Sentencing: Dispositional Departure vs. Durational Departure
Sometimes at sentencing, where the criminal case did not go to trial and the sentence is up to the judge, a criminal defense attorney will argue for a “dispositional departure” or a “durational departure.” A “dispositional departure” is a departure where a prison sentence is announced but not executed (i.e., the defendant does not serve prison time but is placed on probation). A “durational departure” is a departure where a prison sentence is announced but only part of the prison sentence is executed (i.e., the defendant goes to prison but not for the prison sentence recommended by the Minnesota Sentencing Guidelines). An “aggravated” dispositional or durational departure means the judge imposes a more severe penalty; a “mitigated” dispositional or durational departure means the judge imposes a less severe penalty.
Here are four different scenarios:
Aggravated dispositional departure: Say, for example, you pled guilty to Felony Third Degree Controlled Substance Crime, which has a presumptive prison sentence, according to the Minnesota Sentencing Guidelines, of 21 months stayed (meaning it is assumed that you will not serve the recommended prison sentence, rather jail time and/or probation will be imposed). If the judge imposes 15 months to be served in prison, he has issued an aggravated dispositional departure. Because the judge sentenced you to prison time even though the Minnesota Sentencing Guidelines recommend the prison time be stayed, he imposed an aggravated dispositional departure.
Aggravated durational departure: Say you pled guilty to Felony Third Degree Criminal Sexual Conduct, which has a presumptive Guidelines sentence of 41–57 months commit (meaning it is assumed that you would serve this time in prison). If the judge imposes 75 months to be served in prison, he has issued an aggravated durational departure. Because the judge sentenced you to a longer sentence than the Minnesota Sentencing Guidelines recommended (must be more than 20% longer than the fixed duration in the Guidelines box), he imposed an aggravated dispositional departure.
Mitigated dispositional departure: Say you pled guilty to Felony First Degree Assault, which has a presumptive Minnesota Sentencing Guidelines executed prison sentence of 74–103 months (meaning it is assumed that you will serve this time in prison). If the judge sentences you to 180 days in jail, he will have issued a mitigated dispositional departure. Because the judge sentenced you to jail time rather than prison time, he imposed a mitigated dispositional departure. This is also true if the judge pronounces a prison sentence but “stays” the time and imposes only jail time instead.
Mitigated durational departure: Say you pled guilty to Felony Second Degree Sex Trafficking, which has a presumptive Guidelines sentence of 41–57 months commit (meaning it is assumed that you would serve this time in prison). If the judge sentences you to 15 months in prison, he will have issued a mitigated durational departure. Because the judge sentenced you to less prison time than the Guidelines recommended (must be more than 15% lower than the fixed duration in the Guidelines box), he imposed a mitigated durational departure.