In a few specific situations, consecutive sentencing is presumptive meaning that concurrent sentencing would result in a departure. To avoid inadvertent departures, it is helpful to keep in mind the situations in which presumptive consecutive sentencing may be applicable. These are:
If the current offense meets one of the above situations, presumptive consecutive sentencing may be applicable. The next question to ask is is there time remaining on the offense for which I am assigning a custody status point? In many cases, an offender may have been on supervised release at the time of the current offense but by the time the current offense is sentenced the supervised release duration has expired. It is important to remember that in the case of presumptive consecutive sentencing, there must be another unexpired offense to sentence consecutively to.
Digging Deeper: Jail Credit
If an offender has been in jail awaiting sentencing on the current offense, the jail credit must be considered when determining whether presumptive consecutive sentencing is appropriate. When an offender is given a consecutive sentence the jail credit will only count towards one offense. If the the offender receives a concurrent sentence it is likely that jail credit will be applied to both offenses. This mean that if an offender was on supervised release for a 2nd Degree Assault when s/he committed a new 1st Degree Robbery. If the offender was held in jail for one year while the offender was awaiting conviction and sentencing on the new offense jail credit will need to be considered. If sentenced consecutively, the 12 months served in jail will be applied to an aggregated sentence (the time revoked on the supervised release period for the 2nd Degree Assault plus the new sentence for the 1st Degree Robbery). If sentenced concurrently, the 12 months served in jail will be applied to both sentences separately (12 months of the time revoked on the supervised release period and 12 months of the new sentence for the 1st Degree Robbery).
Permissive Consecutive Sentencing is an option for the court to have two or more sentences run consecutively rather than concurrently without a departure. Permissive consecutive sentencing is most commonly used when there are two or more offenses on the permissive consecutive list found in section 6 of the Guidelines. In order for two offenses to be sentenced consecutively they must both have presumptive dispositions of commitment.
The following offenses allow for permissive consecutive sentencing in certain specific situations.
The policy for presumptive consecutive sentencing for a current DWI with a presumptive stayed sentence is unique in that rather than creating a consecutive executed sentence it creates a consecutive stayed sentence.
If there is a prior unexpired misdemeanor, gross misdemeanor, or felony DWI for which the offender is on probation and the current offense is a presumptive stayed sentence, the presumptive executed duration for the new offense would run consecutive to the prior offense.
Minn. Stat. § 169A.28, subd. 1 requires a consecutive sentence when the court sentences an offender for a felony DWI and:
(1) the offender has a prior unexpired misdemeanor, gross misdemeanor or felony DWI sentence; and
(2) the disposition for the current offense will be probation; but not
(3) when the disposition for the current offense will be commitment.
If the court pronounces a consecutive sentence, the presumptive duration is based on a Criminal History Score of 1. Any pronounced probationary jail time should be served consecutively to any remaining time to be served on the prior DWI offense.
Section 2.E.2.c - Controlled Substance Offenses Involving a Dangerous Weapon
Pursuant to Minn. Stat. § 609.11, subd. 5a, some drug offenses committed with a dangerous weapon may be subject to one of the following provisions:
Minn. Stat. § 609.11, subd. 5a, applies to aggravated controlled substance crime in the first degree only if the offender is convicted under Minn. Stat. § 152.021, subd. 2b(2), and the crime was committed with a firearm or other dangerous weapon. Example: An offender with a Criminal History Score of 3 possessed 100 grams of cocaine. Because two of the aggravating factors listed in Minn. Stat. § 152.021, subd. 24, were present, the offender is convicted of aggravated controlled substance crime in the first degree under Minn. Stat. § 152.021, subd. 2b(2). It is also proven that the offender was in possession of a firearm, although the firearm possession was not an element of the crime. The mandatory minimum sentence would be 158 months, calculated as follows:
122 months Mand. Min. (section 2.C.3.c(1); Severity Level D9, Criminal History Score of 3)
+36 months Mand. Min. for weapon (Minn. Stat. § 609.11, subd. 5(a))
= 158 months.
Minn. Stat. § 609.11, subd. 5a, does not apply to Minn. Stat. § 152.021, subd. 2b(1), which, by definition, involves the use or possession of a firearm.
2.E.06 - Commentary
Minn. Stat. § 609.11, subd. 5a, states that for a subsequent controlled substance offense involving a weapon, the mandatory minimum duration of the drug offense and the mandatory minimum duration for the weapon offense are added together. The Guidelines presumptive duration is determined by comparing the total sum of the combined mandatory minimums and the duration found in the appropriate cell on the Drug Offender Grid for the subsequent controlled substance offense; the presumptive duration is the longer of the two. For example: A second-degree drug offender with a Criminal History Score of 2 is convicted of a subsequent controlled substance offense and was in possession of a firearm.
Mandatory Minimums: 36 months Mand. Min. (Minn. Stat. § 152.022, subd. 3(b))
+36 months Mand. Min. (Minn. Stat. § 609.11, subd. 5(a))
= 72 months
Grid Cell: 68 months (Severity Level D7; Criminal History Score of 2)