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Sentencing for Felony Offenses

Sentencing process flowchart

Presentence Investigation and Report

After conviction for a felony offense, the court must order a presentence investigation and written report. A presentence investigation and report is prepared by a probation officer or the Commissioner of Corrections and identifies the defendant’s individual characteristics, circumstances, needs, potentialities, criminal record and social history; the circumstances of the offense; and the harm the offense caused others and the community. The report must include other information in certain types of cases, as specified by law. This report must include a sentencing worksheet to facilitate application of the Minnesota Sentencing Guidelines.

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Imposition/Execution of Sentence

The court must make a decision as to whether to impose and execute a sentence on the defendant, stay imposition and execution of sentence, or stay execution of sentence only. The imposition and execution of sentence are two separate steps. The imposition of sentence involves pronouncing the sentence to be served in prison, but does not actually involve sending the offender to prison. The execution of an imposed sentence consists of transferring the offender to the Commissioner of Corrections’ custody to serve the prison sentence.

If the court decides to impose sentence on a felony offender, the court must sentence the offender to the presumptive sentence called for by the sentencing guidelines or depart from that sentence, unless a mandatory minimum sentence applies. If a mandatory minimum sentence applies to the offender and no departure is allowed or, if allowed, no departure is granted, then the mandatory minimum sentence must be imposed.

Presumptive Sentence

A presumptive sentence is the sentence called for under the sentencing guidelines grid. A presumptive sentence is not the same as the statutory maximum sentence specified by statute; the statutory maximum sentence reflects the maximum length of sentence authorized by law for an offense and is rarely the sentence given to an offender. Instead, the shorter sentence called for by the guidelines is more likely to be imposed. For example, even though the law provides a 20-year felony for first degree assault, it is highly unlikely an offender will receive a 20-year sentence; it’s much more likely the offender will be sentenced to the sentencing guidelines recommendation of 86 months (assuming no prior criminal history).

A presumptive sentence is arrived at by determining the offense’s severity level on a scale of 1 (least severe) to 11 (most severe), as assigned by the Sentencing Guidelines Commission, and an offender’s criminal history score, as determined by the offender’s prior offense history. An offender with no criminal history will have a criminal history score of zero; the criminal history score increases as points are assigned for various offenses.

Information on severity level is contained in the left column of the sentencing grid, and information on offense history is contained along the top row of the grid. The presumptive sentence is expressed in months both as a fixed number and allowable range at the point where the offense severity level and criminal history score intersect on the grid. This sentence is presumed to be appropriate for all typical cases sharing offense severity and criminal history characteristics. The sentencing guidelines grid also indicates whether a presumptive sentence should be executed or subject to a stay of execution. The shaded areas of the grid reflect situations where a presumptive stayed sentence applies, and the nonshaded areas indicate where a presumptive executed sentence applies.

When an offender is being sentenced for more than one offense, the law generally presumes that the multiple sentences will run concurrently; i.e., that they will be served at the same time. Therefore, if someone is sentenced to 48 months for one offense and 36 months for another offense, the person’s total executed sentence will be 48 months. In some cases, however, the law requires and/or the court may order that the sentences run consecutively. In this situation, an offender sentenced to 48 months for one offense and 36 months for another offense would be sentenced to a total executed sentence of 84 months.

Departure from Presumptive Sentence

A departure from a presumptive sentence occurs when the judge gives a sentence that differs from that provided in the sentencing guidelines grid. When substantial and compelling aggravating or mitigating circumstances exist, the judge may depart from the presumptive sentence and impose any sentence authorized by law. If the court departs from the presumptive sentence, the judge must provide written reasons articulating the substantial and compelling circumstances supporting the departure and demonstrating why the sentence imposed is more appropriate or fair than the presumptive sentence.

Types of Departures

There are two types of departures available to the court: dispositional departures and durational departures. A dispositional departure occurs when the sentencing guidelines call for a stay of execution of sentence and the court executes sentence or when the sentencing guidelines call for execution of sentence and the court stays execution of sentence. An upward dispositional departure occurs when the court executes sentence in situations where the sentencing guidelines call for a stay of execution. A downward dispositional departure occurs when the court stays execution of sentence when the guidelines call for execution of sentence.

A durational departure occurs when the length of the sentence pronounced by the court varies from the presumptive sentence called for by the sentencing guidelines grid. An upward durational departure occurs when the sentence pronounced is longer than that called for by the sentencing guidelines grid. A downward departure occurs when the sentence is shorter than that called for by the sentencing guidelines grid.

Pronouncement of Sentence; Term of Imprisonment and Supervised Release

When the court pronounces sentence on an offender, the court identifies both the offender’s term of imprisonment and the offender’s supervised release term. An offender’s term of imprisonment is equal to two-thirds of the total executed sentence (e.g., if the total executed sentence is 36 months, the term of imprisonment is 24 months). The time served may be increased up to the entire length of the executed sentence if the offender is required to serve additional time for disciplinary reasons. (Prior to August 1, 1993, different systems were in place to determine the term of imprisonment.)

Supervised release is the period of time following the term of imprisonment. Under current law, the period of supervised release is one-third of the total executed sentence (e.g., if the total executed sentence is 36 months, the supervised release period is 12 months). In some cases, the supervised release period may be shorter due to additional disciplinary time served by the offender in prison. The Commissioner of Corrections establishes conditions the offender must comply with during supervised release. If those conditions are violated, the commissioner may revoke supervised release and return the offender to prison for a period not greater than the time left on the sentence.

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Stay of Imposition/Execution of Sentence

If a stay of imposition is granted, the imposition (pronouncement) of a prison sentence is delayed to some future date as long as the offender complies with conditions established by the court. If the offender complies with the conditions until the date set by the court, the case is discharged and for civil purposes (e.g., an employment application), the offender has a record of a misdemeanor, as opposed to felony, conviction. If the offender fails to comply with the conditions, the court may hold a hearing and impose sentence only and continue a stay of execution of sentence, or the court may impose and execute sentence on the offender.

If a stay of execution is granted, a prison sentence is imposed, but the execution (i.e., transfer of the person to the Commissioner’s custody) is delayed to some future date as long as the offender complies with conditions established by the court. If the offender complies with those conditions until the date set by the court, the case is discharged, but the offender continues to have a record of a felony conviction. If the offender fails to comply with the conditions, the court may hold a hearing, execute sentence, and transfer the person to the Commissioner’s custody.

The court may not stay imposition or execution of sentence if a sentence of life imprisonment is required by law or in certain cases where a mandatory minimum sentence is required by law.

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Conditions of Stayed Sentence

If a court stays imposition or execution of sentence, the court may place the offender on probation and/or impose other conditions on the offender. These conditions are set forth in the flow chart describing the sentencing phase for felony offenses.

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October 2002

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