VIEWPOINT: Determining sentence eligibility

Editor’s note: This is the second of four columns addressing how judges issue sentences

In the last column I described Minnesota’s general system for determining sentences in felony criminal cases. Today’s column describes how judges determine if a person is sent to prison or not. Recall that Minnesota has a “determinate” sentencing system. The presumed proper sentence is arranged on a sentencing guidelines grid. Judges have only limited discretion to deviate from the presumed sentence.

One side of the grid lists a defendant’s criminal history score. Another side lists the severity level of a crime. Severity levels range from level 1 (the lowest) to level 11. Where the criminal history and severity level intersect there is a box. The box tells a judge whether the defendant is presumed to be sent to prison or to receive a stayed prison sentence.

Assume a man pleads guilty to residential burglary - a Level 5 offense - and that his criminal history score is 2. (This means that he likely has two prior felony convictions.) The guidelines grid presumes a 28 month stayed sentence for this defendant. A stayed sentence is basically a delayed or postponed sentence - but only as it relates to whether or not the defendant will be sent to state prison. Other terms of the sentence, such as a fine, restitution, treatment, and time served in the county jail, are not typically stayed.

There are two types of stayed sentences: a stay of imposition of sentence and a stay of execution of sentence. The two sound similar but their legal effects involve big differences.

With a stay of imposition, the 28 month sentence is not initially imposed. In fact, the 28 months will never be imposed if the defendant successfully completes probation. At that time, the conviction will be treated as if it had been a misdemeanor, rather than a felony. As a felony conviction makes it harder for a person to find a job and obtain housing or credit, there is a real incentive to be successful on probation.

With a stay of execution, the 28 months in prison is imposed; it is the carrying-out (or execution) of the sentence that is stayed. In all other respects the same probationary sentence is ordered. However, even if successful on probation, the conviction remains as a felony on his record. A stay of execution is typically used for individuals with worse backgrounds.

A defendant with a criminal history score of 3 would presumptively be sent to prison for from 29 to 39 months. Presumptive prison sentences describe a range of time referred to as the top, middle, or bottom “of the box.” The middle of the box is typically ordered but a judge can sentence anywhere from the top to the bottom of the box. The middle of the box for our case is 33 months. Sentences increase as a defendant’s criminal history score increases.

In the next column I’ll explain when a judge is allowed to sentence someone outside of the box. This deviation from the presumed sentence is known as a sentencing departure.

Greg Galler is a District Court Judge chambered in Washington County. These columns provide general legal information and do not constitute legal advice. If you have a general question about the law or courts for Judge Galler, send your question to editor@woodburybulletin.com.

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