State v. Glidden

While I concur with the majority’s determination that the charge and the jury instruction produce a plain and a fundamental error, I respectfully dissent from the majority’s conclusion that State v. Shamp, 422 N.W.2d 736 (Minn.Ct.App.1988), rev’d 427 N.W.2d 228 (Minn.1988) is distinguishable from the instant case.

Initially, it should be noted that the issue addressed by the opinion of this court in this case was not raised before the trial court, nor was it raised or briefed by the parties. The issue of the effect of Minn. Stat. § 609.52, subd. 3(7) was first raised as a result of questioning…