From MN Bench Book - Trial Procedures & Practices for Judges
A high percentage of all criminal cases are resolved without a trial. Because of this fact, it is essential that prosecutors and defense attorneys be aware of all the possible dispositional alternatives. The term “Dispositional Alternatives” is used because in many cases, the case is resolved without the entry of plea guilty or it there is a plea without a sentence.
The prosecutor’s duty is to see that justice is done and that a given criminal case is resolved in a way that protects the public, is fair to the defendant and is approximately consistent with disposition practices in the prosecutor’s office. The defense attorney's role in arguing for and obtaining an appropriate sentence or disposition is one of the major duties he or she can perform for a client. It is a difficult role for defense attorneys for they must consider:
- Their client's desire to avoid any criminal liability for the criminal charge,
- Their client’s desire to resolve the charges pending against them without coming under the sentencing jurisdiction of the court;
- Their client’s desire to obtain a minimal sentence
- Their client's need for treatment or rehabilitation; and lastly,
- The prosecutor's desire and attempt to obtain a greater sentence.
Defense attorneys should be vigorous advocates for their clients in all stages of the criminal process but especially in sentencing of dispositions. They should actively participate in the process at all where sentencing or a disposition is determined, this involves:
- Negotiating dispositions or sentence recommendations with the prosecutor; and
- Requesting and arguing for a pre-sentence investigation order from the judge; and
- Evaluating, discussing, and correcting the pre-sentence report from a probation officer; and
- Determining and arguing for an appropriate sentence from the judge.
In order to do all of these effectively, the defense attorney must be able to assess the client's strengths, weaknesses, and needs and the defense attorney must be aware of all of the sentencing or dispositional alternatives available in the community and criminal justice system.
The following is an outline of dispositional alternatives. The range of dispositions is from immediate dismissal to a finding or plea of guilty and the imposition and execution of the maximum incarceration sentence and the maximum fine. The dispositional alternatives are divided in two categories, the first where the court has no sentencing jurisdiction and the second where it has.
- 1 Disposition Consequences To Be Concerned About
- 2 A. Dispositions Where Judge Has No Sentencing Jurisdiction
- 3 B. SENTENCING JURISDICTION PLEA OF GUILTY
- 3.1 SENTENCING RANGE WHEN THE COURT HAS SENTENCING JURISDICTION
- 3.2 SENTENCING LIMITATIONS PURSUANT TO MINNESOTA STATUTE § 609.035
- 3.3 Sentencing Flexibility Pursuant to Minn. Stat. § 609.135
- 3.4 Imposition and Execution of Sentence
- 3.5 Length of Probation
- 3.6 Community Work Service and Restitution
- 3.7 Stay of Adjudication
- 3.8 Diversion Programs
- 3.9 Mandatory Minimum Fine
- 3.10 Surcharge on Conviction
- 3.11 Probation and Probation Fees, Minnesota Statute 609.135
- 3.12 Conditions of Probation
- 3.13 Notice of Conditions
- 3.14 Revocation of Probation
- 3.15 Examples of Dispositions
Disposition Consequences To Be Concerned About
- Does court have “sentencing” jurisdiction?
- Will disposition result in def/client having a permanent or “temporary “criminal record”?
- What happens if defendant does not comply with conditions of “probation” (formal or informal)?
- Can disposition be used for enhancement purposes?
- Can disposition be used for criminal history point?
- What is maximum “sentence” that can be imposed as a result of disposition?
- What type of hearing is defendant entitled to upon violation of conditions of probation (judge; if defendant is on formal probation, jury; if defendant case has been Continued for Dismissal (CWOP), what level of proof necessary)?
- Is defendant. Entitled to expungement order as a matter of right?
A. Dispositions Where Judge Has No Sentencing Jurisdiction
DISMISSAL When a charge or charges are dismissed the court loses all jurisdiction over the defendant to impose any sanctions or conditions. Some prosecutors agree to dismiss a charge or charges upon the payment of prosecution costs. the charge or charges are dismissed when the defendant pays the costs, if done so at the appearance when the dismissal is offered the dismissal is immediate.
CONTINUANCE FOR DISMISSAL(No plea)
In this disposition, the prosecutor agrees to continue the case without a plea for a period of time at the end of which the charges are dismissed. The prosecutor may or may not require that the defendant stipulate to facts constituting the crime or comply with certain conditions during the continuance
Conditions could include: restitution, no contact with victim, counseling or no further similar charges. The prosecutor usually requires the defendant to waive his or her right to the speedy part of the right to go to trial. If, subsequently, the defendant does not comply with the conditions, the defendant returns to court and either goes to trial or enters a plea of guilty. Some prosecutors and/or judges will agree to a dismissal or continuance for dismissal if the defendant pays court costs. This is an indirect way of fining defendants.
CONTINUANCE FOR DISMISSAL WITH STIPULATED FACTS (No plea)
This type of continuance for dismissal involves the prosecutor offering to continue the charge or charges for dismissal if: 1. The defendant waives the right to a jury trial agreeing to a trial to the court if the defendant violates the conditions of the continuance, 2. Stipulates to the facts in the charging documents, 3. Gives up the right to call witnesses or testify him or herself, 4. Agrees that the judge can determine guilt or innocence based on the charging documents
Continuance for dismissal are negotiated between the defense attorney and the prosecutor. The major factors which often are the basis for this type of disposition are:
- The state has a weak evidentiary case against the defendant;
- A victim or essential witness has indicated a reluctance or unwillingness to testify;
- The victim and the defendant are closely related or know each other;
- This is the defendant's first criminal charge and the charge is not serious (low value of theft item, Disorderly Conduct, no injury assault).
B. SENTENCING JURISDICTION PLEA OF GUILTY
The judge may decide on a sentence immediately after a plea or finding of guilty. In many cases, the judge will order a pre-sentence investigation by a probation officer prior to his or her decision as to sentencing. In many negotiated plea situations, the judge will also order a pre-sentence investigation to help him or her decide whether to accept or reject the sentencing recommendation. Pre-sentence investigations are required by statute in Domestic Assault, violations of orders for protection, violation of an harassment order and DWI cases.
If you, as a defense attorney, believe your client would benefit from a pre-sentence investigation prior to the imposition of a sentence, you should request that one be done. Rule 27, M. R. Cr. P., sets forth some general procedures that govern sentencing. The factors that affect the determination of a sentence include:
- Nature of the conviction (assault v. disorderly conduct);
- Degree of aggravation of the offense (was this a one blow, no visible injury assault, or repeated striking inflicting visible injuries requiring medical attention);
- Mitigating factors explaining defendant's behavior (victim insulted defendant using racial or ethnic slur and defendant strikes victim);
- Prior conviction record of defendant;
- Personal characteristics of defendant (defendant is stable, has job, family, long time in community);
- Treatment needs and desires of defendant (criminal behavior precipitated because of chemical dependency or emotional problems and defendant desires treatment);
- Economic situation of defendant (defendant stole food because he or she had no money to purchase it);
- Defendant's attitude toward criminal behavior (defendant acknowledges responsibility for actions);
- Victim's attitudes toward defendant (forgiven, wants restitution, wants punishment);
- Type of judge with sentencing authority.
SENTENCING RANGE WHEN THE COURT HAS SENTENCING JURISDICTION
The maximum sentence for a misdemeanor is ninety (90) days incarceration and a one thousand ($1,000) dollar fine. Minn. Stat. § 609.03(3). The maximum sentence for a gross misdemeanor is one year in jail and or a Three Thousand ($3,000) dollar fine.
SENTENCING LIMITATIONS PURSUANT TO MINNESOTA STATUTE § 609.035
Minn. Stat. § 609.035 states:
Except as provided in [Minn. Stat.] sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, and 609.856, if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
This statute bars serialized prosecution and multiple punishments for a single behavioral incident. The statutory language, "[if] a person's conduct constitutes more than one offense" has been construed to mean single behavioral incident by the Minnesota Supreme Court. The purpose of the statute is to protect against exaggerating the criminality of a person's conduct by making both punishment and prosecution commensurate with culpability.
If convictions merge for sentencing purposes by operation of this statute, a defendant can only receive one maximum misdemeanor sentence for all merging convictions. If convictions do not merge a defendant can receive multiples of the maximum misdemeanor sentence for each such non-merging conviction.
This statute comes into frequent use in the prosecution of the misdemeanors involving single behavioral incidents. Traffic cases very often involve multiple charges such as DWI, careless driving, driving after suspension, and hit and run. In the criminal area, it is very common to have a defendant charged with multiple offenses such as assault and disorderly conduct or assault and obstructing an arrest.
The statute list additional offenses that do not merge for sentencing. Consult the statute when a defendant is charged with more than one offense arising out of the same behavioral incident.
This statute has generated a tremendous number of appellate decisions. It is a complex area, but for misdemeanor offenses, the following general concepts are pertinent:
- If there is only one victim, multiple charges arising out of the same incident will likely merge for sentencing, (for example, boyfriend assaults girlfriend in her apartment, in process disturbs peace of neighbors and damages girlfriend's property, charges assault in the fourth degree, disorderly conduct and criminal damage to property);
- Moving Traffic Violations, Minn. Stat. § 169, and Driver's License Violations, Minn. Stat. 171, arising out of the same driving conduct DO NOT MERGE for sentencing (example, DWI and Driving after Suspension for same driving conduct); However, a person can be sentenced to no more than 1 year for multiple convictions of gross misdemeanors and or misdemeanors arising out of the same behavioral incident. State v. Blooflat, 671 N.W.2d 591 (Minn. Ct. App. 2003)
- Careless or reckless driving charge and specific driving violation charges arising out of same driving conduct do merge for sentencing (example, speeding, going through red light and careless driving);
- In a single behavioral incident involving multiple victims, the defendant can be sentenced for a crime committed against each victim (example, defendant assaults officer A and B during an arrest);
- Defendants may waive (expressed or implied) right against multiple prosecutions, they may not waive right against multiple punishment for offenses which are considered merged for sentencing purposes.
The factors to consider in arguing for or against the merging of charges for sentencing purposes are:
- The unity of time and place of the defendant's behavior;
- The continued or discrete nature of the defendant's behavior;
- Singleness of purpose-were all of defendant's acts constituting potentially different crimes, engaged in to obtain a single criminal objective. (Example, displaying a fictitious driver's license in order to cash a forged check.)
Prosecutors generally take the position that multiple charges do not merge for sentencing while defense attorneys, should always consider and assert the merging concepts of Minn. Stat. § 609.035 in raising defenses, plea bargaining negotiations, and sentencing arguments with the judge.
Sentencing Flexibility Pursuant to Minn. Stat. § 609.135
Minn. Stat. § 609.135 authorizes a judge who acquired the power to sentence through either a plea to or a finding of guilty to:
Stay imposition or execution of sentence and:
- a. order non-institutional sanctions without placing the defendant on probation; OR
- b. place the defendant on probation with or without supervision and on the terms the court prescribes, including non-institutional sanctions when practical.
Imposition and Execution of Sentence
Note the distinction between the imposition of a sentence and the execution of a sentence. The imposition of a sentence is the judge's declaration of what portion of the maximum statutorily authorized sentence for the offense level the defendant is convicted of he or she will use. The execution of a sentence is the actual carrying out or implementation of the sentence imposed on the defendant. For example, the judge declares (imposes) the sentence for a person convicted of a misdemeanor (max sentence 90 days & $1,000 fine) will be 30 days in the workhouse and further states that all but 2 days will be stayed for one year. The judge is in effect executing 2 days of the 30 day imposed sentence.
Length of Probation
See MSA 609.135 for different periods of probation for different offense levels and different offenses
The maximum period of time that a misdemeanor defendant may be on probation for is one year. However for the offense of DWI, Minn. Stat. § 169.121, and 5th degree assault, Minn. Stat. § 609.224, the defendant may be placed on for probation for up to two years. Minn. Stat. § 609.135, subd. 2(d). The maximum period that a gross misdemeanor defendant may be on probation for is two years. If the offense is a gross misdemeanor DWI, the probation period may be four years. If restitution is ordered as a condition of probation, the court may extend a misdemeanor or gross misdemeanor stay of imposition or stay of execution for an additional two years if the restitution remains unpaid.
Community Work Service and Restitution
Pursuant to Minn. Stat. § 609.135, courts with sentencing authority can require a convicted defendant to perform community work service as a condition of the stay of imposition or execution of a jail sentence or a fine. A court can also require a defendant to make restitution to a victim for the victim's economic loss as a condition of probation.
Restitution, Statutory Authorization
Minnesota law gives the victim of a crime the right to receive restitution for loss caused by a convicted criminal offender. Minn. Stat. § 611A.04, subd. 1. Before ordering restitution under this statute, the district court must receive proof of the amount of loss, which the victim can provide by affidavit or by “other competent evidence.” Id. A “factual basis” must be shown for restitution to each victim. State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999). Under the statute, proof of amount must include a description of the items lost, itemized costs, and reasons for the amount if it is “in the form of money or property.” Minn. Stat. § 611A.04, subd. 1. The defendant may then challenge the restitution request by producing an affidavit “setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims.” Minn. Stat. § 611A.045, subd. 3 (2006).
Stay of Adjudication
This disposition is included here because a judge does have underlying sentencing jurisdiction with a stay of adjudication. In most cases it is a negotiated disposition, however it was originally developed by judges who were using their inherent authority to accept a guilty plea when the judge made a determination that the prosecutor was over reaching. Currently it is clear, from the number of Minnesota appellate court decisions in this area, that the appellate courts perceive that stays of adjudication are being used inappropriately by many judges when they utilize this disposition over the objection of the prosecutor.
In a stay of adjudication, a defendant pleads guilty, waiving their trial rights and admitting facts of the offense. The plea is then taken under advisement by judge. At the time of the plea the defendant is not deemed to be convicted of the offense pled to because the judge does not accept the guilty plea. Even though the defendant is not subject to the formal sentencing jurisdiction of court, the judge places the defendant on informal probation and the case is continued with or without conditions for a period of time. At the end of the period of the continuance, if the defendant has complied with the condition imposed by the judge the judge can reject the plea of guilty and dismiss the charge(s). (see also Minn. Stat. § 152.18 for drug users). If the defendant doesn’t comply with the conditions, the defendant returns to court, the judge accepts guilty plea, enters a finding of guilty and sentences defendant. State v. Krotzer, 531 N.W.2d 862 (Minn. Ct. App. 1995) aff’d in part and rev’d in part, 548 N.W.2d 252 (Minn. 1996).
In Hennepin and Ramsey County there are organized programs called De Novo and Project Remand which provide educational and employment counseling for some defendants whose charges are continued for dismissal. They usually accept defendants into their program who are first offenders and are charged with some type of property offense.
They interview defendants at their first court appearance and if the defendant is eligible for their program, they appear with the defendant and request that the charges pending against the defendant be continued for up to twelve (12) months for dismissal if the defendant complies with the conditions recommended by the program. The prosecutor must agree to this continuance.
Defendants who fail to comply or cooperate with the De Novo or Remand Programs are terminated from the program and returned to court where they must enter a plea of guilty or not guilty.
De Novo and Remand have been well accepted by the courts and prosecutors and are excellent resources to use to divert a misdemeanor defendant from the criminal adjudication process. DeNovo charges a fee for its services.
A defendant is entitled to (custody) credit for all time spent in custody following arrest (or charging), including time spent in custody on other unrelated charges arising separate from and subsequent to a charge the defendant is being sentenced on, beginning on the date the prosecution acquires probable cause to charge defendant with the offense for which he or she was arrested. State v. Fritzke, 521 N.W.2d 859, Minn.App.,1994
Sentence to Service (STS)
A defendant may be sentenced to a program called Sentence to Service in lieu of or as an alternative to an actual incarceration in a jail, workhouse or other non-felony custody facility. Sentence to Service is a form of Community Service, but more rigorous. Sentence to Service is based on concepts of restorative justice, giving back something to the community which was harmed by the acts of the defendant. In addition, Sentence to Service reduces the demand for and cost of staffing jail space. It involves a defendant being required to perform on 8-hour day of community service type work in lieu of each day of an executed jail sentence. It usually involves outside work cleaning up roads and parks. While the defendant can select the days of the week he or she will do their Sentence to Service sentence, they cannot select where they will work nor can they work less than an 8-hour shift. There is no fee for a Sentence to Service sentence. Community Service is more flexible than Sentence to Serve. A person sentenced to Community Service is usually sentenced to a number of hours of Community Service in lieu of a custody sentence or a fine. The person sentenced to Community Service can select the place, from a court-approved list, where they will perform their community service. In addition, the person sentenced to Community Service can select the number of hours per day (1, 2, 3, etc.) they do the Community Service. They must perform all of the ordered hours of Community Service but can do so at less than 8 hours a day, unlike Sentence to Service. There is a fee for a Community Service sentence. Payment of this fee is not a condition of probation. The defendant will be sent a bill for their participation in Sentence to Service and if the defendant fails to pay the bill, it will be collected via income recapture thru a deduction from a tax return or the suspension of the defendant’s driver’s license. Sentencing Range Upon Conviction
SENTENCING JURISDICTION AFTER CONVICTION
- 1. Minn. Stat. § 609.135 for vacation of plea and dismissal of the charge. No jail or fine sentence imposed, the defendant is placed on probation for one (misdemeanor) or two (gross misdemeanor) years. Conditions of probation typically include no same or similar charges plus offense specific prohibitions such as stay away from a person or place. At the end of the period of probation, if the defendant has complied with the terms of probation the guilty plea is ordered withdrawn and the charge dismissed. The defendant’s presence is not required for the vacation of plea and dismissal of the charge. In Hennepin County this is referred to as a 609 for dismissal. In Ramsey County this is referred to as a deferred sentence.
- 2 The language of Minn. Stat. § 609.135 does not authorize a judge to order or allow the withdrawal of a guilty plea or finding after the successful completion of probation, nor does it authorize a judge to order that, after such withdrawal of the plea or finding, the charges be dismissed. Clearly, if the prosecutor agrees to such a disposition as well as the defendant, the judge would be empowered to so act.
- Some judges utilize the above procedure over the objection of the prosecutor on the authority of M. R. Cr. P. 15.05 (plea withdrawal) and Minn. Stat. § 631.21 (authorizes judge to dismiss charge in the interest of justice). See also City of St. Paul v. Landreville, 301 Minn. 43, 221 N.W.2d 532 (1974).
- Compare the sentencing procedure in Minn. Stat. § 152.18 which clearly authorizes a judge in drug convictions to order guilty pleas withdrawn and charges dismissed.
- 2. Minn. Stat. § 609.135 For Discharge. Same as #1, No jail or fine sentence imposed, however plea or finding of guilty not withdrawn at end of probation, conviction remains on defendant's record. If defendant pleads guilty of is convicted of a gross misdemeanor offense and is sentenced pursuant to this disposition, on successful completion of probation he or she is deemed to be convicted of a misdemeanor.
- 3. Minn. Stat. § 609.135. Jail or fine sentence imposed but imposed sentence not executed. An example would be, ten (10) days in workhouse imposed; execution of all 10 days stayed one year with or without conditions. This is a stayed sentence in Hennepin County and a suspended sentence in Ramsey County.
- 4. Minn. Stat. § 609.135. Jail sentence imposed but a portion of the imposed days not executed. An example would be, 30 days in workhouse imposed; execution of 20 days stayed one year, with or without conditions. This is a stayed sentence in Hennepin County and a suspended sentence in Ramsey County.
- 5. Custody sentence imposed but suspended (ten days in workhouse suspended). If the sentence is suspended immediately after it has been imposed, it can never be executed. The defendant cannot be required to serve the suspended time or pay the suspended fine. However, the defendant will have a record of conviction.
- 6. Sentence imposed of a fine only of no more than three hundred ($300) dollars, thus making the offense a petty misdemeanor.
- 7. Sentence imposed of a fine of no more than three hundred ($300) dollars or any number of days imposed but not executed, the days to be suspended upon payment of the fine. The judges who do this believe that the result is a petty misdemeanor. It is used so the court has some means of collecting the fine.
- 8. <b.Sentence imposed and executed of a fine only in excess of three hundred ($300) dollars with part of fine suspended, the defendant only pays net fine after deducting suspended portion (example, $500, $200 suspended, defendant pays $300). Arguably, this sentence would not be considered a crime, because no jail sentence was imposed.
- 9. Sentence imposed of a fine only with execution stayed of all or a portion of fine upon defendant complying with conditions.
- 10. Sentence imposed and executed of a fine only of more than two hundred ($200) dollars.
- 11. Sentence imposed and executed of a fine in any amount or if not paid, the defendant is to serve a given period of time in custody (example, $100 or 10 days).
- 12. Sentence imposed of a fine only with defendant being required to do X number of hours of public service work in lieu of paying fine and without incarceration.
- 13. Sentence imposed and executed of X number of days incarceration, parole (released from custody facility) before all days served. Parole conditioned on defendant's compliance with conditions.
- 14. Sentence imposed and executed of X number of days incarceration and payment of fine.
Defendants sentenced to any term of incarceration are entitled to be released from the detention facility they are in for employment purposes. The release is limited to the hours of their employment plus additional time to travel to and from their job. Work release should always be requested by you whenever you represent a defendant who is employed and receives a sentence involving incarceration.
Defendants sentenced to the payment of a fine are entitled to a reasonable period of time to pay the fine. If they are indigent and cannot pay the fine, they cannot be incarcerated for failure to pay the fine. They can be required to perform community work service in lieu of or to work of a fine.
Mandatory Minimum Fine
Minnesota Statute 609.101, subdivision 5 states that when a person is convicted of a misdemeanor or gross misdemeanor the judge shall impose a mandatory minimum fine of 30% of the maximum fine allowed for the offense. If the person is indigent or eligible for the services of the public defender the court shall impose a minimum fine of $50.00. This fine can be satisfied thru sentence to service or by applying any number of days the person spent in custody on this charge.
Surcharge on Conviction
The 2003 Legislature adopted Minn. Stat. § 357.021 which requires a defendant to pay a surcharge on any conviction of $75. Payment may not be waived by the court even if the defendant is indigent. This surcharge is now required for violations of chapter 169 (Traffic Statutes) Cases that recieve a continuance for Dismissal or a stay of adjudication.
Probation and Probation Fees, Minnesota Statute 609.135
The defendant is on probation when imposition of a sentence or execution of all or a portion of an imposed sentence is stayed, on the defendant's compliance with certain conditions. If it is active probation, the defendant may be required to participate in counseling, therapy or chemical dependency treatment. If it is active probation the defendant will have to pay a probation fee of up to $200. If it is inactive probation, the defendant is not required to keep in contact with their probation officer but is required to comply with other conditions. This fee is a civil debt and failure to pay is not deemed to be a violation of conditions of probation. M.S.A. 241.272, 244.18 Restitution, to be monitored by probation, as a condition of probation will also result in a probation fee.
Conditions of Probation
A condition of almost every probation, active or inactive, is that the defendant not be charged with, or convicted of, any offense of the same or similar nature as that to which the defendant pled, or of which he or she was found guilty.
The sentencing judge should clearly state whether he or she is conditioning the stay of imposition or execution on no similar charges or no similar convictions. Some judges use the phrase "no new offenseS" or "remain law abiding." These last two terms may be a problem in that an agrument can be made that the rule of lenity would require that probation can only be revoked after a conviction. Any conditions of probation must be clear enough so that the defendant can "reasonably be able to tell what lawful acts were prohibited." State v. Austin, 295 N.W.2d 246 (Minn. 1980).
Notice of Conditions
When a defendant is placed on probation, he or she should receive a written statement of the conditions of the probation from the court. Not all judges do this in misdemeanor cases. If the defendant is not furnished with a written statement of the condition of his or her probation by the court, it is recommended that the defendant's attorney prepare such a statement in letter form and send it to the defendant with a copy to the court.
Revocation of Probation
When the conditions of probation have allegedly been violated, before the sentencing judge may revoke the probation and impose or execute a sentence, he or she must:
- A. Give the defendant written notice of the alleged grounds for revocation,
- B. Give the defendant an opportunity to have a hearing on the proposed revocation,
- C. At the hearing, the judge must:
- designate the specific condition or conditions that were violated;
- find that the violation occurred and it was intentional and/or inexcusable; and
- find that need for confinement outweighs the policy favoring probation. State v. Austin, supra.
The purpose of probation is rehabilitation, and revocation should be used only as a last resort when treatment has failed. Defense attorneys and judges should be aware of the ABA Standard for Criminal Justice regarding probation which has been adopted by the Minnesota Supreme Court, that standard states:
- 1. Violation of a condition is both necessary and a sufficient ground for the revocation of probation. Revocation followed by imprisonment should not be the disposition, however, unless the court finds on the basis of the original offense and the intervening conduct of the offender that:
- a. Confinement is necessary to protect the public from further criminal activity by the offender; or
- b. The offender is in need of correctional treatment which can most effectively be provided if he is confined; and
It would unduly depreciate the seriousness of the violation if probation were not revoked. State v. Austin, supra.
|Disposition||Guilty Plea||Possibility of Probation||Procedure and Conditions of Probation||Disposition after Successful Completion of Probation|
|Dismissal||No||No||Record of Charge (2)|
|Continued for Dismissal||No||Informal||Return to court for plea of guilty or trial||Charge dismissed (record of charge, but no record of conviction) (2)|
|Continued for Dismissal with Stipulated Facts||No||Informal||Return to court for plea of guilty or trial||Charge dismissed (record of charge, but no record of conviction) (2)|
|Stay of Adjudication (Krotzer)||No||Formal. If conditions of probation are no complied with, defendant is returned to court for adjudication of guilt and sentencing, which can include imposition and execution of sentence.||Return to court for plea of guilty or trial||Judge rejects plea of guilty, charge dismissed (record of charge, no record of conviction)|
|Plead Guilty to Petty Misdemeanor||Yes||Not if sentence of fine only executed||Return to court for hearing on payment of fine (1)||Record of plea and conviction, but not a conviction of a crime (2)|
|609 for Dismissal (H)
Deferred Sentence (R)
(stay of imposition of sentence)
|Yes||Yes||Return to court for hearing on imposition and execution of sentence (1)||Guilty plea withdrawn, charge dismissed (record of charge, no record of conviction) (2)|
|Imposition of Sentence Only
(execution of imposed sentence stayed)
|Yes||Yes||Return to court for hearing on execution of sentence (1)||No longer subject to execution of sentence (record of conviction) (2)|
|Imposition & Execution of Sentence (credit for days served)||Yes||Only if served prior to serving all of the imposed sentence||Return to court for hearing on revocation of parole (1)||Record of conviction (2)|
(1) Parole violations consist of a 2-stage hearing. First, were the terms violated? Second, if yes, she the terms be executed (imposed and executed if 609 on suspended sentence)
(2) Motion for expungement necessary to eliminate record of charge and/or conviction. (H) = Hennepin County, (R) = Ramsey County
Examples of Dispositions
|Dismissal||Defendant is charged with theft, this is his/her first offense, s/he produces the receipt at arraignment||Prosecutor moves to have charge of theft dismissed when case is called|
|Continue for Dismissal||Defendant is charged with theft, this is his/her first offense, item is recovered||Prosecutor moves to have the charge continued for 1 year for dismissal if no new theft charges and payment of $100 in prosecution costs|
|Certify Offense as a Petty Misdemeanor||Defendant is charged with theft as a misdemeanor, this is his/her first offense, the item is recovered||Prosecutor moves to certify offense as a petty misdemeanor if defendant agrees to pay a $100 fine in prosecution costs and agrees and does not object to certification (defendant must approve certification as a petty misdemeanor)|
|Stay of Adjudication||Defendant is charged with theft as a misdemeanor, this is his/her first offense, the item valued at $190 is recovered, defendant is applying for medical school and appl. asks for conviction||Prosecutor refuses to continue for dismissal. Judge tells defendant he will stay adjudication if s/he agrees to plead guilty. Defendant does plead guilty and judge says he will take plea under advisement for 1 year and during that time will stay adjudication if defendant is not charged with a new theft charge and pays $100 in court costs. After 1 year the judge will reject the plea.|
|609 for Dismissal||Defendant is charged with theft as a misdemeanor, this is his/her first offense, the item is recovered||Pursuant to a plea bargain, defendant pleads guilty to theft as a misdemeanor. The Judge's sentence is: 609 for vacation of plea and dismissal and the end of 1 year if no new theft charges and the defendant completes a theft counseling program|
|Imposition of Sentence, Execution of Part of Imposed Sentence Stayed for 1 Year||Defendant is charged with theft as a misdemeanor, this is his/her first offense, the item is recovered. This is defendant's second theft charge.||Defendant pleads guilty to theft. The Judge's sentence is: 30 days (imposed), 25 days stayed (stay of execution), 5 days not stayed (executed) can be served by doing 5 days "sentence to serve"|
|Imposition of Sentence, Execution of Imposed Sentence||Defendant is charged with theft as a misdemeanor, this is his/her first offense, the item is recovered. This is defendant's third theft charge.||Defendant pleads guilty to theft. The Judge's sentence is: 30 days (30 days imposed and no days stayed thus 30 days executed)|
|Types of Dispositions||Guilty Plea||Probation||Status of the Charge at the End of the Court's Jurisdiction|
|Dismissal||No||No||Record of Charge|
|Continuance of Dismissal||No||Informal. If there is a violation then defendant returns to court for plea or trial||Record of Charge|
|Plead Guilty as Petty Misdemeanor||Yes||Yes, only if portion of fine stayed||Record of|
1. Charge and plea
2. Conviction, but not for a crime
|Plead Guilty, Stay of Adjudication||Yes (Tendered but not accepted)||Yes, but informal. If there is a violation of terms of probation then defendant must return to court for adjudication of guilty and sentencing||Record of|
1. Charge and plea (no record of conviction if there is a successful completion of probation)
|Plead Guilty, 609 for Dismissal, Deferred Sentence. Imposition of sentence stayed, vacation of plea, dismissal of charge.||Yes||Yes. If violation of terms of probation then defendant must return to court for sentencing||Record of|
2. Conviction during probation. Not deemed to be convicted after probation discharge.
|Plead Guilty; 609 for Dischrage, Imposition of sentence stayed||Yes||Yes. If violation of terms of probation then defendant must return to court for sentencing||Record of|
|Plead Guilty; Imposition of Sentence, Execution of all imposed sentence stayed||Yes||Yes. If violation of terms of probation then defendant must return to court for possible execution of imposed sentence||Record of|
|Plead Guilty; Imposition of Sentence; Execution of Portion of Imposed Sentence Stayed||Yes||Yes. If violation of terms of probation then defendant must return to court for for possible execution of stayed portion of imposed sentence||Record of|
|Plead Guilty: Imposition and execution of sentence, Execution of all imposed sentence||Yes||No, defendant incarcerated||Record of|