Consecutive Sentences

Generally, when an offender receives multiple sentences the durations will run concurrently. However, there are a few situations in which the court may sentence consecutively. The most common consecutive sentencing situations are outlined below. There are several offenses which have specific consecutive sentencing rules either in statute or in the Guidelines. For these offenses it is important to refer to the Guidelines in effect at the time of the current offense to ensure the appropriate policies are followed.

Presumptive Consecutive

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:

    FOR OFFENSES COMMITTED AFTER AUGUST 1, 2016

    When the offender was, at the time of the current offense:

    Serving an executed term of imprisonment, disciplinary confinement, or reimprisonment; or

on escape statute from an executed term of imprisonment, disciplinary confinement,

or reimprisonment; and

    The presumptive disposition for the current offense(s) is commitment.

The current offense is a felony DWI for which the disposition is probation; and

the offender is a prior unexpired misdemeanor, gross misdemeanor, or felony DWI sentence.

    FOR OFFENSES COMMITTED BEFORE AUGUST 1, 2016

    When an offender was, at the time of the current offense:

Serving an executed prison sentence, on escape status from an executed prison sentence, on

supervised release, or on conditional release following release from an executed prison sentence;

and

The presumptive disposition for the current offense(s) is commitment.

    The current offense is a felony DWI for which the disposition is probation; and

    the offender is a prior unexpired misdemeanor, gross misdemeanor, or felony DWI sentence.

Note: The unique policy for presumptive consecutive sentencing are outlined in the DWI tab on this page.

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.

    FOR OFFENSES COMMITTED ON OR AFTER AUGUST 1, 2016

   Section 2.F.1 - Presumptive Consecutive Sentences

   a. Criteria for Imposing a Presumptive Consecutive Sentence. Consecutive sentences are

   presumptive (required under the Guidelines) when:



         (1) the offender was, at the time of the current offense:

             (i) serving an executed term of imprisonment, disciplinary confinement, or reimprisonment; or

             (ii) on escape status from an executed term of imprisonment, disciplinary confinement,

            or reimprisonment; and

        (2) the presumptive disposition for the current offense(s) is commitment.

   b. Finding the Presumptive Disposition. The presumptive disposition for an escape from an

executed sentence or for a felony assault committed by an inmate serving an executed term of

   imprisonment is always commitment. In all other cases, the presumptive disposition is determined

  using the criteria in section 2.C.

  c. Finding the Presumptive Duration. For each offense sentenced consecutively to another

  offense(s) under this section, the presumptive duration is the duration in the appropriate cell

  on the applicable Grid at a Criminal History Score of 1, or the mandatory minimum for the offense,

  whichever is longer.

  d. Exception When Presumptive Concurrent Sentence is Longer. If the criteria in paragraph

  2.F.1.a have been met but the total time to serve in prison would be longer if a concurrent

  sentence were imposed, a concurrent sentence is presumptive. Otherwise, a concurrent sentence

  is a departure.

   e. Consecutive Sentences for Multiple Offenses. When the court pronounces presumptive

   consecutive sentences for multiple offenses, each new offense will be sentenced at a Criminal

History Score of 1. The new offenses will run concurrently to each other, but consecutive to the

prior offense. Permissive consecutive sentencing under section 2.F.2 is not a departure if it would

  result in a longer sentence than the sentence resulting from this rule.

  f. Departure Factor. If there is evidence that the defendant has provided substantial and material

   assistance in the detection or prosecution of crime, the court may depart from the presumptive

  consecutive sentence and impose a concurrent sentence.

  g. Felony Driving While Impaired (DWI). 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.

    FOR OFFENSES COMMITTED BEFORE AUGUST 1, 2016

  Section 2.F.1 - Presumptive Consecutive Sentences

   a. Criteria for Imposing a Presumptive Consecutive Sentence. Consecutive sentences are

  presumptive (required under the Guidelines) when:

  (1) the offender is:

        (i) serving an executed prison sentence;

            (ii) on escape status from an executed prison sentence;

            (iii) on supervised release; or

            (iv) on conditional release following release from an executed prison sentence; and

  (2) the presumptive disposition for the current offense(s) is commitment. The presumptive

  disposition for an escape from an executed sentence or for a felony assault committed by an

  inmate serving an executed term of imprisonment is always commitment.

      b. Finding the Presumptive Duration. For each offense sentenced consecutively to another

offense(s) under this section, the presumptive duration is the duration in the appropriate cell on the

applicable Grid at a Criminal History Score of 1, or the mandatory minimum for the offense,

whichever is longer.

  c. Exception When Presumptive Concurrent Sentence is Longer. If the criteria in paragraph

  2.F.1.a have been met but the total time to serve in prison would be longer if a concurrent

  sentence were imposed, a concurrent sentence is presumptive. Otherwise, a concurrent

  sentence is a departure.

  d. Departure Factor. If there is evidence that the defendant has provided substantial and material

  assistance in the detection or prosecution of crime, the court may depart from the presumptive

  consecutive sentence and impose a concurrent sentence.

  e. Felony Driving While Impaired (DWI). 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.



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

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.

Escape or Felonies Committed after an Escape (Minn. Stat. § 609.485)

Fleeing a Peace Officer (Minn. Stat. § 609.487)

Criminal Sexual Conduct in the First through Fourth Degrees with force or violence

Felony Assault while in a Local Jail or Workhouse

Section 2.F.2 - Permissive Consecutive Sentences

a. Criteria for Imposing a Permissive Consecutive Sentence. Consecutive sentences are permissive (may be given without departure) only in the situations specified in this section. For each felony offense sentenced consecutively to another felony offense(s), the court must use a Criminal History Score of 0, or the mandatory minimum for the offense, whichever is longer, to determine the presumptive duration. A consecutive sentence at any other duration is a departure.

    (1) Specific Offenses; Presumptive Commitment. Consecutive sentences are permissive if the

  presumptive disposition for the current offense(s) is commitment, as outlined in section 2.C,

and paragraph (i), (ii), or (iii) applies. If the court  pronounces a consecutive stayed sentence

  under one of these paragraphs, the stayed sentence is a mitigated dispositional departure,

   but the consecutive nature of the sentence is not a departure. The consecutive stayed

  sentence begins when the offender completes the term of imprisonment and is placed on

  supervised release.

  (i) Prior Felony Sentence. A current felony conviction for a crime on the list in section 6 of offenses

   eligible for permissive consecutive sentences may be sentenced consecutively to a prior felony

   sentence that has not expired or been discharged if the prior felony conviction:

        (a) is for a crime on the list in section 6 of offenses eligible for permissive consecutive sentences;

        or

          (b) is from a jurisdiction other than Minnesota and would be equivalent to a crime on the list in

        section 6.

  The presumptive disposition for the prior offense(s) must also be commitment as outlined in

  section 2.C. A non-Minnesota conviction is equivalent to a crime on the list in section 6 if it

  would both be defined as a felony in Minnesota, and received a sentence that in Minnesota

  would be a felony-level sentence, including the equivalent of a stay of imposition.

  (ii) Multiple Current Felony Convictions. If the Offender is being sentenced for multiple current

  felony convictions for crimes on the list of offenses eligible for permissive consecutive sentences

  in section 6, the convictions may be sentenced consecutively to each other.

  (iii) Felony Convictions After Escape (Non-Executed Sentence). If the offender commits and is

  convicted for a new felony crime while on felony escape from lawful custody - as defined in Minn.

  Stat. § 609.485 - from a non-executed felony sentence, the new felony conviction may be

  sentenced consecutively to the sentence for the escape or the offense for which the offender

        was confined.

  (2) Other Offenses. Consecutive sentences for the following offenses are always permissive and

  there is no dispositional departure if the sentences are executed.

   (i) Felony Escape. If the offender is convicted of felony escape from lawful custody - as defined in

  Minn. Stat. § 609.485 - and the offender did not escape from an executed prison sentence, the

  escape may be sentenced consecutively to the sentence for which the offender was confined.

  (ii) Felony Conviction After Escape (Executed Sentence). If the offender committed and is

  convicted for a new felony crime committed while on felony escape from lawful custody - as

  defined in Minn. Stat. § 609.485 - from an executed felony sentence, the new felony may be

  sentenced consecutively to the sentence for the escape.

  (iii) Fleeing a Police Officer; Criminal Sexual Conduct. The court may impose consecutive

  sentences as permitted under Minn. Stat. § 609.035, subds. 5 and 6 if both of the following occur:

        (a) The offender is convicted of either of the following offenses:

  Fleeing a Peace Officer in a Motor Vehicle, as defined in Minn. Stat. § 609.487; or

            Criminal Sexual Conduct in the First through Fourth Degrees with force or violence,

            as defined in Minn. Stat. §§ 609.342 through 609.345; and

            (b) the court imposes punishment for any other crime committed by the defendant

        as part of the same conduct.

  (iv) Felony Assault in a Local Jail or Workhouse. If the offender is convicted of felony

  assault committed while in a local jail or workhouse, the felony assault conviction may

  be sentenced consecutively to any other executed prison sentence if the presumptive

  disposition for the other offense was commitment as outlined in section 2.C.
DWIs

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.

Section 2.F.1.g - Felony Driving While Impaired (DWI)
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.
Controlled Substance Offenses Involving a Dangerous Weapon

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:

  1) Certain Aggravated First-Degree Offenses. If an offender is sentenced for aggravated controlled substance crime in the first degree under Minn. Stat. § 152.021, subd. 2b(2), and is also subject to Minn. Stat. § 609.11, subd. 5a, the presumptive duration is the mandatory minimum sentenced described in section 2.C.3.c(1) added to the mandatory minimum sentence for the dangerous weapon involvement found in Minn. Stat. § 609.11, subd. 4 or 5.

2) Subsequent Controlled Substance Offenses. If an offender is sentenced for a subsequent controlled substance offense and is subject to Minn. Stat. § 609.11, subd. 5a, the presumptive duration is the longer of either:

      (i) the mandatory minimum sentence for the subsequent controlled substance offense added to the mandatory minimum sentence for the dangerous weapon involvement; or

      (ii) the presumptive duration for the subsequent controlled substance offense provided in the appropriate cell on the Drug Offender Grid and limited, if applicable, by section 2.C.3.c(1).



2.E.05 - Commentary

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

vs.

Grid Cell:                  68 months (Severity Level D7; Criminal History Score of 2)