Opinion
No. CX-96-1848.
Filed December 17, 1996.
Appeal from the District Court, Kandiyohi County, File No. K496496.
Hubert H. Humphrey III, Attorney General, (for Respondent)
Boyd A. Beccue, Kandiyohi County Attorney, Jennifer K. Fischer, Assistant County Attorney, (for Respondent)
Timothy S. Johnson, Eighth Judicial District Public Defender, William H. McKibbin, Assistant Public Defender, (for Appellant)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Raciel Proenza Zaldivar appeals his sentence from a conviction for disorderly conduct, arguing the district court erred in ordering him to provide a DNA sample. We reverse.
FACTS
Zaldivar, originally charged with criminal sexual conduct in the fifth degree, pleaded guilty to an amended charge of disorderly conduct. At the plea and sentencing hearing, Zaldivar admitted to hugging a female resident of his apartment complex. Zaldivar appeals only that part of the district court's sentence ordering him to provide a biological sample for testing.
DECISION
Minn. Stat. § 609.3461 (1996), entitled "DNA Analysis of Sex Offenders Required," states that, upon sentencing, the district court "shall order an offender to provide a biological specimen for the purpose of DNA analysis" when
(1) the court sentences a person charged with violating or attempting to violate section 609.342, 609.343, 609.344, or 609.345, [first- through fourth-degree criminal sexual conduct] who is convicted of violating one of those sections or of any offense arising out of the same set of circumstances;
(2) the court sentences a person as a patterned sex offender under section 609.1352; * * *
Id., subd. 1.
Unless the defendant is convicted of one of the enumerated sex offenses, a DNA sample cannot be ordered as part of the sentence. The district court agreed that the applicable statute did not require a DNA sample after a disorderly conduct conviction, but felt it was in the best interest of justice to order the sample. We conclude it was an abuse of discretion for the district court to order the DNA sample and that part of the sentencing order is reversed.