State v. Tildahl

ORDER Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that the petition of Melvin Clifford Tildahl for further review of the decision of the Court of Appeals filed November 7, 1995 be, and the same is, granted for the limited purpose of reversing the unpublished decision of the court of appeals affirming the imposition of multiple and consecutive jail terms for offenses of aggravated driving violation and open bottle violation. The issue is whether [515] the protection of Minn.Stat. § 609.035 against multiple punishment for multiple offenses committed as part of a single behavioral incident applies and allows the imposition of only one sentence. Our disposition of this issue is controlled by City of Moorhead v. Miller, 295 N.W.2d 548 (Minn.1980), holding in that case that the defendant could be sentenced for only one of the two offenses, which were violating the open bottle law and driving while under the influence. Since the statute applies, petitioner is entitled to vacation of one of the two sentences. Petitioner’s convictions are affirmed but he is entitled to vacation of one of the sentences. Accordingly, we remand to the district court with instructions to vacate one of the two sentences, which in this case will be the un-served sentence. BY THE COURT: /s/ Alexander M. Keith Chief Justice