If you plead guilty to an offense in Minnesota that triggers a presumptive commit to prison, then your attorney may request a dispositional departure. A motion for a mitigated dispositional departure asks the sentencing judge to not send you to prison. If the judge grants the motion, the court may place you on probation and you could still be exposed to a local jail sentence of one year or less. This means you are not completely out of the woods with potential punishment, but at least you will not be confined in a state prison facility.

To obtain a dispositional departure, your defense attorney must make a motion for one. The motion is usually accompanied by a memorandum of law with reasons why the motion should be granted. Dispositional departures require a judge to find “offender”-related factors about why someone should not go to prison. These factors must include substantial and compelling circumstances. Which can include amenability to treatment or probation – the so-called Trog factors. This includes considering the defendant’s age, prior record, remorse, cooperation, attitude in court, and support of family and friends. The more of these things a defendant has going in their favor, the better chance of getting a departure. Especially if it is a drug or alcohol-related case and the defendant has done, or is doing, treatment. Any mental health or chemical dependency treatment documentation can also be submitted before the sentencing hearing. Showing a person is amenable to treatment can go a long way in trying to get a sentencing departure.

Additionally, a pre-sentence investigation (PSI) will be completed in most cases prior to sentencing. This is a report that probation types up recommending what a sentence should be and the terms of probation. The judge will read this report ahead of sentencing and consider what the recommendations are in it.

Further, a defendant can obtain sentencing support letters from friends, family, and others in the community. These documents can be submitted to the court before the sentencing hearing, so that the court and prosecutor can read them ahead of time. A showing of strong support can aid a defendant in showing they are amenable to probation, because all those people can help keep the person on track.

Notably, before sentencing your lawyer can obtain statistics from the Minnesota Sentencing Guidelines Commission (MSGC) on departure rates. This can include how many times in the state, and your county, a judge has departed on a specific type of case. It can also consider the person’s criminal history score. For those seeking a durational departure and a dispositional departure, the MSGC can generate stats on both.

The district court judge has broad discretion to determine whether a departure is warranted.   According to Minnesota’s sentencing guidelines, certain felony offenses fall into the presumptive prison sentence box. Knowing where you fall and what your options are can be relieve a lot of anxiety. For an initial consultation at no charge, please contact Ambrose Law Firm, PLLC. You can call or text us at 612-547-3199 or email: ambroselegal@icloud.com.



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