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Minnesota Session Laws - 1997, Regular Session

Key: (1) language to be deleted (2) new language

                              CHAPTER 96-H.F.No. 5 
                  An act relating to crime; clarifying the elements of 
                  the harassment and stalking crime; increasing the 
                  penalties for a violation of a domestic abuse order 
                  for protection and a harassment restraining order; 
                  adding certain violations of the harassment and 
                  stalking law to the list of crimes for which mandatory 
                  minimum prison sentences must be imposed; expanding 
                  the definition of "pattern of harassing conduct"; 
                  clarifying that the application of the sentencing 
                  guidelines system is not a right that a defendant may 
                  waive; limiting a defendant's right to take an appeal 
                  regarding a sentence; requiring a study on the 
                  sentencing guidelines; amending Minnesota Statutes 
                  1996, sections 244.09, subdivision 5; 244.11; 518B.01, 
                  subdivision 14; 609.11, subdivision 9; 609.748, 
                  subdivision 6; and 609.749, subdivisions 1, 2, 5, and 
                  by adding a subdivision. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1996, section 244.09, 
        subdivision 5, is amended to read: 
           Subd. 5.  The commission shall, on or before January 1, 
        1980, promulgate sentencing guidelines for the district court.  
        The guidelines shall be based on reasonable offense and offender 
        characteristics.  The guidelines promulgated by the commission 
        shall be advisory to the district court and shall establish: 
           (1) The circumstances under which imprisonment of an 
        offender is proper; and 
           (2) A presumptive, fixed sentence for offenders for whom 
        imprisonment is proper, based on each appropriate combination of 
        reasonable offense and offender characteristics.  The guidelines 
        may provide for an increase or decrease of up to 15 percent in 
        the presumptive, fixed sentence. 
           The sentencing guidelines promulgated by the commission may 
        also establish appropriate sanctions for offenders for whom 
        imprisonment is not proper.  Any guidelines promulgated by the 
        commission establishing sanctions for offenders for whom 
        imprisonment is not proper shall make specific reference to 
        noninstitutional sanctions, including but not limited to the 
        following:  payment of fines, day fines, restitution, community 
        work orders, work release programs in local facilities, 
        community based residential and nonresidential programs, 
        incarceration in a local correctional facility, and probation 
        and the conditions thereof. 
           Although the sentencing guidelines are advisory to the 
        district court, the court shall follow the procedures of the 
        guidelines when it pronounces sentence in a proceeding to which 
        the guidelines apply by operation of statute.  Sentencing 
        pursuant to the sentencing guidelines is not a right that 
        accrues to a person convicted of a felony; it is a procedure 
        based on state public policy to maintain uniformity, 
        proportionality, rationality, and predictability in sentencing. 
           In establishing and modifying the sentencing guidelines, 
        the primary consideration of the commission shall be public 
        safety.  The commission shall also consider current sentencing 
        and release practices; correctional resources, including but not 
        limited to the capacities of local and state correctional 
        facilities; and the long-term negative impact of the crime on 
        the community. 
           The provisions of sections 14.001 to 14.69 do not apply to 
        the promulgation of the sentencing guidelines, and the 
        sentencing guidelines, including severity levels and criminal 
        history scores, are not subject to review by the legislative 
        commission to review administrative rules.  However, on or 
        before January 1, 1986, the commission shall adopt rules 
        pursuant to sections 14.001 to 14.69 which establish procedures 
        for the promulgation of the sentencing guidelines, including 
        procedures for the promulgation of severity levels and criminal 
        history scores, and these rules shall be subject to review by 
        the legislative commission to review administrative rules. 
           Sec. 2.  Minnesota Statutes 1996, section 244.11, is 
        amended to read: 
           244.11 [APPELLATE REVIEW OF SENTENCE.] 
           Subdivision 1.  [GENERALLY.] An appeal to the court of 
        appeals may be taken by the defendant or the state from any 
        sentence imposed or stayed by the district court according to 
        the rules of criminal procedure for the district court of 
        Minnesota.  Except as otherwise provided in subdivision 3, a 
        dismissal or a resolution of an appeal brought under this 
        section shall not prejudice an appeal brought under any other 
        section or rule. 
           Subd. 2.  [PROCEDURE.] (a) When an appeal taken under this 
        section is filed, the court administrator of the district court 
        shall certify the transcript of the proceedings and any files or 
        records relating to the defendant, the offense, and the sentence 
        imposed or stayed, that the supreme court by rule or order may 
        require. 
           (b) On an appeal pursuant to this section, the court may 
        review the sentence imposed or stayed to determine whether the 
        sentence is inconsistent with statutory requirements, 
        unreasonable, inappropriate, excessive, unjustifiably disparate, 
        or not warranted by the findings of fact issued by the district 
        court.  This review shall be in addition to all other powers of 
        review presently existing.  The court may dismiss or affirm the 
        appeal, vacate or set aside the sentence imposed or stayed and 
        direct entry of an appropriate sentence or order further 
        proceedings to be had as the court may direct.  
           Subd. 3.  [LIMITATION ON DEFENDANT'S RIGHT TO SEEK SENTENCE 
        MODIFICATION.] (a) As used in this subdivision, "appeal" means: 
           (1) an appeal of a sentence under Rule 28 of the Rules of 
        Criminal Procedure; and 
           (2) an appeal from a denial of a sentence modification 
        motion brought under Rule 27.03, subdivision 9, of the Rules of 
        Criminal Procedure. 
           (b) If a defendant agrees to a plea agreement and is given 
        a stayed sentence, which is a dispositional departure from the 
        presumptive sentence under the Minnesota sentencing guidelines, 
        the defendant may appeal the sentence only if the appeal is 
        taken: 
           (1) within 90 days of the date sentence was pronounced; or 
           (2) before the date of any act committed by the defendant 
        resulting in revocation of the stay of sentence; 
        whichever occurs first. 
           (c) A defendant who is subject to paragraph (b) who has 
        failed to appeal as provided in that paragraph may not file a 
        petition for postconviction relief under chapter 590 regarding 
        the sentence. 
           (d) Nothing in this subdivision shall be construed to: 
           (1) alter the time period provided for the state to appeal 
        a sentence under Rule 28 of the Rules of Criminal Procedure; or 
           (2) affect the court's authority to correct errors under 
        Rule 27.03, subdivision 8, of the Rules of Criminal Procedure. 
           Subd. 4.  [RELEASE PENDING APPEAL.] This section shall not 
        be construed to confer or enlarge any right of a defendant to be 
        released pending an appeal. 
           Sec. 3.  Minnesota Statutes 1996, section 518B.01, 
        subdivision 14, is amended to read: 
           Subd. 14.  [VIOLATION OF AN ORDER FOR PROTECTION.] (a) A 
        person who violates an order for protection issued under this 
        section is subject to the penalties provided in paragraphs (b) 
        to (d).  
           (b) Except as otherwise provided in paragraphs (c) and (d), 
        whenever an order for protection is granted pursuant to this 
        section, and the respondent or person to be restrained knows of 
        the order, violation of the order for protection is a 
        misdemeanor.  Upon a misdemeanor conviction under this 
        paragraph, the defendant must be sentenced to a minimum of three 
        days imprisonment and must be ordered to participate in 
        counseling or other appropriate programs selected by the court.  
        If the court stays imposition or execution of the jail sentence 
        and the defendant refuses or fails to comply with the court's 
        treatment order, the court must impose and execute the stayed 
        jail sentence.  A violation of an order for protection shall 
        also constitute contempt of court and be subject to the 
        penalties provided in chapter 588. 
           (c) A person is guilty of a gross misdemeanor who knowingly 
        violates this paragraph subdivision during the time period 
        between a previous conviction under this paragraph subdivision; 
        sections 609.221 to 609.224; 609.2242; 609.713, subdivision 1 or 
        3; 609.748, subdivision 6; 609.749; or a similar law of another 
        state; and the end of the five years following discharge from 
        sentence for that conviction.  Upon a gross misdemeanor 
        conviction under this paragraph, the defendant must be sentenced 
        to a minimum of ten days imprisonment and must be ordered to 
        participate in counseling or other appropriate programs selected 
        by the court.  Notwithstanding section 609.135, the court must 
        impose and execute the minimum sentence provided in this 
        paragraph for gross misdemeanor convictions. 
           (d) A person is guilty of a felony and may be sentenced to 
        imprisonment for not more than five years or to payment of a 
        fine of not more than $10,000, or both, if the person knowingly 
        violates this subdivision: 
           (1) during the time period between the first of two or more 
        previous convictions under this section or sections 609.221 to 
        609.224; 609.2242; 609.713, subdivision 1 or 3; 609.748, 
        subdivision 6; 609.749; or a similar law of another state; and 
        the end of the five years following discharge from sentence for 
        that conviction; or 
           (2) while possessing a dangerous weapon, as defined in 
        section 609.02, subdivision 6. 
        Upon a felony conviction under this paragraph in which the court 
        stays imposition or execution of sentence, the court shall 
        impose at least a 30-day period of incarceration as a condition 
        of probation.  The court also shall order that the defendant 
        participate in counseling or other appropriate programs selected 
        by the court.  Notwithstanding section 609.135, the court must 
        impose and execute the minimum sentence provided in this 
        paragraph for felony convictions. 
           (b) (e) A peace officer shall arrest without a warrant and 
        take into custody a person whom the peace officer has probable 
        cause to believe has violated an order granted pursuant to this 
        section restraining the person or excluding the person from the 
        residence or the petitioner's place of employment, even if the 
        violation of the order did not take place in the presence of the 
        peace officer, if the existence of the order can be verified by 
        the officer.  The person shall be held in custody for at least 
        36 hours, excluding the day of arrest, Sundays, and holidays, 
        unless the person is released earlier by a judge or judicial 
        officer.  A peace officer acting in good faith and exercising 
        due care in making an arrest pursuant to this paragraph is 
        immune from civil liability that might result from the officer's 
        actions. 
           (c) A violation of an order for protection shall also 
        constitute contempt of court and be subject to the penalties 
        therefor.  
           (d) (f) If the court finds that the respondent has violated 
        an order for protection and that there is reason to believe that 
        the respondent will commit a further violation of the provisions 
        of the order restraining the respondent from committing acts of 
        domestic abuse or excluding the respondent from the petitioner's 
        residence, the court may require the respondent to acknowledge 
        an obligation to comply with the order on the record.  The court 
        may require a bond sufficient to deter the respondent from 
        committing further violations of the order for protection, 
        considering the financial resources of the respondent, and not 
        to exceed $10,000.  If the respondent refuses to comply with an 
        order to acknowledge the obligation or post a bond under this 
        paragraph, the court shall commit the respondent to the county 
        jail during the term of the order for protection or until the 
        respondent complies with the order under this paragraph.  The 
        warrant must state the cause of commitment, with the sum and 
        time for which any bond is required.  If an order is issued 
        under this paragraph, the court may order the costs of the 
        contempt action, or any part of them, to be paid by the 
        respondent.  An order under this paragraph is appealable.  
           (e) (g) Upon the filing of an affidavit by the petitioner, 
        any peace officer, or an interested party designated by the 
        court, alleging that the respondent has violated any order for 
        protection granted pursuant to this section, the court may issue 
        an order to the respondent, requiring the respondent to appear 
        and show cause within 14 days why the respondent should not be 
        found in contempt of court and punished therefor.  The hearing 
        may be held by the court in any county in which the petitioner 
        or respondent temporarily or permanently resides at the time of 
        the alleged violation.  The court also shall refer the violation 
        of the order for protection to the appropriate prosecuting 
        authority for possible prosecution under paragraph (a) (b), (c), 
        or (d). 
           (f) (h) If it is alleged that the respondent has violated 
        an order for protection issued under subdivision 6 and the court 
        finds that the order has expired between the time of the alleged 
        violation and the court's hearing on the violation, the court 
        may grant a new order for protection under subdivision 6 based 
        solely on the respondent's alleged violation of the prior order, 
        to be effective until the hearing on the alleged violation of 
        the prior order.  If the court finds that the respondent has 
        violated the prior order, the relief granted in the new order 
        for protection shall be extended for a fixed period, not to 
        exceed one year, except when the court determines a longer fixed 
        period is appropriate. 
           (g) (i) The admittance into petitioner's dwelling of an 
        abusing party excluded from the dwelling under an order for 
        protection is not a violation by the petitioner of the order for 
        protection. 
           A peace officer is not liable under section 609.43, clause 
        (1), for a failure to perform a duty required by 
        paragraph (b) (e). 
           (h) (j) When a person is convicted of violating an order 
        for protection under this section and the court determines that 
        the person used a firearm in any way during commission of the 
        violation, the court may order that the person is prohibited 
        from possessing any type of firearm for any period longer than 
        three years or for the remainder of the person's life.  A person 
        who violates this paragraph is guilty of a gross misdemeanor.  
        At the time of the conviction, the court shall inform the 
        defendant whether and for how long the defendant is prohibited 
        from possessing a firearm and that it is a gross misdemeanor to 
        violate this paragraph.  The failure of the court to provide 
        this information to a defendant does not affect the 
        applicability of the firearm possession prohibition or the gross 
        misdemeanor penalty to that defendant. 
           (i) (k) Except as otherwise provided in paragraph (h) (j), 
        when a person is convicted of violating an order for protection 
        under this section, the court shall inform the defendant that 
        the defendant is prohibited from possessing a pistol for three 
        years from the date of conviction and that it is a gross 
        misdemeanor offense to violate this prohibition.  The failure of 
        the court to provide this information to a defendant does not 
        affect the applicability of the pistol possession prohibition or 
        the gross misdemeanor penalty to that defendant. 
           (j) (l) Except as otherwise provided in paragraph (h) (j), 
        a person is not entitled to possess a pistol if the person has 
        been convicted after August 1, 1996, of violating an order for 
        protection under this section, unless three years have elapsed 
        from the date of conviction and, during that time, the person 
        has not been convicted of any other violation of this section.  
        Property rights may not be abated but access may be restricted 
        by the courts.  A person who possesses a pistol in violation of 
        this paragraph is guilty of a gross misdemeanor. 
           (k) (m) If the court determines that a person convicted of 
        violating an order for protection under this section owns or 
        possesses a firearm and used it in any way during the commission 
        of the violation, it shall order that the firearm be summarily 
        forfeited under section 609.5316, subdivision 3. 
           Sec. 4.  Minnesota Statutes 1996, section 609.11, 
        subdivision 9, is amended to read: 
           Subd. 9.  [APPLICABLE OFFENSES.] The crimes for which 
        mandatory minimum sentences shall be served as provided in this 
        section are:  murder in the first, second, or third degree; 
        assault in the first, second, or third degree; burglary; 
        kidnapping; false imprisonment; manslaughter in the first or 
        second degree; aggravated robbery; simple robbery; criminal 
        sexual conduct under the circumstances described in sections 
        609.342, subdivision 1, clauses (a) to (f); 609.343, subdivision 
        1, clauses (a) to (f); and 609.344, subdivision 1, clauses (a) 
        to (e) and (h) to (j); escape from custody; arson in the first, 
        second, or third degree; drive-by shooting under section 609.66, 
        subdivision 1e; harassment and stalking under section 609.749, 
        subdivision 3, clause (3); possession or other unlawful use of a 
        firearm in violation of section 609.165, subdivision 1b, or 
        624.713, subdivision 1, clause (b), a felony violation of 
        chapter 152; or any attempt to commit any of these offenses. 
           Sec. 5.  Minnesota Statutes 1996, section 609.748, 
        subdivision 6, is amended to read: 
           Subd. 6.  [VIOLATION OF RESTRAINING ORDER.] (a) A person 
        who violates a restraining order issued under this section is 
        subject to the penalties provided in paragraphs (b) to (d).  
           (b) Except as otherwise provided in paragraphs (c) and (d), 
        when a temporary restraining order or a restraining order is 
        granted under this section and the respondent knows of the 
        order, violation of the order is a misdemeanor.  
           (c) A person is guilty of a gross misdemeanor who knowingly 
        violates the order during the time period between a previous 
        conviction under this subdivision; sections 609.221 to 609.224; 
        609.2242; 518B.01, subdivision 14; 609.713, subdivisions 1 or 3; 
        or 609.749; and the end of the five years following discharge 
        from sentence for that conviction.  
           (d) A person is guilty of a felony and may be sentenced to 
        imprisonment for not more than five years or to payment of a 
        fine of not more than $10,000, or both, if the person knowingly 
        violates the order:  
           (1) during the time period between the first of two or more 
        previous convictions under this subdivision or sections 518B.01, 
        subdivision 14; 609.221 to 609.224; 609.2242; 609.713, 
        subdivision 1 or 3; 609.749; and the end of the five years 
        following discharge from sentence for that conviction; 
           (2) because of the victim's or another's actual or 
        perceived race, color, religion, sex, sexual orientation, 
        disability as defined in section 363.01, age, or national 
        origin; 
           (3) by falsely impersonating another; 
           (4) while possessing a dangerous weapon; 
           (5) with an intent to influence or otherwise tamper with a 
        juror or a judicial proceeding or with intent to retaliate 
        against a judicial officer, as defined in section 609.415, or a 
        prosecutor, defense attorney, or officer of the court, because 
        of that person's performance of official duties in connection 
        with a judicial proceeding; or 
           (6) against a victim under the age of 18, if the respondent 
        is more than 36 months older than the victim. 
           (b) (e) A peace officer shall arrest without a warrant and 
        take into custody a person whom the peace officer has probable 
        cause to believe has violated an order issued under subdivision 
        4 or 5 if the existence of the order can be verified by the 
        officer.  
           (c) (f) A violation of a temporary restraining order or 
        restraining order shall also constitute contempt of court. 
           (d) (g) Upon the filing of an affidavit by the petitioner, 
        any peace officer, or an interested party designated by the 
        court, alleging that the respondent has violated an order issued 
        under subdivision 4 or 5, the court may issue an order to the 
        respondent requiring the respondent to appear within 14 days and 
        show cause why the respondent should not be held in contempt of 
        court.  The court also shall refer the violation of the order to 
        the appropriate prosecuting authority for possible prosecution 
        under paragraph (a) (b), (c), or (d). 
           Sec. 6.  Minnesota Statutes 1996, section 609.749, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [DEFINITION.] As used in this section, 
        "harass" means to engage in intentional conduct in a manner that 
        which: 
           (1) the actor knows or has reason to know would cause a 
        reasonable person the victim under the circumstances to 
        feel frightened, threatened, oppressed, persecuted, or 
        intimidated; and 
           (2) causes this reaction on the part of the victim. 
           Sec. 7.  Minnesota Statutes 1996, section 609.749, is 
        amended by adding a subdivision to read: 
           Subd. 1a.  [NO PROOF OF SPECIFIC INTENT REQUIRED.] In a 
        prosecution under this section, the state is not required to 
        prove that the actor intended to cause the victim to feel 
        frightened, threatened, oppressed, persecuted, or intimidated, 
        or except as otherwise provided in subdivision 3, clause (4), 
        that the actor intended to cause any other result. 
           Sec. 8.  Minnesota Statutes 1996, section 609.749, 
        subdivision 2, is amended to read: 
           Subd. 2.  [HARASSMENT AND STALKING CRIMES.] (a) A person 
        who harasses another by committing any of the following acts is 
        guilty of a gross misdemeanor: 
           (1) directly or indirectly manifests a purpose or intent to 
        injure the person, property, or rights of another by the 
        commission of an unlawful act; 
           (2) stalks, follows, or pursues another; 
           (3) returns to the property of another if the actor is 
        without claim of right to the property or consent of one with 
        authority to consent; 
           (4) repeatedly makes telephone calls, or induces a victim 
        to make telephone calls to the actor, whether or not 
        conversation ensues; 
           (5) makes or causes the telephone of another repeatedly or 
        continuously to ring; 
           (6) repeatedly uses the mail mails or delivers or causes 
        the delivery of letters, telegrams, messages, packages, or other 
        objects; or 
           (7) engages in any other harassing conduct that interferes 
        with another person or intrudes on the person's privacy or 
        liberty. 
           (b) The conduct described in paragraph (a), clauses (4) and 
        (5), may be prosecuted either at the place where the any call is 
        either made or where it is received.  The conduct described 
        in paragraph (a), clause (6), may be prosecuted either where the 
        mail is deposited or where it is any letter, telegram, message, 
        package, or other object is either sent or received. 
           Sec. 9.  Minnesota Statutes 1996, section 609.749, 
        subdivision 5, is amended to read: 
           Subd. 5.  [PATTERN OF HARASSING CONDUCT.] (a) A person who 
        engages in a pattern of harassing conduct with respect to a 
        single victim or one or more members of a single household in a 
        manner that which the actor knows or has reason to know would 
        cause a reasonable person the victim under the circumstances to 
        feel terrorized or to fear bodily harm and that which does cause 
        this reaction on the part of the victim, is guilty of a felony 
        and may be sentenced to imprisonment for not more than ten years 
        or to payment of a fine of not more than $20,000, or both. 
           (b) For purposes of this subdivision, a "pattern of 
        harassing conduct" means two or more acts within a five-year 
        period that violate the provisions of any of the following: 
           (1) this section; 
           (2) section 609.713; 
           (3) section 609.224; 
           (4) section 609.2242; 
           (5) section 518B.01, subdivision 14; 
           (6) section 609.748, subdivision 6; 
           (7) section 609.605, subdivision 1, paragraph (b), clauses 
        (3), (4), and (7); 
           (8) section 609.79; 
           (9) section 609.795; 
           (10) section 609.582; or 
           (11) section 609.595; or 
           (12) section 609.765. 
           (c) When acts constituting a violation of this subdivision 
        are committed in two or more counties, the accused may be 
        prosecuted in any county in which one of the acts was committed 
        for all acts constituting the pattern. 
           Sec. 10.  [EFFECT ON RULES OF CRIMINAL PROCEDURE.] 
           Rules 27 and 28 of the Rules of Criminal Procedure are 
        superseded to the extent they conflict with Minnesota Statutes, 
        section 244.09, subdivision 5, or 244.11. 
           Sec. 11.  [AMENDMENT TO SENTENCING GUIDELINES.] 
           (a) Except as provided in paragraph (b), the sentencing 
        guidelines commission may not amend the sentencing guidelines by 
        adding a plea agreement to the list of factors that should not 
        be used as a reason for departure from the presumptive sentence 
        under the guidelines. 
           (b) The commission shall study the advisability of allowing 
        a plea agreement to be used as a reason for a departure from a 
        presumptive sentence.  By December 15, 1997, the commission 
        shall report its findings and recommendations to the chairs of 
        the senate and house committees and divisions having 
        jurisdiction over criminal justice policy and funding.  If the 
        commission determines that it would be advisable to modify the 
        guidelines regarding the use of plea agreements for departures, 
        the commission shall submit its proposed modification to the 
        legislature before January 1 of the year the commission wishes 
        to make the change.  The modification shall be effective only if 
        the legislature, by law, approves the modification. 
           Sec. 12.  [EFFECTIVE DATES.] 
           Sections 1, 6 to 9, and 11 are effective the day following 
        final enactment and apply to crimes committed on or after that 
        date.  Sections 2 to 5 and 10 are effective August 1, 1997, and 
        apply to crimes committed on or after that date. 
           Presented to the governor May 2, 1997 
           Signed by the governor May 6, 1997, 11:07 a.m.

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