Criminal History Calculation

General Rules

Even though criminal history may go back several years, the Guidelines in effect when the current offense was committed must be used to determine the eligibility of and to assign the point or unit values for previous offenses. The only exception to this is when the offense severity level is determined by a monetary threshold. The weight assigned to the prior will be based on the severity level assigned when the monetary threshold was in effect.

The offense level (felony, misdemeanor etc.) is determined in part by the sentence imposed. See Minn. Stat. § 609.13. The definitions of offense levels is found in Minn. Stat. § 609.02 subd. 2-4a.

Felony

Eligible Prior Felony Offenses are offenses that received an imposed felony level sentence or a stay of imposition for a felony level offense prior to sentencing on the current offense(s). 

  • NOTE: Even though a stay of imposition for a felony may result in the conviction being recorded as a misdemeanor in a prior record summary if the defendant successfully completes probation, for criminal history purposes it is entered as a prior felony on the worksheet regardless of the duration of probation pronounced.

Steps to Finding the Weight of a Prior Felony 

Step #1    Use the Guidelines in effect when the current felony offense occurred.

Step #2    Find the Severity Level that is currently assigned to the prior felony offense.

  • Because the Commission issued a separate Sex offender Grid in 2006, a prior sex offense that was previously assigned a numerical severity level may have to be translated to an alpha severity level corresponding to the Sex Offender Grid  if the current offense was committed on or after 8/1/2006.
  • The monetary threshold for Theft and Theft-Related offenses was modified by the Legislature in 2007. Use the severity level assigned to the offense when it was originally sentenced to find the correct weight. 
    • The previous threshold of over $500 is now over $1,000
    • The previous threshold of over $2,500 is now over $5,000
      • Example: A Felony Theft of Property under Minn. Stat. § 609.52, subd. 2(1) and subd. 3(2) in the amount of $2,700 would have been assigned a Severity Level 3 as a Theft over $2,500 prior to 2007. Since that is the same value as a Theft over $5,000 now, you would retain the Severity Level of 3 when assigning a point.

Step #3    Use the appropriate weighting scale based on the type of current offense. There are two weighting scales: one for offenses that will be sentenced using the Sex Offender Grid and the other for offenses that will be sentenced using the Standard Grid. 

Digging Deeper Digging Deeper: Assigning Felony Weights
  • Modifiers: When a prior offense included a sentence modifier, such as attempt under Minn. Stat. § 609.17 or conspiracy under Minn. Stat. §§ 609.175 or 152.096, the prior conviction must be given the same felnoy weight as a completed offense.
  • Unranked Offenses: If a prior offense is unranked, use the weight corresponding to the Severity Level assigned by the court sentencing the prior offense. If, however, a previously unranked offense was ranked at the time the current offense was committed, use the weight corresponding to the severity level assigned when the current offense was committed.


Official Guidelines language on this topic can be found in  Minn. Sentencing Guidelines  § 2.B.1. 

(Gross) Misd.

Eligible Misdemeanor and Gross Misdemeanor Offenses are offenses that received an imposed misdemeanor or gross misdemeanor sentence or a stay of imposition for a misdemeanor or gross misdemeanor offense prior to sentencing on the current offense. The eligibility of misdemeanor and gross misdemeanor offenses for inclusion in criminal history will depend on the date the current offense is committed. If the current offense was on or after August 1, 2010 eligible priors include targeted misdemeanors, all non-traffic gross misdemeanors, and DWIs. For offenses committed prior to August 1, 2010, the offense must be on the Misdemeanor and Gross Misdemeanor Offense List. Eligible priors in the gross misdemeanor/misdemeanor section are generally assigned 1 unit; 4 units make 1 criminal history point.

  • NOTE: This does not include misdemeanor or gross misdemeanor Driving While Impaired or Refusal to Test offenses convictions committed when the offender was 16 or 17 years old, even though the DWI was processed in adult court under Minn. Stat. § 260B.225, subds. 3 and 8.
Digging DeeperDigging Deeper: Enhancing Offenses
  • Prior misdemeanors and gross misdemeanors used to enhance the current offense to a felony should not be listed in criminal history and are not eligible for units. 
  • When the current offense is a felony DWI or a Criminal Vehicular Operation (CVO) prior misdemeanor or gross misdemeanor DWIs and CVOs not used to enhance will be assigned 2 units.

Mouse 3 Electronic Worksheet System Hint: Priors in the Misd./GM Section
In 2010, the Guidelines Commission eliminated the Misdemeanor and Gross Misdemeanor Offense List, and implemented a policy of allowing all gross misdemeanor and targeted misdemeanor offenses to be used in criminal history. If the date of offense is August 1, 2010 or later, make sure that any prior misdemeanors you are using are targeted misdemeanors as defined in Minn. Stat. § 299C.10, subd. 1(e).

Minn. Stat. § 609.13 provides that even if the offense level is higher, the conviction will be deemed to be for a gross misdemeanor or misdemeanor if the sentence given is within those limits. Guidelines section 2.B.3 provides that these reduced convictions must be included in the misdemeanor/gross misdemeanor section of the criminal history score. Because the conviction level can depend on the sentence imposed, it is important to indicate the offense level on the worksheet after each felony offense sentenced as a gross misdemeanor or misdemeanor and after each gross misdemeanor sentenced as a misdemeanor. To help the worksheet move smoothly through the review process, indicate the conviction level by including (GM) for gross misdemeanor and (M) for misdemeanor. For example, if a felony theft offense is sentenced as a gross misdemeanor, if (GM were indicated, MSGC staff would not need to place the worksheet on hold to check on the offense level. 

Key Point 3 Key Point: Although all felony level convictions sentenced to less than 1 year and 1 day are eligible to be used in the misdemeanor/gross misdemeanor section for 1 unit, this does not apply to gross misdemeanor offenses sentenced to a misdemeanor level duration. These offenses must be found on the Targeted Misdemeanor list in order to be assigned 1 unit

Official Guidelines language on this topic can be found in  Minn. Sentencing Guidelines  § 2.B.3.

Juvenile

Eligible Prior Juvenile Offenses are felony-level offenses for which the juvenile was adjudicated delinquent prior to sentencing on the current offense. The juvenile adjudications must have been for offenses committed after the offender's fourteenth birthday and the offender must have been under the age of twenty-five when the offender committed the current felony.

Digging Deeper Digging Deeper: Criteria for Additional Juvenile History Points 

An offender may receive only one point for juvenile adjudications, but the point limit does not apply to juvenile adjudications for offenses for which the Sentencing Guidelines would presume imprisonment if the offense had been committed by an adult.

  • The additional offense must meet the criteria regarding age, offense type, and adjudication. 
  • The additional offenses must be presumptive commits, regardless of criminal history score. 
    • What qualifies? Offenses at Severity Levels 8-11 and Severity Levels A-C attempted murder, any other offenses for which the Guidelines presumes commitment ("presumptive commit") (i.e., second or subsequent offenses, offenses with a statutory or mandatory disposition of commit). Minn. Sentencing Guidelines §§ 2.C and 2.E.
  • Two juvenile priors are still needed to make the additional point. 
  • There is no limit to the number of points the offender can receive from these specific types of juvenile priors. 

Click here for an example

Official Guidelines language on this topic can be found in  Minn. Sentencing Guidelines  § 2.B.4. 

Non-MN

An Eligible Non-Minnesota Offense is used in criminal history based on how it relates to Minnesota law and sentencing policies. Keep in mind, there is no special trick to equating a non-Minnesota offense to a Minnesota offense for criminal history. The final determination of how a non-Minnesota offense is used in criminal history is up to the court. This is especially important in situations where there is not sufficient information to equate the non-Minnesota offense to a Minnesota offense.

Tools Helpful Tools: Accessing other States’ Statutes is the best way to gain information about an offense. The Legal Information Institute, housed at Cornell University Law School, provides links on its website to state statute resources across the country. For your convenience, here are direct links to the more common states: Illinois, Iowa, North Dakota, South Dakota, and Wisconsin. For federal offenses, the Office of the Law Revision Counsel provides a link to the United States Code. For finding the Minnesota statute, the Office of the Revisor of Statutes publishes statutes that can be searched by number or keyword.  

Caution 2 Caution: Just because the non-MN offense says "Theft of Property"or "Controlled Substance," there are certain thresholds found in statute that have to be met before the offense can be assigned a value in criminal history. See our example theft offense for more information. For controlled substance offenses, both the drug and the amount will need to be known to find the Minnesota equivalent. This handout, MN Controlled Substance Thresholds, will assist you when you have that information in determining which degree of drugs the non-Minnesota prior should be equated to.


After determining a Minnesota equivalent offense, the prior offense may be eligible to be used criminal history under the policies outlined in Minn. Sentencing Guidelines § 2.B. For example, offenses equating to a felony in definition will be used in criminal history in accordance to the policies in § 2.B.1 and statutory equivalents to gross misdemeanors and misdemeanors will be used in criminal history in accordance to the policies in § 2.B.3. To determine if the offense should be used for a custody status, see the policies in § 2.B.2.

Key Point 3 Key Points

Remember that a non-Minnesota offense may be counted as a felony in criminal history only if it would be defined as a felony in Minnesota and the offender received an imposed sentence of at least 1 year and 1 day or the equivalent of a stay of imposition. If the prior offense meets the definition of a Minnesota felony but the offender received a sentence of less than 1 year and 1 day, Guidelines policies state that the offense can be used in the misdemeanor/gross misdemeanor section for 1 unit.

Unless the prior juvenile felony offense directly matches Minnesota’s policies regarding age, type of offense, and adjudication of delinquency as stated in § 2.B.4, the factfinder will have to make a determination as to whether or not the prior offense will be used in criminal history.


Official Guidelines language on this topic can be found in  Minn. Sentencing Guidelines  § 2.B.5.

Custody

A Custody Status Point is assigned when the offender is on supervised or unsupervised custody following a guilty plea (including Minn. Stat. § 152.18), guilty verdict, or conviction when the current offense is committed for an adult-level offense listed below.

Note: If the current offense is a sex offense and the offender was under supervision for a sex offense, two custody status points may apply.

  • Felony 
  • Non-traffic gross misdemeanor 
  • Gross misdemeanor DWI or refusal to submit to a chemical test
  • Extended Jurisdiction Juvenile (EJJ) 
  • Targeted misdemeanor

Note: For offenses committed before August 1, 2010, misdemeanors were not eligible for a custody status point. Beginning August 1, 2010, only misdemeanors defined as targeted misdemeanors under Minn. Stat. § 299C.10 subd. 1(e) are eligible for a custody status point.

CUSTODY STATUS TYPE

WHEN TO USE

Probation Supervision for a non-executed sentence after receiving a stay of imposition or stay of execution.
Within Original Probation Period Discharged from probation; however, committed the offense within the initial period of probation pronounced by the court. Do NOT assign a point if probation is revoked and the offender serves an executed sentence.
Confined         Confinement in a jail or workhouse following a guilty plea (including Minn. Stat. § 152.18, subd. 1), guilty verdict, or conviction; or confined in prison.
Release Pending Sentencing Released awaiting sentencing following a guilty plea, a guilty verdict, or conviction.
Parole/Supervised Release Supervision after release from an executed prison sentence.
Conditional Release Supervision period that follows supervised release. Conditional release applies to specific offenses including certain sex offenses and felony DWI. See the Conditional Release Reference Table for a complete list.
EJJ Status Supervision for a stayed adult sentence with a juvenile disposition. Prior EJJ
offenses are included in the felony section of criminal history; do NOT assign a point if the prior offense is included in the juvenile prior history section.
Escape The offense occurs after escaping from an executed sentence. For example, an offender escapes from a MN Correctional facility and steals a car.

Digging Deeper Digging Deeper : Confined Status

An offender may be assigned a custody status point of Confined, even if that confinement is in a jail or workhouse before sentencing so long as it is after a guilty plea, guilty verdict, or conviction.

Example 1:
Example 2:
An offender commits an assault in jail after pleading guilty to another  offense. 
An offender escapes from the workhouse after being sent there to serve time that was a condition of a probationary sentence. 

Key Point 3 Key Point: A custody status point will NOT be assigned for:
  • Juvenile probation, even for felony-level offenses.
  • Stay of adjudication NOT under Minn. Stat. § 152.18 subd. 1.
  • Probation for any other type of non-imposed sentence such as a continuance for dismissal.
  • Probation for a DWI committed when the offender was 16 or 17 years old, even though the DWI was processed in adult court under Minn. Stat. § 260B.225, subds. 3 and 8. 
  • The offender was committed for treatment or examination pursuant to Minn. R. Crim. P. 20.
  • The offender committed the current offense before 8/1/2010 and is under custody status is for a misdemeanor-level offense.
  • The offender committed the current offense on or after 8/1/2010 and is under custody status for a misdemeanor offense that is not a targeted misdemeanor. 


Official Guidelines language on this topic can be found in Minn. Sentencing Guidelines § 2.B.2.

Hernandizing

"Hernandize" is the unofficial term for the process described in Minn. Sentencing Guidelines § 2.B.1.e of counting criminal history when multiple offenses are sentenced on the same day before the same court. For example, an offender is sentenced on the same day before the same court for two counts of theft. Count 1, having received a sentence before count 2, will now be incorporated or "Hernandized" into the criminal history score used when sentencing count 2. Because of the application of the Hernandize method, an offense does not have to be a true prior in order to be included in criminal history.

There are two circumstances in which the conviciton and sentence for the earlier offense will not be used to increase the criminal history score of the later offense:

  1. Multiple offenses arising from a single course of conduct involving a felony Burglary under Minn. Stat. § 609.585, Kidnapping under Minn. Stat. § 609.251, or Methamphetamine-related crimes involving a child or vulnerable adult under Minn. Stat. § 152.137.
  2. Multiple offenses arising from a single course of conduct involving multiple victims. 
    • In this situation, multiple offenses can be sentenced but only two offenses at the highest severity levels can be Hernandized. 
Mouse 3 Electronic Worksheet System Hint: Adding Offenses on the Same Worksheet
When multiple sentences are imposed at the same time, use "Add Offense to Case" if there are multiple counts under the same case number, or "Add Related Court Case" when there are multiple case numbers.

By using these links, the offender information will only need to be entered once. When adding an additional offense, the “Add New Offense” screen will appear. When adding an additional case number, the “Court Case Entry” screen will appear. Enter all required information for each offense including prior history and the presumptive sentence before adding the next offense or case number. There will be an option to copy priors so criminal history will not have to be retyped for each new offense.

Official Guidelines language on this topic can be found in  Minn. Sentencing Guidelines  § 2.B.1.

Enhanced Felony

Enhanced Felony Offenses are offenses that are felonies solely because the offender has previous convictions for similar misdemeanor or gross misdemeanor offenses.

How to Calculate in Criminal History: 

  • Prior misdemeanors/gross misdemeanors used to enhance cannot be used in the calculation of a point for the offense they are enhancing. 
  • Priors used to enhance can be used to determine custody status. 
  • Unlike prior misdemeanor/gross misdemeanors, felonies used to enhance will be included in criminal history.
Digging Deeper Digging Deeper: Enhanced Felonies in Future Offenses

For most enhanced offenses, such as Domestic Assault, the prior misdemeanor and/or gross misdemeanor offenses used to enhance are only removed from the felony they are enhancing. This means that for future offenses they can be used in criminal history along with the felony that was enhanced. The exception to this rule is felony DWI. Remember to always remove the three misdemeanor or gross misdemeanor DWI offenses used to enhance the DWI to a felony. Once those three are used to enhance, they are removed permanently from criminal history on any future felony DWI; they are eligible to be used on any other felony. 

Mouse 3Electronic Worksheet System Hint: Note Offenses Used to Enhance

It is helpful to list the prior misdemeanor or gross misdemeanor offenses used to enhance the current felony in the “Comments” section of the worksheet. This way the worksheet reviewer will know which offenses were used to enhance the felony, and agents looking at the worksheet in the future will know which offenses may or may not be eligible for use in criminal history.

Official Guidelines language on this topic can be found in  Minn. Sentencing Guidelines  § 2.B.6.