What Is a Durational Departure in Minnesota Sentencing?

Durational departure Minnesota cases change the length of the sentence, not the prison-versus-probation choice. The term is longer or shorter than the presumptive Guidelines range. A longer term is an aggravated durational departure. A shorter term is a mitigated durational departure. However, the court still needs substantial and compelling circumstances. A bare disagreement with the grid is not enough. At Wolfgram Law Firm, our Minnesota criminal defense attorneys separate length fights from stay fights before sentencing memos go out.

What a Durational Departure Minnesota Sentence Changes

Minnesota felony sentencing starts with the Sentencing Guidelines. Those guidelines set a presumptive, fixed sentence and a range around it. Specifically, Minnesota Statute 244.09 directs the Sentencing Guidelines Commission to set when imprisonment is proper. It also directs a presumptive fixed sentence for those cases. The guidelines provide for an increase of 20 percent and a decrease of 15 percent in that fixed sentence. Therefore, the “box” is already a range. A durational departure is a length outside that range, not a move inside it. The court still needs substantial and compelling circumstances to go outside it. In addition, the guidelines are advisory. Still, the court shall follow the guidelines procedures when it pronounces sentence in a covered proceeding. Importantly, sentencing under the guidelines is not a personal right that a defendant owns. It is a statutory procedure the court must still explain on the record.

Aggravated Length Versus Mitigated Length

An aggravated durational departure makes the executed term longer than the presumptive range. The state usually asks for that path when it claims the offense is more serious than the typical case. A mitigated durational departure makes the term shorter than the range. The defense may seek that path when the facts sit below the typical case, or when other substantial reasons exist. However, those labels do not change the charge itself. They change how long the person may serve if the court executes a prison sentence. Moreover, a length departure is not the same as a stay. A person can receive a shorter prison term and still go to prison. As a result, families sometimes hear “departure” and assume probation. That assumption can be wrong if the departure is only durational.

Substantial and Compelling Circumstances

Minnesota law requires substantial and compelling circumstances for a departure. The court must identify those reasons and explain them. For example, the reasons must fit the offense and the offender in a way the typical grid case does not capture. Generic sympathy, standing alone, is a weak foundation. Additionally, facts already built into the offense elements often cannot be recycled as extra reasons. The court looks for circumstances that make the case atypical. Furthermore, both sides should put the reasons in writing. A sentencing memorandum gives the judge a record to adopt or reject. Consequently, oral argument at the hearing still matters. Still, a written record is harder to ignore and easier to review later.

How Durational Departure Minnesota Arguments Are Built

A durational departure Minnesota argument starts with the correct presumptive range. Wrong criminal-history math can send the whole hearing off course. Counsel then compares the file to a typical case at that severity. The question is whether the length should move outside the range.

• Confirm the offense severity and criminal-history calculation
• Identify the presumptive range, including the 15 percent decrease and 20 percent increase around the fixed sentence
• Separate length reasons from stay-or-prison reasons
• Put substantial and compelling facts in a written memorandum
• Prepare for the state’s aggravated-length theories if the prosecutor seeks more time

In addition, plea agreements sometimes include a joint length recommendation. The court is not a rubber stamp, even when both sides agree. However, a clear joint record can still help. Judges often want to see why the agreed length is justified. Moreover, a length fight can sit beside other motions. A charge reduction can change the grid before anyone argues departure at all.

What a Length Departure Does Not Automatically Change

A shorter prison term is still prison if the court executes it. Supervised release, when it later applies, follows an executed sentence, not a stay. Therefore, a mitigated durational result can still mean DOC time. Families should ask which door the person is walking through. Additionally, an aggravated length can stack on top of other limits. Mandatory-minimum statutes, consecutive sentences, and credit fights can still control the calendar. Importantly, the court should state the departure on the record. A silent “different number” without reasons can create later problems. As a result, sentencing day is not only about the number of months. It is about the legal path the judge used to reach that number.

Who Asks for Extra Time or Less Time

The prosecutor may ask for an aggravated length. The defense may ask for a mitigated length. Either side should put the reasons in a memorandum. However, the court may also depart on its own after hearing the facts. A joint recommendation still needs an on-the-record explanation. Additionally, victim-impact information can appear in an aggravated request. Counsel should review that material for claims that go beyond the offense of conviction. Moreover, a presentence investigation can shape the judge’s view of length. Corrections comments are not a verdict, but they often land in the file. For example, a PSI may repeat disputed facts as if they were settled. Counsel should flag those points before sentencing day. Consequently, silence at sentencing can look like agreement. If a length number is wrong, say so on the record.

Timing, Pleas, and the Sentencing Record

A durational departure Minnesota request should be built before the plea is final. Some agreements lock in a range and leave little room to argue later. In addition, a plea to a reduced charge can change the presumptive range before anyone argues departure. Grid work and length work should travel together. However, do not treat a hallway “we’ll ask for the bottom” comment as a granted departure. Only the pronounced sentence counts. Furthermore, credit for time served can change the calendar even when the pronounced term stays the same. Ask how jail credit will be applied. Importantly, Hennepin, Ramsey, and suburban counties may handle sentencing calendars differently. The legal test remains substantial and compelling circumstances. As a result, bring the complaint, any plea petition, and a draft length memo to the first meeting. A late scramble rarely produces a clean record. Additionally, ask whether consecutive sentences or a mandatory minimum will swallow a mitigated length. Those limits can make a departure argument academic. However, a length request can still matter even when another statute sets a floor. The court may still need to state reasons if it goes above that floor.

Talk With Wolfgram Law Firm Before Sentencing

If the state is asking for more time than the range, do not wait until the hearing. A shorter-term request also needs a record the judge can adopt. Wolfgram Law Firm offers a free consultation for Minnesota criminal defense matters. Contact us today through our contact page or call the office before the sentencing date.

Frequently Asked Questions

What is a durational departure in Minnesota? It is a sentence length different from the presumptive Sentencing Guidelines range. Longer is aggravated. Shorter is mitigated. The court still needs substantial and compelling circumstances to go outside the range. Is a shorter prison term the same as probation? No. A mitigated durational departure still executes a prison sentence. It only shortens the length. A stay of imposition or execution is a different decision, often called a dispositional departure when it differs from the presumptive disposition. Do the Guidelines already include some extra or less time? Yes. Statute 244.09 provides for a 20 percent increase and a 15 percent decrease around the presumptive fixed sentence. A durational departure is a length outside that range, not a move inside it. This article is provided for informational purposes only and does not constitute legal advice. Every criminal case is unique. If you need legal advice regarding your specific situation, consult our experienced Minnesota criminal defense attorney.