In Minnesota, there are two types of departures for defendants to request at sentencing. We previously reviewed what a dispositional departure is here, which asks a judge to not send a defendant to prison. The other departure your defense attorney may request is called a durational departure. This is a request to the court asking for a sentence outside of the Minnesota’s sentencing guidelines. Generally, the defense lawyer is asking for a gross misdemeanor sentence instead of a felony in a durational departure. Sometimes the request is for simply less prison time on a felony sentence.

Felony convictions can have tremendous impact on a person’s livelihood. They can be glaring red flags on background checks for employment and housing. Felonies can take away your civil rights, including your right to vote. A felony will either send you to prison or put a potential prison sentence over your head for the duration of probation. To avoid a felony conviction, when you do not want to take your case to a trial, and want to accept responsibility for what happened, you can motion the court for a durational departure to a gross misdemeanor sentence. Gross misdemeanors have a maximum punishment of one year in jail and will not subject you to prison time or the stains of a felony conviction on your record.

In some cases, the prosecutor will agree to a durational departure to a gross misdemeanor. When a prosecutor agrees to that disposition, it has a good chance of judicial approval. If the prosecutor does not agree to a gross misdemeanor durational departure, then your defense attorney can make a motion for one. It is generally accompanied by a memorandum of law laying out the reasons why the judge should grant the motion.

While a dispositional departure is based on factors pertaining to the defendant, a durational departure primarily deals with factors relating to the offense. Specifically, was the offense less onerous than the typical offense the defendant plead guilty to. For example, some fleeing a peace officer in a motor vehicle cases are much more serious than others. Some, involve lengthy police chases, wrecks, injuries, and substantial damage to property. Other fleeing a police officer in a car cases involve no damage, injuries, or lengthy police chases. Some people stop their vehicle after a much shorter period than others but are still considered a fleeing case. These cases can be good candidates for a durational departure, because they are less serious than the average fleeing case.

Another way, much less used, avenue to try to get a durational departure is if the defendant showed remorse and restraint in committing the offense. The Minnesota Supreme Court reasoned that remorse can be a singular factor supporting a mitigated durational departure if the “demonstrated remorse is directly related to the criminal conduct at issue and that made the conduct significantly less serious that than the typical conduct underlying the offense of conviction” in State v. Solberg. Not an easy factor to prove, but it is possible and worth the argument in certain cases.

Your sentencing judge has broad discretion to determine whether a durational departure is appropriate. If you are trying to minimize the consequences of your felony case, then a departure motion may be something to strongly consider. For an initial consultation at no charge, please contact our Minneapolis Criminal Defense Attorneys at Ambrose Law Firm, PLLC. You can call or text us at 612-547-3199 or email:


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