HF 1602

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to sentencing; establishing procedures to
determine if an upward durational departure sentence
is warranted; providing a Blakely hearing to determine
if a departure sentence should be decided at the guilt
phase of a jury by special interrogatory or in a
separate hearing; requiring notice, jury
determinations beyond a reasonable doubt on the
departure issue, and court findings; proposing coding
for new law in Minnesota Statutes, chapter 244.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [244.102] DEPARTURE SENTENCING; BLAKELY
HEARING; NOTICE; COUNTY ATTORNEY UPWARD DEPARTURE CLAIMS.
new text end

new text begin (a) Upon motion of the county attorney to seek an upward
durational departure sentence, the court shall consider
imposition of such upward durational departure sentence in the
manner provided in this section and sections 244.103 and
244.104. The county attorney shall file a motion to seek an
upward durational departure sentence not less than 60 days prior
to the date of trial. The county attorney shall notify the
defendant when seeking an upward durational departure sentence.
new text end

new text begin (b) The notice of an upward durational departure sentence
must contain notice of:
new text end

new text begin (1) each claim the county attorney will make for an upward
departure in sentencing; and
new text end

new text begin (2) the procedure by which the county attorney will seek
the jury's deliberation on the upward departure issue:
new text end

new text begin (i) by a special interrogatory in the guilt phase of the
trial; or
new text end

new text begin (ii) a separate jury trial on sentencing after the
defendant has been convicted.
new text end

Sec. 2.

new text begin [244.103] BLAKELY HEARING; DEFENDANT'S MOTION;
COURT DETERMINATION OF ISSUES.
new text end

new text begin Subdivision 1. new text end

new text begin Blakely hearing. new text end

new text begin The defendant may make a
motion within 15 days for a Blakely hearing when the county
attorney has notified the defendant that the county attorney
intends to seek an upward departure sentence under section
244.102. The defendant, in addition to serving the court with
the motion, must serve the county attorney.
new text end

new text begin Subd. 2. new text end

new text begin Speedy hearing. new text end

new text begin The court shall hear the motion
no later than 30 days before the selection of the jury.
new text end

new text begin Subd. 3. new text end

new text begin Evidentiary, sentencing, and fairness
issues. new text end

new text begin If the defendant has demanded a hearing under
subdivision 1, the court shall hear and:
new text end

new text begin (1) review and determine the county attorney claims for an
upward departure sentence, including the county attorneys'
proposed presentation to the jury;
new text end

new text begin (2) determine whether the upward durational departure
sentencing issue should be decided by a special interrogatory
during the guilt phase of the trial or in a special sentencing
phase after the trial after guilt has been determined; and
new text end

new text begin (3) determine other issues presented by either the
defendant or county attorney relating to evidentiary,
sentencing, or other matters relating to fairness.
new text end

new text begin Subd. 4. new text end

new text begin Court determination. new text end

new text begin The court shall make an
oral or written determination and serve the parties no later
than 15 days before the selection of a jury.
new text end

Sec. 3.

new text begin [244.104] JURY TRIAL UPWARD SENTENCE DEPARTURES.
new text end

new text begin Subdivision 1. new text end

new text begin Trial or separate hearing
determination. new text end

new text begin The court shall determine if the presentation of
any evidence regarding the alleged fact or factors that may
increase the penalty for a crime that qualifies as an upward
departure, other than a prior conviction, shall be presented to
a jury and proved beyond a reasonable doubt during the trial of
the matter by interrogatory or following the determination of
the defendant's guilt or pursuant to sections 244.102, 244.103,
and this section.
new text end

new text begin Subd. 2. new text end

new text begin Trial evidentiary hearing. new text end

new text begin In the upward
durational departure sentence proceeding, evidence may be
presented concerning any matter that the court deems relevant to
the question of determining if any specific factors exist that
may serve to enhance the maximum sentence. Only such evidence
as the state has made known to the defendant prior to the upward
durational departure sentence proceeding shall be admissible,
and no evidence secured in violation of the Constitution of the
United States or of the state of Minnesota shall be admissible.
No testimony by the defendant at the upward durational departure
sentence proceeding shall be admissible against the defendant at
any subsequent criminal proceeding. At the conclusion of the
evidentiary presentation, the court shall allow the parties a
reasonable period of time in which to present oral arguments.
new text end

new text begin Subd. 3. new text end

new text begin Jury instructions. new text end

new text begin The court shall provide oral
and written instructions to the jury to guide its deliberations.
new text end

new text begin Subd. 4. new text end

new text begin Reasonable doubt standard. new text end

new text begin If, by unanimous
vote, the jury finds beyond a reasonable doubt that one or more
specific factors exist that may serve to enhance the maximum
sentence, the defendant may be sentenced, in the court's
discretion, consulting the departure factors set forth in
section II.D. of the sentencing guidelines as advisory
guidelines only. The jury, if its verdict is a unanimous
recommendation that one or more of the specific factors that may
serve to enhance the maximum sentence exists, shall designate in
writing, signed by the foreman of the jury, the specific factor
or factors which the jury found beyond a reasonable doubt. If,
after a reasonable time for deliberation, the jury is unable to
reach a verdict of finding any of the specific factors, the
court shall dismiss the jury and shall only impose a sentence as
provided by law. In nonjury cases, the court shall follow the
requirements of this subsection in determining if one or more of
the specific factors exist that may serve to enhance the maximum
sentence.
new text end