Office of the Revisor of Statutes
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.
Official Publication of the State of Minnesota
Revisor of Statutes