subject to manipulation" by the prosecution.  State v. Folley, 438 N.W.2d 372, 374 (Minn. 1989).  Folley makes clear that the test is not actual manipulation but rather the possibility of manipulation.  Id.

In Fritzke and Morales, we concluded that when a defendant is serving jail time on a separate charge, the prospect for manipulation occurs when probable cause is established.  State v. Morales, 532 N.W.2d 268, 270 (Minn. App. 1995); State v. Fritzke, 521 N.W.2d 859, 861-62 (Minn. App. 1994).  Probable cause to support a complaint exists when there are sufficient facts to support a reasonable belief that a crime has been committed by the person to be charged.  See State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff'd, 495 U.S. 91, 110 S. Ct. 1684 (1990); State v. Florence, 306 Minn. 442, 456-57, 239 N.W.2d 892, 902 (1976) (explaining difference between probable cause to detain and probable cause for defendant to stand trial).

We conclude that probable cause existed on May 15, 1998.  Although the readiness of the prosecution's case depended on the availability of the accomplice, the date of availability was subject to manipulation by the prosecution's strategy in gaining the ability to compel the testimony of this witness.  We reverse the trial court's jail credit calculation and remand for redetermination of the credit consistent with this opinion. 

Reversed and remanded.