In some cases, the prosecution will file a motion asking the court for an aggravated (upward) sentencing departure. This means the prosecutor is asking the court to sentence you to a more severe prison sentence than what your offense calls for in the Minnesota Sentencing Guidelines. Any departure, mitigated or aggravated, is asking the court to sentence someone outside of what the sentencing guidelines provide.

In aggravated departures, the prosecution must provide reasonable notice to the defendant and court of the factors it intends to rely upon to support an aggravated departure. These factors include, but are not limited to, the alleged victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which should have been known by the defendant. Other factors include if the alleged victim was treated with particular cruelty for which the defendant should be held responsible if the current offense is a criminal sexual conduct case and the alleged victim was injured.

Other aggravating factors include major economic offenses, identified as an illegal act or series of acts by using means of concealment or guile to obtain money or property, to avoid payment or loss of money or property. Two or more of these circumstances present: offense involved multiple victims or multiple incidents per victim; the offense involved an attempted or actual monetary loss substantially greater than the usual offense or substantially greater than the minimum loss; the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; the defendant used their position or status to facilitate the commission of the offense; the defendant had been involved in other similar conduct as evidenced by civil or administrative law proceedings.

Major controlled substance offenses can also be an aggravating factor. If two or more of these factors are present in the controlled substance crime: offense involved at least three separate transactions; attempted sale or transfer of controlled substances was in quantities substantially larger than for personal use; offense involved the manufacture of controlled substances for use by others; offender possessed a firearm; offender had a high position in a drug distribution hierarchy; offense involved a high degree of sophistication or occurred over a lengthy period of time; offender used their position of trust.

Other aggravating factors can include: defendant hired another person to commit the crime; the defendant is a dangerous offender (third violent crime); offender is a career offender; defendant part of a group of three or more people who all actively participated in the offense; offense committed in the presence of a child; offense committed in a location where the alleged victim had an expectation of privacy; among other factors.

If the prosecution is allowed to move forward with an aggravated departure, then the defense has a right to present evidence at a unitary or bifurcated trial on the issue. This part of the trial can also be in front of a judge or jury. Generally, the defense prefers a bifurcated trial, so that if they win, they do not have to go through that endeavor. And, if they lose, then it can be a separate trial focusing solely on aggravating factors.

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