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Departing from the Presumptive Sentence

The purpose of the Sentencing Guidelines is to establish rational and consistent sentencing standards that reduce sentencing disparity and ensure that the sanctions imposed for felony convictions are proportional to the severity of the conviction offense and the offender's criminal history. Guidelines sentences are presumed to be appropriate for all typical cases sharing similar criminal history and offense severity characteristics. There are times, however, when substantial and compelling aggravating or mitigating factors are present; in these cases the court may depart from the presumptive sentence. The appropriate use of departures by the courts when substantial and compelling circumstances exist can actually enhance uniformity and proportionality by varying the sanction in an atypical case. The Commission regularly examines departure patterns and the reasons cited therefor to determine if adjustments to the Guidelines are warranted.

In some cases, a departure will be agreed upon by the parties as part of the plea agreement. When a plea agreement is made that involves a departure from the presumptive sentence, the court should cite the reasons that underlie the plea agreement or explain the reasons the negotiation was accepted.

The sentencing ranges provided on the Grids are presumed to be appropriate for the crimes to which they apply. A sentence outside the applicable range on the Grid is a departure from the Sentencing Guidelines and is not controlled by the Guidelines, but rather, is an exercise of judicial discretion constrained by case law and appellate review.

Departures can change the disposition (i.e. prison vs. probation) or duration (length of prison term) and may either be aggravated (harsher) or mitigated (less severe). Departures with respect to disposition and duration are separate decisions. A court departing from the presumptive disposition as well as the presumptive duration has made two separate departure decisions, each requiring written departure reasons. In exercising the discretion to depart from a presumptive sentence, the court must disclose in writing or on the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence. The reasons must be stated in the sentencing order or recorded in the departure report filed with the Commission.

Key Point: There are common situations that practitioners often believe are not departures but are. They include:

  • A Stay of Adjudication that is revoked to prison when the Guidelines recommend a presumptive stayed sentence. This is a departure because the Stay of Adjudication is not a sentence therefore at revocation it should be treated as the original sentence.
  • A felony sentenced to less than a year and a day (without amending the charge to a gross misdemeanor or misdemeanor). If the conviction offense is a felony, sentencing the offense as a gross misdemeanor or misdemeanor is a departure because the sentence is outside the appropriate range on the applicable Grid. Minn. Sentencing Guidelines 2.D.1
For more information on departures, see section 2.D. of the Guidelines.
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