Stay of imposition or execution of sentence
M.S.A.
609.135

Description: Restorative Justice as part of conditional sentencing under (2)(b). M.S.A. § 609.135 Minnesota Statutes Annotated Currentness Crimes, Criminals (Ch. 609-624) Chapter 609. Criminal Code (Refs & Annos) Sentences (Refs & Annos) 609.135. Stay of imposition or execution of sentence Subdivision 1. Terms and conditions. (a) Except when a sentence of life imprisonment is required by law, or when a mandatory minimum sentence is required by section 609.11, any court may stay imposition or execution of sentence and: (1) may order intermediate sanctions without placing the defendant on probation; or (2) may place the defendant on probation with or without supervision and on the terms the court prescribes, including intermediate sanctions when practicable. The court may order the supervision to be under the probation officer of the court, or, if there is none and the conviction is for a felony or gross misdemeanor, by the commissioner of corrections, or in any case by some other suitable and consenting person. Unless the court directs otherwise, state parole and probation agents and probation officers may impose community work service or probation violation sanctions, consistent with section 243.05, subdivision 1; sections 244.196 to 244.199; or 401.02, subdivision 5. No intermediate sanction may be ordered performed at a location that fails to observe applicable requirements or standards of chapter 181A or 182, or any rule promulgated under them. (b) For purposes of this subdivision, subdivision 6, and section 609.14, the term “intermediate sanctions” includes but is not limited to incarceration in a local jail or workhouse, home detention, electronic monitoring, intensive probation, sentencing to service, reporting to a day reporting center, chemical dependency or mental health treatment or counseling, restitution, fines, day-fines, community work service, work service in a restorative justice program, work in lieu of or to work off fines and, with the victim's consent, work in lieu of or to work off restitution. (c) A court may not stay the revocation of the driver's license of a person convicted of violating the provisions of section 169A.20. Subd. 1a. Failure to pay restitution or fine. If the court orders payment of restitution or a fine as a condition of probation and if the defendant fails to pay the restitution or a fine in accordance with the payment schedule or structure established by the court or the probation officer, the prosecutor or the defendant's probation officer may, on the prosecutor's or the officer's own motion or at the request of the victim, ask the court to hold a hearing to determine whether or not the conditions of probation should be changed or probation should be revoked. The defendant's probation officer shall ask for the hearing if the restitution or fine ordered has not been paid prior to 60 days before the term of probation expires. The court shall schedule and hold this hearing and take appropriate action, including action under subdivision 2, paragraph (g), before the defendant's term of probation expires. Subd. 1b. Repealed by Laws 1987, c. 384, art. 1, § 52. Subd. 1c. Failure to complete court-ordered treatment. If the court orders a defendant to undergo treatment as a condition of probation and if the defendant fails to successfully complete treatment at least 60 days before the term of probation expires, the prosecutor or the defendant's probation officer may ask the court to hold a hearing to determine whether the conditions of probation should be changed or probation should be revoked. The court shall schedule and hold this hearing and take appropriate action, including action under subdivision 2, paragraph (h), before the defendant's term of probation expires. Subd. 2. Stay of sentence maximum periods. (a) If the conviction is for a felony other than section 609.21, subdivision 1a, paragraph (b), or (c), the stay shall be for not more than four years or the maximum period for which the sentence of imprisonment might have been imposed, whichever is longer. (b) If the conviction is for a gross misdemeanor violation of section 169A.20 or 609.21, subdivision 1a, paragraph (d), or for a felony described in section 609.21, subdivision 1a, paragraph (b), or (c), the stay shall be for not more than six years. The court shall provide for unsupervised probation for the last year of the stay unless the court finds that the defendant needs supervised probation for all or part of the last year. (c) If the conviction is for a gross misdemeanor not specified in paragraph (b), the stay shall be for not more than two years. (d) If the conviction is for any misdemeanor under section 169A.20; 609.746, subdivision 1; 609.79; or 617.23; or for a misdemeanor under section 609.2242 or 609.224, subdivision 1, in which the victim of the crime was a family or household member as defined in section 518B.01, the stay shall be for not more than two years. The court shall provide for unsupervised probation for the second year of the stay unless the court finds that the defendant needs supervised probation for all or part of the second year. (e) If the conviction is for a misdemeanor not specified in paragraph (d), the stay shall be for not more than one year. (f) The defendant shall be discharged six months after the term of the stay expires, unless the stay has been revoked or extended under paragraph (g), or the defendant has already been discharged. (g) Notwithstanding the maximum periods specified for stays of sentences under paragraphs (a) to (f), a court may extend a defendant's term of probation for up to one year if it finds, at a hearing conducted under subdivision 1a, that: (1) the defendant has not paid court-ordered restitution or a fine in accordance with the payment schedule or structure; and (2) the defendant is likely to not pay the restitution or fine the defendant owes before the term of probation expires. This one-year extension of probation for failure to pay restitution or a fine may be extended by the court for up to one additional year if the court finds, at another hearing conducted under subdivision 1a, that the defendant still has not paid the court-ordered restitution or fine that the defendant owes. (h) Notwithstanding the maximum periods specified for stays of sentences under paragraphs (a) to (f), a court may extend a defendant's term of probation for up to three years if it finds, at a hearing conducted under subdivision 1c, that: (1) the defendant has failed to complete court-ordered treatment successfully; and (2) the defendant is likely not to complete court-ordered treatment before the term of probation expires. Subd. 3. Motor vehicle offense report. The court shall report to the commissioner of public safety any stay of imposition or execution granted in the case of a conviction for an offense in which a motor vehicle, as defined in section 169.011, subdivision 42, is used. Subd. 4. Jail as condition of probation. The court may, as a condition of probation, require the defendant to serve up to one year incarceration in a county jail, a county regional jail, a county workfarm, county workhouse or other local correctional facility, or require the defendant to pay a fine, or both. The court may allow the defendant the work release privileges of section 631.425 during the period of incarceration. Subd. 5. Assaulting spouse stay conditions. If a person is convicted of assaulting a spouse or other person with whom the person resides, and the court stays imposition or execution of sentence and places the defendant on probation, the court must condition the stay upon the defendant's participation in counseling or other appropriate programs selected by the court. Subd. 5a. Domestic abuse victims; electronic monitoring. (a) Until the commissioner of corrections has adopted standards governing electronic monitoring devices used to protect victims of domestic abuse, the court, as a condition of a stay of imposition or execution of a sentence, may not order an offender convicted of a crime described in paragraph (b) to use an electronic monitoring device to protect a victim's safety. (b) This subdivision applies to the following crimes, if committed by the defendant against a family or household member as defined in section 518B.01, subdivision 2: (1) violations of orders for protection issued under chapter 518B; (2) assault in the first, second, third, or fifth degree under section 609.221, 609.222, 609.223, or 609.224; or domestic assault under section 609.2242; (3) criminal damage to property under section 609.595; (4) disorderly conduct under section 609.72; (5) harassing telephone calls under section 609.79; (6) burglary under section 609.582; (7) trespass under section 609.605; (8) criminal sexual conduct in the first, second, third, fourth, or fifth degree under section 609.342, 609.343, 609.344, 609.345, or 609.3451; and (9) terroristic threats under section 609.713. (c) Notwithstanding paragraph (a), the judges in the Tenth Judicial District may order, as a condition of a stay of imposition or execution of a sentence, a defendant convicted of a crime described in paragraph (b), to use an electronic monitoring device to protect the victim's safety. The judges shall make data on the use of electronic monitoring devices to protect a victim's safety in the Tenth Judicial District available to the commissioner of corrections to evaluate and to aid in development of standards for the use of devices to protect victims of domestic abuse. Subd. 6. Preference for intermediate sanctions. A court staying imposition or execution of a sentence that does not include a term of incarceration as a condition of the stay shall order other intermediate sanctions where practicable. Subd. 7. Demand of execution of sentence. An offender may not demand execution of sentence in lieu of a stay of imposition or execution of sentence if the offender will serve less than nine months at the state institution. This subdivision does not apply to an offender who will be serving the sentence consecutively or concurrently with a previously imposed executed felony sentence. Subd. 8. Fine and surcharge collection. (a) A defendant's obligation to pay court- ordered fines, surcharges, court costs, restitution, and fees shall survive for a period of six years from the date of the expiration of the defendant's stayed sentence for the offense for which the fines, surcharges, court costs, restitution, and fees were imposed, or six years from the imposition or due date of the fines, surcharges, court costs, restitution, and fees, whichever is later. Nothing in this subdivision extends the period of a defendant's stay of sentence imposition or execution. (b) The six-year period relating to a defendant's obligation to pay restitution under paragraph (a) does not limit the victim's right to collect restitution through other means such as a civil judgment. CREDIT(S) Laws 1963, c. 753. Amended by Laws 1971, c. 244, § 2, eff. May 11, 1971; Laws 1976, c. 341, § 3; Laws 1977, c. 349, § 1; Laws 1977, c. 355, § 6, eff. Aug. 1, 1977; Laws 1978, c. 723, art. 2, § 4, eff. April 6, 1978; Laws 1978, c. 724, § 1; Laws 1981, c. 9, § 2, eff. March 26, 1981; Laws 1981, c. 227, § 8, eff. May 20, 1981; Laws 1983, c. 264, § 9, eff. June 7, 1983; Laws 1984, c. 610, §§ 3, 4; Laws 1985, c. 242, § 4; Laws 1986, c. 372, § 5, eff. Aug. 1, 1986; Laws 1986, c. 435, §§ 7 to 9; Laws 1986, c. 444; Laws 1986, c. 463, § 3; Laws 1987, c. 220, § 1, eff. Aug. 1, 1987; Laws 1989, c. 21, § 3; Laws 1989, c. 253, § 1; Laws 1990, c. 579, §§ 3, 4; Laws 1991, c. 272, § 6; Laws 1991, c. 279, §§ 27, 28; Laws 1992, c. 570, art. 1, § 25; Laws 1992, c. 571, art. 1, § 10; Laws 1992, c. 571, art. 6, §§ 11, 12; Laws 1993, c. 326, art. 10, §§ 12, 13; Laws 1993, c. 326, art. 13, § 24; Laws 1994, c. 615, § 24; Laws 1995, c. 226, art. 2, § 11; Laws 1995, c. 259, art. 3, §§ 9, 10; Laws 1996, c. 408, art. 7, § 4, eff. Aug. 1, 1996; Laws 1997, c. 239, art. 3, § 7; Laws 1997, c. 239, art. 5, §§ 8, 9; Laws 1997, 1st Sp., c. 2, § 62; Laws 1998, c. 367, art. 7, § 10; Laws 1999, c. 194, § 9; Laws 2000, c. 478, art. 2, § 7; Laws 2003, 1st Sp., c. 2, art. 6, § 5; Laws 2003, 1st Sp., c. 2, art. 9, § 18; Laws 2007, c. 54, art. 3, § 14, par. (a), eff. Aug. 1, 2007; Laws 2007, c. 54, art. 5, § 17, eff. July 1, 2007. RULES OF CRIMINAL PROCEDURE

ADVISORY COMMITTEE COMMENT [1963] 2009 Main Volume This will supersede Minn.St. §§ 610.37, 610.38, and 636.02. Indefinite suspension of sentence referred to in Minn.St. § 610.38 has not been provided for. Instead, Subd. 2 fixes the limits for which the stay may be imposed. In felony cases this is for the maximum period for which sentence might have been imposed. In misdemeanor cases it was deemed desirable to extend this to a maximum of one year and in the case of gross misdemeanors to two years in order to permit a substantial period of supervision while on probation. Justices of the peace have a limited power to suspend sentence under Minn.St. § 633.18. COMMENT BY MAYNARD E. PIRSIG [1963] 2009 Main Volume See my Comment under § 609.13, with respect to the application of § 609.135 to cases coming within the Youth Conservation Act, Minn.St. Chap. 242. HISTORICAL AND STATUTORY NOTES 2009 Main Volume Derivation: St.1961, §§ 610.37, 610.38, 636.02. Laws 1959, c. 263, §§ 8, 9. Laws 1955, c. 261, § 1. Laws 1947, c. 243, § 1. Laws 1945, c. 260, § 1. Laws 1935, cc. 167, 324. Laws 1933, cc. 133, 135. St.1927, §§ 9936, 9937, 10912. Gen.St.1923, §§ 9936, 9937, 10912. Gen.St.1913, §§ 8496, 8497, 9388. Laws 1909, c. 391, §§ 1, 2. Rev.Laws 1905, § 5499. Laws 1903, c. 270, § 4. Laws 1901, c. 102, § 1. Laws 1889, c. 154, § 4. The 1971 amendment added subd. 3. The 1976 amendment inserted “imposition or” before “execution” at the beginning of subd. 3. Laws 1977, c. 349, inserted in the exception at the beginning of subd. 1, the alternative relating to conviction under § 609.11, subd. 1 and possession of firearm or use of another dangerous weapon [see amendment note for Laws 1981, c. 227, post]. Laws 1977, c. 355, added “including restitution when practicable” at the end of the first sentence of subd. 1 [see 1984 amendment note, post]. Laws 1978, c. 723, added subd. 4. Laws 1978, c. 724, added subd. 5. Laws 1981, c. 9, added the last paragraph to subd. 1. Laws 1981, c. 9, § 3, provides: “This act is effective the day following its final enactment and applies to offenses committed after that date.” Laws 1981, c. 227, in the first sentence of subd. 1, deleted reference to justices of the peace and substituted “mandatory minimum term of imprisonment is required by section 609.11,” for “person is convicted of one of the crimes specified under section 609.11, subdivision 1, and had in his possession a firearm or used another dangerous weapon”. Laws 1981, c. 227, § 14, provided that the act was applicable to all offenses committed on or after May 20, 1981. The 1983 amendment inserted “or gross misdemeanor” in second sentence of first paragraph of subd. 1. The 1984 amendment in the first paragraph of subd. 1, in the first sentence, inserted cl. (a), designated cl. (b) as such, and substituted “noninstitutional sanctions” for “restitution” preceding “when practicable”, and added the last sentence defining “noninstitutional sanctions”; and added subd. 6. Laws 1984, c. 610, § 7, provided that this amendment applied to sentences imposed or stayed on or after Aug. 1, 1984. The 1985 amendment in subd. 1, inserted the next to last sentence in the first paragraph. Laws 1986, c. 372, § 5 added subd. 1a, which is identical to subd. 1b as added by Laws 1986, c. 463. Laws 1986, c. 372, § 8 provides that this amendment is effective August 1, 1986, applicable to causes of action arising on or after that date. Laws 1986, c. 435, §§ 7 to 9, in subd. 1, included fines in the definition of “noninstitutional sanctions”; in subd. 2, inserted in cl. (1) the alternative of three years regarding the stay for a felony conviction and added at the end “whichever is longer”; and in subd. 4, inserted “or require the defendant to pay a fine, or both”. Laws 1986, c. 444, authorized the removal of nonsubstantive gender specific references. Laws 1986, c. 463, § 3, inserted subd. 1b, which is identical to subd. 1a as added by Laws 1986, c. 372. The 1987 amendment, in subd. 2(3), distinguished a misdemeanor conviction under § 169.121 for driving while under the influence from other misdemeanor convictions. Laws 1987, c. 220, § 2 provided that the 1987 amendment was effective August 1, 1987, and applied to crimes committed on or after that date. Laws 1987, c. 384, art. 1, § 52, part of a revisor's correction bill correcting erroneous, ambiguous, omitted and obsolete references and text repealed Laws 1986, c. 463, § 3, adding subd. 1b, which related to a failure to pay restitution and was identical to subd. 1a, as added by Laws 1986, c. 372, § 5. Laws 1989, c. 21, § 3, rewrote subd. 1a. Laws 1989, c. 253, added subd. 7. The 1990 amendment, in subd. 1, substituted “intermediate sanctions” for “noninstitutional sanctions” throughout the subdivision and included within the definition of “intermediate sanctions” incarceration in a local jail or workhouse, home detention, electronic monitoring, intensive probation, sentencing to service, reporting to a day reporting center, chemical dependency or mental health treatment or counseling, and day- fines; and, in subd. 6, substituted “other intermediate sanctions” for “noninstitutional sanctions”. Laws 1991, c. 272, § 6, in subd. 2 in cl. (3) substituted “any misdemeanor under section 169.121 or for a misdemeanor under section 609.224, subdivision 1, in which the victim of the crime was a family or household member as defined in section 518B.01” for “a misdemeanor under section 169.121”. Laws 1991, c. 272, § 21 provides in part that § 6 (amending subd. 2 of this section) is effective August 1, 1991, and applies to crimes committed on or after that date. Laws 1991, c. 279, §§ 27 and 28, near the end of subd. 1a, inserted the reference to action under subd. 2, par. (f); and rewrote subd. 2. Laws 1991, c. 279, § 42, provides in part that §§ 27 and 28 [amending subd. 1a and subd. 2, respectively] are effective August 1, 1991, and apply to convictions occurring on or after that date. Laws 1992, c. 570, art. 1, § 25 in subd. 2 inserted par. (b) relating to gross misdemeanor convictions under section 169.121 or 169.129, redesignated former par. (b) as par. (c) and therein inserted the reference to par. (b), and redesignated former pars. (c) to (f) as pars. (d) to (g) and therein corrected internal citations. Laws 1992, c. 570, art. 1, § 32, provides in part that § 25 is effective January 1, 1993, and applies to crimes committed on or after that date, and that courts may consider prior convictions and license revocations in sentencing repeat offenders and forfeiting vehicles under Laws 1992, c. 570, art. 1. Laws 1992, c. 571, art. 1, § 10, in subd. 2 in par. (c) inserted references to § 609.746, subd. 1, § 609.79, and § 617.23. Laws 1992, c. 571, art. 1, § 29, provides in part that § 10 is effective August 1, 1992, and applies to crimes committed on or after that date. Laws 1992, c. 571, art. 6, §§ 11, 12, in subd. 5 substituted “must” for “may”; and added subd. 5a relating to electronic monitoring devices. Laws 1992, c. 571, art. 6, § 27, provides in part that § 11 is effective August 1, 1992, and applies to crimes committed on or after that date. Laws 1993, c. 326, art. 10, §§ 12 and 13, in subd. 1a inserted the alternative references to a fine and to the prosecutor throughout; and in subd. 2 in par. (f) substituted “six months after the term of” for “when”, and in par. (g) inserted the alternative references to a fine throughout. Laws 1993, c. 326, art. 10, § 19, provides in part that §§ 12 and 13 (amending subds. 1a and 2) are effective August 1, 1993, and apply to all defendants placed on probation on or after that date. Laws 1993, c. 326, art. 13, § 24, in subd. 1 substituted “mandatory minimum sentence” for “mandatory minimum term of imprisonment”. Laws 1993, c. 326, art. 13, § 37, provides in part that § 24 (amending subd. 1) is effective August 1, 1993, and applies to crimes committed on or after that date. The 1994 amendment, in subd. 2, in pars. (a) and (b) substituted “four years” for “three years”. Laws 1994, c. 615, § 29, provides in part that § 24 (amending subd. 2) is effective August 1, 1994 and applies to crimes committed on or after that date. Laws 1995, c. 226, art. 2, § 11, added subd. 8, relating to the time limit for collecting fines, surcharges, court costs, and fees. Laws 1995, c. 226, art 2. § 38, provides in part that § 11 (adding subd. 8) is effective July 1, 1995, and applies to crimes committed on or after that date. Laws 1995, c. 259, art. 3, §§ 9 and 10, in subd. 2, par. (d), inserted a reference to section 609.2242; and in subd. 5a, par. (b), cl. (2), added “or domestic assault under section 609.2242;”. Laws 1995, c. 259, art. 3, § 27, provides in part that §§ 9 and 10 (amending subds. 2 and 5a) are effective August 1, 1995, and apply to prosecutions commenced on or after that date. The 1996 amendment, in subd. 1, inserted a provision providing that “intermediate sanctions” also includes work in lieu of or to work off restitution, if the victim consents. Laws 1997, c. 239, art. 3, § 7, in subd. 1, designated existing text as pars. (a), (b) and (c), within par. (a), designated former cls. (a) and (b) as cls. (1) and (2), and within par. (b), included work service in a restorative justice program within the definition of “immediate sanctions”. Laws 1997, c. 239, art. 3, § 26, provides in part that § 7 (amending this section) is effective August 1, 1997, and applies to crimes committed on or after that date. Laws 1997, c. 239, art. 5, §§ 8 and 9, added subd. 1c, relating to the failure to complete court-ordered treatment; and in subd. 2, in par. (f), inserted the reference to par. (h), and added par. (h), relating to the court extending a defendant's term of probation for up to three years. Laws 1997, c. 239, art. 5, § 13, provides in part that §§ 8 and 9 (adding subd. 1c and amending subd. 2, respectively) are effective August 1, 1997, and apply to crimes committed on or after that date. Laws 1997, 1st Sp., c. 2, § 62, in subd. 2, added par. (b), relating to if the conviction is for an enhanced gross misdemeanor, redesignated former pars. (b) to (h) as pars. (c) to (i) and made conforming cross reference changes throughout the section. Laws 1997, 1st Sp., c. 2, § 70, provides in part that § 62 (amending subd. 2) is effective January 1, 1998, and applies to violations occurring on or after that date. However, violations occurring before January 1, 1998, which are listed in § 169.121, subd. 3, par. (a), are considered prior impaired driving convictions or prior license revocations for purposes of: determining conditional release, long-term monitoring, criminal penalties, sentencing, and administrative licensing sanctions for a person charged for or convicted of a violation occurring on or after January 1, 1998. Laws 1998, c. 367, art. 7, § 10, in subd. 1, par. (a), cl. (2), authorized agents and officers to impose community work service. Laws 1998, c. 367, art. 7, § 16, provides: “Sections 1 to 3 and 7 to 15 are effective August 1, 1998, and apply to acts occurring on or after that date.” Laws 1999, c. 194, § 9, in subd. 2, deleted par. (b), which related to enhanced gross misdemeanor convictions, and redesignated pars. (c) to (i) as pars. (b) to (h). Laws 1999, c. 194, § 12, provides in part that § 9, amending subd. 2, is effective May 25, 1999, and applies to crimes committed on or after May 25, 1999, but that violations occurring before May 25, 1999, which are listed in § 169.121, subd. 3, par. (a), are considered prior impaired driving convictions or prior license revocations for purposes of Laws 1999, c. 194. Laws 2000, c. 478, art. 2, § 7, in part directed the revisor of statutes to conform citations in statutory text to reflect the repeal of parts of chapter 169 and the enactment of chapter 169A. Laws 2000, c. 478, art. 2, § 9, par. (b), provides in part that § 7, instructing the revisor of statutes to conform citations in statutory text to reflect the repeal of part of chapter 169 and the enactment of chapter 169A, is effective January 1, 2001, for crimes committed and conduct occurring on or after that date, and that violations occurring before January 1, 2001, which are listed in § 169A.03, subds. 20 and 21, are considered qualified prior impaired driving incidents for all purposes under this act. 2009 Electronic Update Laws 2003, 1st Sp., c. 2, art. 6, § 5, in subd. 1, par. (a), cl. (2), substituted “probation officers may impose community work service or probation violation sanctions, consistent with section 243.05, subdivision 1; sections 244.196 to 244.199; or 401.02, subdivision 5” for “probation officers may impose community work service for an offender's probation violation, consistent with section 243.05, subdivision 1; 244.19, subdivision 3a; or 401.02, subdivision 5”. Laws 2003, 1st Sp., c. 2, art. 6, § 8, provided in part that § 5 (amending subd. 1) was effective August 1, 2003, and applied to technical violations of probation that occurred on or after that date. Laws 2003, 1st Sp., c. 2, art. 9, § 18, in subd. 2, in par. (a), inserted “other than section 609.21, subdivision 2, 2a, or 4” following “for a felony”, and in par. (b), inserted “or 609.21, subdivision 2b, or for a felony described in section 609.21, subdivision 2, 2a, or 4” following “violation of section 169A.20”. Laws 2003, 1st Sp., c. 2, art. 9, § 18, amending subd. 2, also provided that the amendment was effective August 1, 2003, and applied to violations committed on or after that date. Laws 2007, c. 54, art. 3, § 14, par. (a), provided: “In Minnesota Statutes, sections 171.3215, subdivision 2a; and 609.135, subdivision 2, the revisor of statutes shall change the references in column A to the references in column B. “Column A Column B “609.21, subdivision 1 609.21, subdivision 1a, paragraph (a) “609.21, subdivision 2 609.21, subdivision 1a, paragraph (b) “609.21, subdivision 2a 609.21, subdivision 1a, paragraph (c) “609.21, subdivision 2b 609.21, subdivision 1a, paragraph (d) “609.21, subdivision 4 609.21, subdivision 1a, paragraph (b)” Laws 2007, c. 54, art. 5, § 17, in subd. 8, designated the existing text as par. (a), inserted “restitution,” in three places, and added par. (b), relating to collection of restitution. CROSS REFERENCES Adult corrections commissioner, powers, see § 243.05. Appointment of state agents, see § 243.05. Arrest, see § 629.30 et seq. Bail, see § 629.72. Child labor, see § 181A.01 et seq. Community corrections centers, see §§ 241.31, 241.32. Domestic Abuse Act, sentencing for gross misdemeanor and felony convictions, see § 518B.01. Occupational safety and health, see § 182.65 et seq. Order of commissioner of corrections to retake person on probation on parole, see § 243.05. Registration of predatory offenders, see § 243.166. Restitution, see §§ 611A.04, 611A.64. Restoration of civil rights, possession of firearms, see § 242.31. Stay of sentence, see Rules Crim.Proc., 27.03. LAW REVIEW AND JOURNAL COMMENTARIES Consecutive sentences, suspension of unserved portion. 39 Minn.L.Rev. 451 (1955). Defense perspectives on the Minnesota sentencing guidelines. William E. Falvey. 1982 Hamline L.Rev. 257. Determinate sentencing. Judge Allen L. Oleisky. 32 Bench & B.Minn. 24 (Feb.1976). Plea negotiations, How to settle a criminal case (or the mechanics of a negotiated plea). George M. Scott, March 1968, 36 Hennepin Law. 122. Plea bargaining in Hennepin County. William J. Keppel. January--February 1978, 47 Hennepin Law. 8. Plea negotiating under the sentencing guidelines. Stephen C. Rathke. 1982 Hamline L.Rev. 271. Presentence reports: An analysis of uses, limitations and civil liberties issues. Daniel Katkin. 1970, 55 Minn.L.Rev. 15. Reining In Collateral Consequences by Restoring the Effect of Judicial Discretion in Sentencing. Kelly Lyn Mitchell, 27 Hamline J.Pub.L. & Pol'y 1 (2005). Right to counsel. Yale Kamisar and Jesse H. Choper, 48 Minn.L.Rev. 1 (1963). Sentencing reform in Minnesota, ten years after: Reflection on Dale G. Parent's Structuring Criminal Sentences: The Evolution of Minnesota's Sentencing Guidelines. Richard S. Frase, 75 Minn.L.Rev. 727 (1991). LIBRARY REFERENCES Sentencing and Punishment 475 to 480, 1805, 1810. Westlaw Topic No. 350H. C.J.S. Criminal Law §§ 1525, 1547 to 1550, 1552, 1555, 1688. RESEARCH REFERENCES 2009 Electronic Update ALR Library 15 ALR 5th 391, Measure and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute. Treatises and Practice Aids 6 Minnesota Practice Series § 40.8, Juvenile Traffic Offender; Juvenile Water Law Offender. 8 Minnesota Practice Series § 11.18, Grounds for Dismissal of a Complaint. 9 Minnesota Practice Series § 36.2, Level of Conviction Determined by Sentence or Stay. 9 Minnesota Practice Series § 36.3, The Varieties of Possible Dispositions. 9 Minnesota Practice Series § 42.9, Detention. 9 Minnesota Practice Series § 36.12, Restitution. 9 Minnesota Practice Series § 36.29, Stayed and Executed Sentences. 9 Minnesota Practice Series § 36.30, Departures. 9 Minnesota Practice Series § 36.34, The Nature and Purposes of Probation. 9 Minnesota Practice Series § 36.35, Conditions of Probation. 9 Minnesota Practice Series § 36.36, Length of Probation. 9 Minnesota Practice Series § 36.37, Extension of Probation. 9 Minnesota Practice Series § 36.38, Defendant's Right to Execute Sentence; Refusal of Probation. 9 Minnesota Practice Series § 36.46, Time of the Hearing. 9 Minnesota Practice Series § 36.47, The Revocation Hearing. 9 Minnesota Practice Series § 36.52, Loss of Jurisdiction. 31 Minnesota Practice Series § 19:7, Permissive Consecutive Sentences--Minn. Stat. 169A. 28 Subd. 2. 31 Minnesota Practice Series § 19:9, Stay of Execution of Sentence--Minn. Stat. 169a.283. 31 Minnesota Practice Series § 24:2, Mechanics of the Sentence. 9A Minnesota Practice Series § 56.9, Separate Course of Conduct. UNITED STATES CODE ANNOTATED 2009 Main Volume Probation, see 18 U.S.C.A. § 3561 et seq. UNITED STATES SUPREME COURT Bankruptcy, dischargeability of restitution obligations imposed as conditions of probation, see Pennsylvania Dept. of Public Welfare v. Davenport, U.S.Pa.1990, 110 S.Ct. 2126, 495 U.S. 552, 109 L.Ed.2d 588. Restitution calculation, losses caused by offense of conviction, see Hughey v. U.S., U.S.Tex.1990, 110 S.Ct. 1979, 495 U.S. 411, 109 L.Ed.2d 408, on remand 907 F.2d 39. NOTES OF DECISIONS Conditions of probation 10-15 Conditions of probation - In general 10 Conditions of probation - Failure to fulfill 12 Conditions of probation - Incarceration 14 Conditions of probation - Instructions 15 Conditions of probation - Intermediate sanctions 11 Conditions of probation - Limits on travel 13 Construction with other law 2 Costs of probation 17 Delayed probation 18 Delegation of sentencing authority 3 Demand to execute sentence 4 Extension of probation 16 Failure to fulfill, conditions of probation 12 Incarceration, conditions of probation 14 Instructions, conditions of probation 15 Intermediate sanctions, conditions of probation 11 Length of stay 5 Limits on travel, conditions of probation 13 Mandatory life sentence 9 Reports of stayed sentences 8 Resentencing 21 Restitution 19 Revocation of probation 23 Revocation of stay 22 Stay without probation or sanction 6 Unauthorized stay 7 Validity 1 Work in lieu of fines 20 1. Validity Because rule of criminal procedure requiring district court to place defendant on probation before it imposes intermediate sanctions for probation violation conflicts with section of statute permitting district court to impose intermediate sanctions without placing defendant on probation, section of statute was without force or effect when imposing intermediate sanction for probation violation; statutory provision was procedural. State v. Cottew, App.2007, 728 N.W.2d 268, review granted, affirmed in part, reversed in part 746 N.W.2d 632. Sentencing And Punishment 2032 Imposition of probation condition prohibiting defendants convicted of trespass from coming within 500-foot distance of premises on which they conducted protest did not unconstitutionally infringe on defendants' First Amendment rights; restriction was reasonably related to prior offense and tailored to deter future protests at same location, and 500-foot prohibition was reasonable, enforceable and not so great as to prevent all protest activity in area. State v. Friberg, App.1988, 421 N.W.2d 376, review granted, affirmed 435 N.W.2d 509. Sentencing And Punishment 1971(2); Constitutional Law 2104 2. Construction with other law Disposition of misdemeanor charge in which sentencing judge chose to stay imposition of sentence entirely for one year under procedure authorized by state law was “prior sentence” for purposes of determining defendant's prior criminal history under Sentencing Guidelines. U.S. v. Johnson, C.A.8 (Minn.)1995, 43 F.3d 1211. Sentencing And Punishment 790 Defendant was “under a criminal justice sentence,” under either a Minnesota law or under United States Sentencing Guideline, when he committed robbery so as to justify increase in defendant's criminal history category calculation, where defendant's probation on prior charge had been revoked by Minnesota court and there was outstanding bench warrant for his arrest when he committed robbery. U.S. v. Renfrew, C.A.8 (Minn.)1992, 957 F.2d 525. Sentencing And Punishment 783 Statute providing that an offender with a prior controlled-substance conviction “shall be committed” for imprisonment for not less than six months does not make imprisonment mandatory, and thus, the statute does not limit judicial discretion to stay imposition of sentence and to fashion conditions of probation to include or eliminate a period of actual incarceration. State v. Bluhm, App.2003, 663 N.W.2d 24, review granted, reversed 676 N.W.2d 649. Sentencing And Punishment 1848 Statutory provision preconditioning stays in “significant relationship” cases of first- degree criminal sexual conduct is exception to general rule permitting stays and is not meant to prevent stays for first-degree criminal sexual conduct convictions that are not “significant relationship” convictions. State v. Dokken, App.1992, 487 N.W.2d 914, review denied. Sentencing And Punishment 1862 3. Delegation of sentencing authority By ordering, as a condition of probation, that defendant obtain a chemical-health assessment and follow its recommendations, the district court properly delegated, as administrative implementation, the authority to determine whether chemical-health treatment was needed by defendant and, if so, the type or level of treatment needed. State v. Bradley, App.2008, 756 N.W.2d 129. Constitutional Law 2570; Sentencing And Punishment 1977(2) Allowing a chemical-health assessor to determine a probationer's need for treatment and the type or level of treatment needed, if any, delegates only administrative implementation of a probation condition imposed by the court. State v. Bradley, App.2008, 756 N.W.2d 129. Constitutional Law 2570 District court did not improperly delegate its sentencing authority when it required, as a condition of probation, that defendant complete a chemical-health assessment and follow its recommendations; when the district court ordered defendant to undergo a chemical-health assessment and follow all recommendations of the assessment once treatment was recommended, defendant's participation in that treatment was mandated by the court's order, and district court simply delegated to the chemical-health assessor the expert determination as to whether defendant needed treatment and, if so, the type or level of appropriate treatment. State v. Bradley, App.2008, 756 N.W.2d 129. Constitutional Law 2570; Sentencing And Punishment 1977(2) 4. Demand to execute sentence Defendant had right to refuse probation and demand execution of sentence imposed for criminal vehicular operation resulting in death, where cumulative effect of probationary conditions imposed on defendant, including not driving for ten years, created a more onerous sentence than the executed prison sentence prescribed by Sentencing Guidelines, even though the period of incarceration was less, but trial court would first be allowed to consider modifying the conditions of probation to make them less onerous than the prison sentence. State v. Rasinski, 1991, 472 N.W.2d 645. Sentencing And Punishment 1821 Defendant who would have served less than nine months on execution of sentence did not have right to demand execution of sentence; defendant was sentenced to one year and one day in state institution, less time served, which reduced sentence to approximately eight months and one week. State v. Samarzia, App.1990, 452 N.W.2d 727, review denied. Sentencing And Punishment 1821 This section which negated right to demand execution of sentence if offender would serve less than nine months at state institution applied to all sentencing which occurred after this section became effective, even if offense on which sentencing was based occurred before that effective date. State v. Samarzia, App.1990, 452 N.W.2d 727, review denied. Sentencing And Punishment 1828 Defendant who was convicted on guilty pleas to charges of theft and burglary, with stayed 13-month theft sentence to run concurrently with stayed 15-month burglary sentence, and who was further ordered to serve one year as condition of probation, did not waive his right to execution of sentence after he had served 11 months on probation condition; although plea offer stated that defendant's probable sentences would be stayed, they did not refer to probation or indicate that he could insist on execution of sentence, and written conditions of probation that defendant was required to acknowledge did not indicate that he had an option to refuse probation. State v. McElderry, App.1988, 422 N.W.2d 23. Sentencing And Punishment 1821 Defendant had right to refuse probation and have probationary sentences imposed and executed where trial court stayed imposition of sentences on some charges to which defendant pleaded guilty and placed defendant on probation and ordered executed sentence on final count. State v. Martin, App.1986, 387 N.W.2d 476. Sentencing And Punishment 1821 Defendant was entitled to have his probationary sentence executed and served concurrent with sentence on additional crimes, where defendant was going to be imprisoned locally for one year on additional misdemeanor and gross misdemeanor convictions, whereas probation, if sentence were not executed, would continue for another 20 years. State v. Anderson, App.1985, 378 N.W.2d 632. Sentencing And Punishment 1129 Where defendant was placed on probation conditioned on payment of restitution for three burglaries and was sentenced to prison for fourth burglary, defendant was entitled to execution of the three stayed probationary sentences, although court could order restitution in addition to executing sentences. State v. Stanger, App.1985, 370 N.W.2d 484. Sentencing And Punishment 1940 Defendant did not waive right to demand execution of his stayed sentence, notwithstanding fact that he initially chose alternative of probation with workhouse time, and had served part of workhouse term at time of demand. State v. Sutherlin, App.1983, 341 N.W.2d 303. Sentencing And Punishment 1821 Defendant has right to demand execution of sentence where terms of probation are more onerous than executed sentence. State v. Sutherlin, App.1983, 341 N.W.2d 303. Sentencing And Punishment 1821 Where if 14-month prison sentence was executed and defendant earned maximum good time credit, she would be released after 9.32 months, but under probationary approach she would have to serve a year in county jail unless released to treatment program after six months and, if she violated probation at any time during three years, she still faced 14-month prison sentence with no credit for time spent on probation, trial court would be given opportunity to reduce probationary jail time imposed on defendant, but if defendant still refused probation, execution of original prison sentence should be ordered. State v. Randolph, 1982, 316 N.W.2d 508. Criminal Law 1181.5(8) 5. Length of stay There was no departure in staying execution of presumptive 21-month sentence for kidnapping for 20 years; maximum penalty for kidnapping was imprisonment for not more than 20 years, stay of execution for offense could be for maximum period for which sentence of imprisonment could be imposed, and although guidelines provided presumptive durations for prison terms, there were no presumptive durations for probationary periods. State v. Coleman, App.2007, 731 N.W.2d 531, review denied. Sentencing And Punishment 479 Consecutive stayed sentences of two years each for general contractor convicted of nonpayment for improvements in two separate criminal complaints did not violate subd. 2(2) of this section providing that execution of sentence for gross misdemeanor conviction cannot be stayed for more than two years. State v. Aleshire, App.1990, 451 N.W.2d 66, review denied. Sentencing And Punishment 475; Sentencing And Punishment 594 Trial court has no authority to continue stay of misdemeanor sentence for a period longer than that which has been fixed for particular misdemeanor offense. State, City of Eagan v. Stofferahn, App.1989, 434 N.W.2d 501. Sentencing And Punishment 1946 Trial court did not lose jurisdiction over defendant to order execution of sentence as result of defendant's appeal; thus, defendant's jail sentence could not be executed where stay granted by trial court had expired. Muecke v. State, App.1984, 348 N.W.2d 808. Criminal Law 1083 Where presumptive sentence for first offense was one year and one day stayed, and for second was 18 months stayed, with sentences to run concurrently, trial court, disclaiming any intention to depart from presumptive sentence, erred in staying execution of sentences for five years and, as conditions of probation, ordering defendant to serve six months in jail for first offense and 12 months for second, the second jail term to run consecutively to the first. State v. Wilwert, 1982, 317 N.W.2d 346. Sentencing And Punishment 1976(2) Stay of execution of sentence should be for full period of sentence. Op.Atty.Gen., 341-K- 9, Sept. 24, 1948. 6. Stay without probation or sanction Under Minnesota law, plain language of statute allowing stay of imposition or execution of sentence, through use of term “may,” allows but does not require sentencing court to impose term of probation along with staying imposition of sentence. U.S. v. Johnson, C.A.8 (Minn.)1995, 43 F.3d 1211. Sentencing And Punishment 480 Under Minnesota law, when sentencing court merely stays imposition of sentence without ordering accompanying term of any kind, resultant sentence is necessarily more lenient than disposition in which term of probation is ordered to accompany stay of imposition of sentence. U.S. v. Johnson, C.A.8 (Minn.)1995, 43 F.3d 1211. Sentencing And Punishment 1805 Straight stay of imposition of sentence without accompanying term of probation of any kind, as is permissible under Minnesota law, is not “term of probation” for purposes of Sentencing Guidelines and may not be used in determining defendant's prior criminal history. U.S. v. Johnson, C.A.8 (Minn.)1995, 43 F.3d 1211. Sentencing And Punishment 789; Sentencing And Punishment 790 Under Minnesota law, stay of imposition of sentence may be imposed either with or without term of probation. U.S. v. Johnson, C.A.8 (Minn.)1995, 43 F.3d 1211. Sentencing And Punishment 1810 Under Minnesota law, stay of imposition of sentence with attendant term of either supervised or unsupervised probation is more exacting penalty than like sentence without term of probation, due to additional probationary restrictions on latter sentence. U.S. v. Johnson, C.A.8 (Minn.)1995, 43 F.3d 1211. Sentencing And Punishment 475 Upward dispositional departure executing presumptive stayed sentence under Minnesota Sentencing Guidelines, based on judicially found fact that defendant was unamenable to probation, violated defendant's Sixth Amendment right to a jury trial. State v. Allen, 2005, 706 N.W.2d 40, certiorari denied 126 S.Ct. 1884, 547 U.S. 1106, 164 L.Ed.2d 583. Jury 34(7) 7. Unauthorized stay Valid sentence is not affected by unauthorized order granting stay of execution and probation made at term subsequent to imposition of such sentence but sentence remains in effect and would require immediate execution. State v. Mertz, 1964, 269 Minn. 312, 130 N.W.2d 631, certiorari denied 85 S.Ct. 911, 380 U.S. 918, 13 L.Ed.2d 803. Sentencing And Punishment 1930 8. Reports of stayed sentences Conviction of a traffic offense must be recorded in the court records and a report made to the commissioner of highways even though imposition of sentence was stayed and probation granted under this section. Op.Atty.Gen., 341-K-9, May 16, 1969. 9. Mandatory life sentence Trial court did not possess discretion to disregard statutorily imposed mandatory life sentence for defendant's conviction of first-degree murder of a peace officer. State v. Chambers, 1999, 589 N.W.2d 466. Homicide 1572; Sentencing And Punishment 124 10. Conditions of probation--In general Conditions of probation are peculiarly within the province of the district court. State v. Bluhm, App.2003, 663 N.W.2d 24, review granted, reversed 676 N.W.2d 649. Sentencing And Punishment 1960 Although probationers, by virtue of their convictions, are subject to greater restrictions of their constitutional rights than are ordinary citizens, a district court's discretion in establishing probation conditions is reviewed carefully when a condition restricts fundamental rights. State v. Franklin, 2000, 604 N.W.2d 79. Sentencing And Punishment 1963; Criminal Law 1156.6 Probation conditions must be recited with sufficient particularity to provide an adequate basis for review, especially when the condition imposed is a geographical restriction that may infringe on fundamental rights. State v. Franklin, 2000, 604 N.W.2d 79. Sentencing And Punishment 1918; Sentencing And Punishment 1967(2) Court was not authorized to compel county to fund sex offender treatment imposed as condition of probation for defendant convicted of criminal sexual conduct. State v. Morrow, App.1992, 492 N.W.2d 539. Counties 139 Prospect of confinement is a compelling deterrent in sufficient number of instances to justify continuation of practice of conditioning probation upon probationer's abstaining from intoxicants for term of his sentence. Upchurch v. State, 1971, 289 Minn. 520, 184 N.W.2d 607. Sentencing And Punishment 1980(2) 11. ---- Intermediate sanctions, conditions of probation Chemical-dependency treatment is an “intermediate sanction” within meaning of statute providing that any court may stay imposition or execution of sentence and may order intermediate sanctions without placing the defendant on probation and “intermediate sanctions” include, but are not limited to, incarceration in a local jail or workhouse, home detention, or electronic monitoring. State v. Bradley, App.2008, 756 N.W.2d 129. Sentencing And Punishment 1977(1) Trial court was not required to impose probation for duration of jail sentence imposed as intermediate sanction for probation violation. State v. Cottew, 2008, 746 N.W.2d 632. Sentencing And Punishment 2032 District court was required to place defendant on probation when it imposed intermediate sanctions for probation violation after original probation term had expired; intermediate sanctions imposed after original probation term expired had to be accompanied by extension of probation. State v. Cottew, App.2007, 728 N.W.2d 268, review granted, affirmed in part, reversed in part 746 N.W.2d 632. Sentencing And Punishment 2032 Intermediate sanctions, including confinement, are an alternative to an unwarranted probation revocation. State v. Cottew, App.2007, 728 N.W.2d 268, review granted, affirmed in part, reversed in part 746 N.W.2d 632. Sentencing And Punishment 2032 Decision to impose any sanction for probation violation, intermediate or otherwise, must be the product of the district court's judgment and sound discretion and not its will. State v. Cottew, App.2007, 728 N.W.2d 268, review granted, affirmed in part, reversed in part 746 N.W.2d 632. Sentencing And Punishment 2001 Court may designate agent to seek information regarding proper amount of restitution, but may not delegate its authority to impose restitution; restitution is intermediate sanction. State v. Maidi, 1995, 537 N.W.2d 280. Constitutional Law 2570 Special supervision program of probation, requiring frequent contacts with probation officer and permission to engage in various activities, was an “intermediate sanction” which could only be imposed by judge or court; authority to impose program could not be delegated to corrections department. State v. Henderson, 1995, 527 N.W.2d 827. Sentencing And Punishment 1969(2); Constitutional Law 2572 12. ---- Failure to fulfill, conditions of probation Revocation of defendant's probation for failure to complete condition of inpatient sex offender treatment, which was result of defendant's inability, and county's refusal, to pay for treatment, was not arbitrary or fundamentally unfair and did not violate due process or federal equal protection rights of defendant, where no alternative measures but imprisonment existed to satisfy state's penological interest. State v. Morrow, App.1992, 492 N.W.2d 539. Constitutional Law 4733(1); Sentencing And Punishment 2003 Trial court did not abuse its discretion in revoking probation of defendant convicted of criminal sexual conduct when he failed to fulfill condition of probation, completion of inpatient sex offender treatment program, even though treatment was unavailable or impracticable due to defendant's inability, and county's refusal, to pay for program. State v. Morrow, App.1992, 492 N.W.2d 539. Sentencing And Punishment 2003 Where defendant has not willfully refused to pay, or failed to make sufficient bona fide efforts to obtain funds necessary to pay, for treatment which was condition of probation, court must consider whether alternative measures other than imprisonment are available to satisfy state's penological interest. State v. Morrow, App.1992, 492 N.W.2d 539. Sentencing And Punishment 2003 13. ---- Limits on travel, conditions of probation Geographical limitations may be imposed as a probation condition, but the condition must be reasonably related to the purposes of probation. State v. Franklin, 2000, 604 N.W.2d 79. Sentencing And Punishment 1967(2) Probation condition excluding probationer from entire city was not reasonably related to the general purposes of probation, rehabilitation and the preservation of public safety, and thus, was an abuse of discretion; the condition potentially infringed the probationer's fundamental rights, and the trial court only identified an apartment complex very near the city's border as a problem site for the probationer. State v. Franklin, 2000, 604 N.W.2d 79. Sentencing And Punishment 1968(2) Probation conditions must be recited with sufficient particularity to provide an adequate basis for review, especially when the condition imposed is a geographical restriction that may infringe on fundamental rights. State v. Franklin, 2000, 604 N.W.2d 79. Sentencing And Punishment 1918; Sentencing And Punishment 1967(2) Geographical exclusions as conditions of probation are not presumptively invalid. State v. Franklin, 2000, 604 N.W.2d 79. Sentencing And Punishment 1967(2) Condition of probation requiring antiabortion protestors convicted of trespassing on clinic to stay 500 feet away from clinic premises did not unduly restrict their First Amendment rights; condition of probation did not restrict all antiabortion activity nor did it restrict defendants' right to associate with antiabortion groups and it was reasonably directed at keeping peace and deterring future criminal activity. State v. Friberg, 1989, 435 N.W.2d 509. Constitutional Law 2104; Sentencing And Punishment 1971(2) Probation condition which excluded probationer from one and one-half-mile area surrounding “drug house” was lawful; probation condition would allow those residing in neighborhood to exercise right to safe enjoyment of family life in stable, law-abiding neighborhood not plagued by sale of illicit drugs, would assist probationer in avoiding circumstances which led to his arrest and conviction for possession of controlled substance, and further, there was no showing that exclusion limited probationer's association with family or work. State v. Haynes, App.1988, 423 N.W.2d 102. Sentencing And Punishment 1967(2) 14. ---- Incarceration, conditions of probation Maximum probationary jail term which could be imposed upon defendant who received a sentence of two concurrent prison terms of one year and one day, with execution stayed, was eight months. State v. Gilbertson, 1990, 455 N.W.2d 59. Sentencing And Punishment 1945 Trial court did not abuse its discretion by imposing 60-day jail sentence as condition of probation imposed for conviction of criminal sexual conduct in second degree. State v. Cameron, App.1985, 369 N.W.2d 20. Sentencing And Punishment 1976(2) Defendant has no right to insist on any limitation of probationary jail time; rather, such determination is entirely discretionary with trial court. State v. Sutherlin, App.1983, 341 N.W.2d 303. Sentencing And Punishment 1976(2) Defendant has no right to credit for probationary jail time served pursuant to stayed sentence against subsequent revocation and execution of that sentence. State v. Sutherlin, App.1983, 341 N.W.2d 303. Sentencing And Punishment 2041 15. ---- Instructions, conditions of probation Where oral instructions given to probationer were sufficient to warn him of conditions of his probation, failure to provide him with written instructions did not warrant reversal of decision to revoke his probation; however, preferable practice would be for probationer to receive written copy of conditions of his probation and trial court should advise probationers that they can return to court for clarification of such conditions if necessary. State v. Austin, 1980, 295 N.W.2d 246. Sentencing And Punishment 1918 16. Extension of probation On appeal of conviction for use of a minor in a sexual performance and fourth-degree criminal sexual conduct, in which evidence seized during warrantless search of defendant's residence as result of his probationary status was used to convict him, defendant could collaterally attack extension of his probation as being invalid on basis of trial court's failure to advise him of his right to counsel at probation revocation hearing. State v. Kouba, App.2006, 709 N.W.2d 299. Criminal Law 1557(4) 17. Costs of probation Where county in which defendant was convicted had no contractual arrangements with halfway house, circuit court was without inherent authority to compel the county to pay for defendant's rehabilitative treatment at the halfway house during his probation. State v. Osterloh, 1978, 275 N.W.2d 578. Sentencing And Punishment 1971(3) 18. Delayed probation Following conviction for aggravated assault, there was no error in sentencing defendant to five years' delayed probation to commence upon defendant's release from reformatory where he was confined on unrelated conviction. State v. Hague, 1975, 304 Minn. 139, 229 N.W.2d 168. Sentencing And Punishment 1941 19. Restitution Statutes governing instances in which a district court may order restitution provide no authority to a district court to modify previously imposed restitution. State v. Meredyk, App.2008, 754 N.W.2d 596. Sentencing And Punishment 2225 Sentencing court could disregard restitution recommendation of agency which prepared presentence investigation report, in prosecution for interfering with parental or custodial rights; restitution is intermediate sanction. State v. Maidi, 1995, 537 N.W.2d 280. Sentencing And Punishment 2103 It was within sentencing court's discretion to include “counter-abduction” expenses in restitution imposed following defendant's conviction of depriving another of custodial or parental rights; statute provided that sentencing court “may assess any expense incurred in returning the child,” and defendant had taken children to Algeria and refused to allow them to return to United States. State v. Maidi, 1995, 537 N.W.2d 280. Sentencing And Punishment 2154 Finding that expense of second hospital stay of victim was the result of defendant's criminal offense of criminal sexual conduct and attempted murder, so that the expense could be included within restitution award, was within trial court's discretion, though second hospital stay was caused by victim at one point ignoring medical advice. State v. Alt, App.1995, 529 N.W.2d 727, review denied. Sentencing And Punishment 2150 Drug task force expending drug buy money to purchase controlled substance from defendant is not “victim” entitled to restitution for controlled substance offense. State v. Murray, App.1995, 529 N.W.2d 453. Sentencing And Punishment 2122 Court's failure to make specific finding on defendants' ability to pay restitution did not render restitution order invalid where court recognized possible hardship by indicating that court would deal with financial inability of defendants, who were relatively young men in apparent good health and were employed, when that situation arose. State v. Jola, App.1987, 409 N.W.2d 17. Sentencing And Punishment 2195 Restitution order, requiring defendant to pay to taconite company $34,681, the amount requested by taconite company for five of its large metal bushings, was not abuse of discretion in prosecution for receiving stolen property; sales representative for manufacturer of new bushings testified that value of three bottom shell bushings was $9,600 each and that value of inner eccentric bushing was $14,509, evidence established that minimum value of the three bushings was $3,400 each, and scrap value received by taconite company was about $2,720. State v. Larson, App.1986, 393 N.W.2d 238. Sentencing And Punishment 2188(4) Trial court has wide discretion in ordering a reasonable amount of restitution. State v. Larson, App.1986, 393 N.W.2d 238. Sentencing And Punishment 2161 Restitution does not include costs of probationary supervision. State v. Anderson, App.1985, 378 N.W.2d 632. Sentencing And Punishment 1973(1) For purposes of conditioning probation on restitution, the word “restitution” connotes restoring or compensating the victim for his loss; if the legislature intended the term to be used more loosely, as a form of punitive damages, it should have used some other word or made its particular use of the word clearer. State v. Fader, 1984, 358 N.W.2d 42. Sentencing And Punishment 1973(3) Where as part of negotiated guilty plea defendants did not agree to make restitution and their sentences were executed and no probation was involved, the sentences were required to be limited to imprisonment and it was error to require restitution. State v. Raddatz, App.1984, 345 N.W.2d 798. Sentencing And Punishment 2138 Legislature intended restitution to be permissive condition of probation only in those cases where probation was allowed by law. State v. Jonason, 1980, 292 N.W.2d 730. Sentencing And Punishment 1973(2) Inasmuch as probation is expressly not allowed by law for crimes in which a firearm is used, court will not be able to order restitution in those cases. State v. Jonason, 1980, 292 N.W.2d 730. Sentencing And Punishment 2141 20. Work in lieu of fines After defendant was convicted of violating ordinance prohibiting the storage of trash and materials outdoors, court could stay imposition of fine on condition that the defendant remove the trucks from his property. City of Burnsville v. Brastad, App.1984, 354 N.W.2d 85. Municipal Corporations 643 21. Resentencing Statute governing a stay of imposition or execution of sentence did not impose a limit on the cumulative amount of jail time that could be imposed as a consequence of a probation violation, and thus remand to the trial court was required to resentence defendant after a probation violation. State v. Johnson, App.2008, 743 N.W.2d 622. Criminal Law 1181.5(8); Sentencing And Punishment 2032 Trial court could not impose additional penalty on resentencing after defendant requested execution of original sentence and could not impose fine of $5,000 after defendant moved to vacate probationary sentence and to execute original sentence imposing concurrent prison terms of 18 months and one year and one day. State v. Sheppheard, App.1987, 407 N.W.2d 477. Double Jeopardy 115 22. Revocation of stay Although stay of sentence could be revoked without notice before it expired, stay could not be continued or “tolled” to permit revocation after expiration of stay. State, City of Eagan v. Stofferahn, App.1989, 434 N.W.2d 501. Sentencing And Punishment 1947; Sentencing And Punishment 2010 Trial court lacked jurisdiction to revoke stay of execution of gross misdemeanor defendant's jail sentence, despite nonexpiration of provision period, where more than one year had expired since stay had been granted. State v. Shields, App.1988, 423 N.W.2d 744. Sentencing And Punishment 2010 23. Revocation of probation District court was not required to make findings mandated by State v. Austin, setting forth three requirements district court must satisfy before revoking probation and executing a stayed sentence, when imposing jail time and home confinement with electronic monitoring as intermediate sanctions for a probation violation; court imposed intermediate sanctions rather than revoking defendant's probation and executing her sentence. State v. Cottew, App.2007, 728 N.W.2d 268, review granted, affirmed in part, reversed in part 746 N.W.2d 632. Sentencing And Punishment 2029 A district court must satisfy the following three requirements before revoking probation and executing a stayed sentence: (1) designate the specific probation condition that the probationer has violated; (2) find that the violation is inexcusable or intentional; and (3) find that the need for confinement outweighs the policies favoring probation. State v. Cottew, App.2007, 728 N.W.2d 268, review granted, affirmed in part, reversed in part 746 N.W.2d 632. Sentencing And Punishment 2029 Extension of defendant's probation following hearing he received one day before his probation was set to expire was invalid, as trial court failed to advise defendant of his right to counsel; hearing constituted probation revocation hearing, as its purpose was to address defendant's failure to complete sex-offender treatment, a condition of his probation, and, while defendant was not afforded niceties of receiving written notice of his probation violation and other procedural formalities required by law, the consequences to him were the same as if he had received proper notice of a violation, proceeded to hearing, and received punishment, and, thus, defendant should have been offered right to consult with an attorney before appearing at hearing. State v. Kouba, App.2006, 709 N.W.2d 299. Sentencing And Punishment 2013; Sentencing And Punishment 2014 Trial court did not “classify” defendant, as would implicate equal protection, when it revoked his probation on ground of defendant's inability, and county's refusal, to pay for inpatient sex offender treatment. State v. Morrow, App.1992, 492 N.W.2d 539. Constitutional Law 3819; Sentencing And Punishment 2003 Trial court's revocation of defendant's probation for failure to complete condition of inpatient sex offender treatment, which was result of defendant's inability, and county's refusal, to pay for treatment, did not violate state equal protection guarantee; defendant was not accorded different treatment on basis of race, alienage or membership in distinct minority and state had rational basis for distinguishing between defendant and person who could have paid for sex offender treatment. State v. Morrow, App.1992, 492 N.W.2d 539. Constitutional Law 3819; Sentencing And Punishment 2003; Constitutional Law 3174 When conducting review under due process clause of revocation of indigent defendant's probation, court must consider whether and when it is fundamentally unfair or arbitrary for state to revoke probation when indigent is unable to financially satisfy condition of probation. State v. Morrow, App.1992, 492 N.W.2d 539. Constitutional Law 4733(1) Sentencing court has broad discretion in determining whether sufficient evidence exists to revoke probation. State v. Morrow, App.1992, 492 N.W.2d 539. Sentencing And Punishment 2021 Revocation of probation may be based on nonintentional violation of condition. State v. Morrow, App.1992, 492 N.W.2d 539. Sentencing And Punishment 2003 Absent clear abuse of discretion, Court of Appeals will not reverse sentencing court's decision to revoke probation. State v. Morrow, App.1992, 492 N.W.2d 539. Criminal Law 1156.7 M. S. A. § 609.135, MN ST § 609.135 Current with laws of the 2009 Regular Session, Chapters 1 through 58 (C) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. END OF DOCUMENT

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