ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED (1) that the petition for further review filed by Terrence Tyree Arnold be, and the same is, granted and (2) that defendant's sentence be modified.

Defendant was charged with five offenses committed during three alleged street robberies early on December 19, 1992: first incident: aggravated robbery of C. by robbing her at gun point, criminal sexual conduct by sexually touching C. during the robbery, and assault with a dangerous weapon of K., who was with C., by putting her in fear; second incident: aggravated robbery of W.; third incident: aggravated robbery of M. Defendant pled guilty to the aggravated robbery of C., the assault with a dangerous weapon of K. and the aggravated robbery of W., offenses which he had readily admitted, in exchange for the dismissal of the sex charge and the other robbery charge, offenses which he had consistently denied.

The trial court sentenced defendant to 72 months for the robbery of C. (an upward durational departure from the presumptive sentence of 48 months), a consecutive term of 48 months for the robbery of W. (the consecutive sentence being permissive under the Sentencing Guidelines), and a concurrent Sentencing Guidelines term of 36 months for the assault of K. The trial court based the upward durational departure on the allegation that defendant sexually touched C. during the robbery, i.e., on the allegation forming the basis of the sex charge which was dismissed as part of the plea bargain.

Under the facts and circumstances of the case, this was in violation of our decisions in State v. Womack, 319 N.W.2d 17 (Minn. 1982), and State v. Lubitz, 472 N.W.2d 131 (Minn. 1991), and had the effect of unfairly depriving defendant of the benefit of the plea bargain to which the state agreed. Accordingly, we reduce defendant's sentence for the aggravated robbery of C. to 48 months, the presumptive sentence under the Sentencing Guidelines. This leaves defendant with consecutive sentences of 48 months and 48 months and a concurrent sentence of 36 months. Affirmed as modified.