DeFoe v. State , 326 N.W.2d 6 ( 1982 )

AMDAHL, Chief Justice.

This is an appeal by Leonard Charles DeFoe, Jr., age 30, from an order of the Carlton County District Court denying his petition for postconviction relief in the form of resentencing according to the Minnesota Sentencing Guidelines pursuant to Minn. Stat. § 590.01, subd. 3 (Supp.1981). We affirm.

Petitioner was convicted in 1977 of aggravated robbery and was sentenced to a prison term of 1 year and 1 day to 20 years. That conviction was affirmed in State v. DeFoe, 280 N.W.2d 38 (Minn.1979). Petitioner was released from prison in August of 1981. His sentence is scheduled to expire in April of 1990.

Aggravated robbery is a severity level VII offense. If the Sentencing Guidelines had been in effect at the time of the offense, petitioner’s criminal history score at the time of sentencing would have been three. The presumptive sentence for aggravated robbery by a person with that criminal history score is 49 (45-53) months in prison. If petitioner were resentenced to the presumptive term, he would be entitled to immediate discharge from sentence.

Petitioner is a violent offender with a record of recidivism. Petitioner had the burden of overcoming these factors and proving that his early release from sentence would not present a danger to the public and would not be incompatible with the welfare of society. The district court concluded that petitioner failed to meet this burden, and we agree. State v. Champion, 319 N.W.2d 21 (Minn.1982).

Petitioner remains subject to the jurisdiction of the Commissioner of Corrections.

Affirmed.