Presentence Investigation and Report
After conviction for a felony offense, the court must order
a presentence investigation and written report. A presentence investigation and
report is prepared by a probation officer or the Commissioner of Corrections and
identifies the defendant’s individual characteristics, circumstances, needs,
potentialities, criminal record and social history; the circumstances of the
offense; and the harm the offense caused others and the community. The report
must include other information in certain types of cases, as specified by law.
This report must include a sentencing worksheet to facilitate application of the
Minnesota Sentencing Guidelines.
Imposition/Execution of Sentence
The court must make a decision as to whether to impose and
execute a sentence on the defendant, stay imposition and execution of sentence,
or stay execution of sentence only. The imposition and execution of sentence
are two separate steps. The imposition of sentence involves pronouncing the
sentence to be served in prison, but does not actually involve sending the
offender to prison. The execution of an imposed sentence consists of
transferring the offender to the Commissioner of Corrections’ custody to serve
the prison sentence.
If the court decides to impose sentence on a felony
offender, the court must sentence the offender to the presumptive sentence
called for by the sentencing
guidelines or depart from that sentence, unless a mandatory minimum sentence
applies. If a mandatory minimum sentence applies to the offender and no
departure is allowed or, if allowed, no departure is granted, then the mandatory
minimum sentence must be imposed.
Presumptive Sentence
A presumptive sentence is the sentence called for under the
sentencing guidelines grid. A presumptive
sentence is not the same as the statutory maximum sentence specified by statute;
the statutory maximum sentence reflects the maximum length of sentence authorized by law for an
offense and is rarely the sentence given to an offender. Instead, the shorter
sentence called for by the guidelines is more likely to be imposed. For
example, even though the law provides a 20-year felony for first degree
assault, it is highly unlikely an offender will receive a 20-year sentence;
it’s much more likely the offender will be
sentenced to the sentencing guidelines recommendation of 86 months (assuming no
prior criminal history).
A presumptive sentence is arrived at by determining the
offense’s severity level on a scale of 1 (least severe) to 11 (most severe), as
assigned by the
Sentencing
Guidelines Commission, and an offender’s criminal history score, as
determined by the offender’s prior offense history. An offender with no
criminal history will have a criminal history score of zero; the criminal
history score increases as points are assigned for various offenses.
Information on severity level is contained in the left column of the
sentencing grid, and
information on offense history is contained along the
top row of the grid. The presumptive sentence is expressed in months both as a
fixed number and allowable range at the point where the offense severity level
and criminal history score intersect on the grid. This sentence is presumed to
be appropriate for all typical cases sharing offense severity and criminal
history characteristics. The sentencing guidelines grid also indicates whether
a presumptive sentence should be executed or subject to a stay of execution.
The shaded areas of the grid reflect situations where a presumptive stayed
sentence applies, and the nonshaded areas indicate where a presumptive executed
sentence applies.
When an offender is being sentenced for more than one offense,
the law generally presumes that the multiple sentences will run concurrently;
i.e., that they will be served at the same time. Therefore, if someone is
sentenced to 48 months for one offense and 36 months for another offense, the
person’s total executed sentence will be 48 months. In some cases, however, the
law requires and/or the court may order that the sentences run consecutively.
In this situation, an offender sentenced to 48 months for one offense and 36
months for another offense would be sentenced to a total executed sentence of
84 months.
Departure from Presumptive Sentence
A departure from a presumptive sentence occurs when the judge
gives a sentence that differs from that provided in the
sentencing guidelines grid.
When substantial and compelling aggravating or mitigating
circumstances exist, the judge may depart from the presumptive sentence and
impose any sentence authorized by law. If the court departs from the
presumptive sentence, the judge must provide written reasons articulating the
substantial and compelling circumstances supporting the departure and
demonstrating why the sentence imposed is more appropriate or fair than the
presumptive sentence.
Types of Departures
There are two types of departures available to the court:
dispositional departures and durational departures. A dispositional departure
occurs when the sentencing guidelines call for a stay of execution of sentence
and the court executes sentence or when the sentencing guidelines call for
execution of sentence and the court stays execution of sentence. An upward
dispositional departure occurs when the court executes sentence in situations
where the sentencing guidelines call for a stay of execution. A downward
dispositional departure occurs when the court stays execution of sentence when
the guidelines call for execution of sentence.
A durational departure occurs when the length of the sentence
pronounced by the court varies from the presumptive sentence called for by the
sentencing guidelines grid. An upward durational departure occurs when the
sentence pronounced is longer than that called for by the sentencing guidelines
grid. A downward departure occurs when the sentence is shorter than that called
for by the sentencing guidelines grid.
Pronouncement of Sentence; Term of Imprisonment and Supervised Release
When the court pronounces sentence on an offender, the court
identifies both the offender’s term of imprisonment and the offender’s
supervised release term. An offender’s term of imprisonment is equal to
two-thirds of the total executed sentence (e.g., if the total executed sentence
is 36 months, the term of imprisonment is 24 months). The time served may be
increased up to the entire length of the executed sentence if the offender is
required to serve additional time for disciplinary reasons. (Prior to August 1,
1993, different systems were in place to determine the term of imprisonment.)
Supervised release is the period of time following the term of
imprisonment. Under current law, the period of supervised release is one-third
of the total executed sentence (e.g., if the total executed sentence is 36
months, the supervised release period is 12 months). In some cases, the
supervised release period may be shorter due to additional disciplinary time
served by the offender in prison. The Commissioner of Corrections establishes
conditions the offender must comply with during supervised release. If those
conditions are violated, the commissioner may revoke supervised release and
return the offender to prison for a period not greater than the time left on the
sentence.
Stay of Imposition/Execution of Sentence
If a stay of imposition is granted, the imposition
(pronouncement) of a prison sentence is delayed to some future date as long as
the offender complies with conditions established by the court. If the offender
complies with the conditions until the date set by the court, the case is
discharged and for civil purposes (e.g., an employment application), the
offender has a record of a misdemeanor, as opposed to felony, conviction. If
the offender fails to comply with the conditions, the court may hold a hearing
and impose sentence only and continue a stay of execution of sentence, or the
court may impose and execute sentence on the offender.
If a stay of execution is granted, a prison sentence is
imposed, but the execution (i.e., transfer of the person to the Commissioner’s
custody) is delayed to some future date as long as the offender complies with
conditions established by the court. If the offender complies with those
conditions until the date set by the court, the case is discharged, but the
offender continues to have a record of a felony conviction. If the offender
fails to comply with the conditions, the court may hold a hearing, execute
sentence, and transfer the person to the Commissioner’s custody.
The court may not stay imposition or execution of sentence
if a sentence of life imprisonment is required by law or in certain cases where
a mandatory minimum sentence is required by law.
Conditions of Stayed Sentence
If a court stays imposition or execution of sentence, the
court may place the offender on probation and/or impose other conditions on the
offender. These conditions are set forth in the flow chart describing the
sentencing phase for felony offenses.
October 2002