Court of Appeals Says That All First Degree Burglaries of Occupied Dwelling Are Subject to Six Month Mandatory Minimum Sentence.

State v. Rausch, Minn.Ct.App., 5/23/2011.  After arguing with her ex-boyfriend, outside his home, Ms. Rausch entered his home without consent, assaulted him and then damaged his vehicle.  For this the state charged her with two counts of burglary – her first ever burglary - among other offenses.  Ms. Rausch entered a guilty plea to one count of burglary of an occupied dwelling under a plea agreement that called for a stay of imposition of sentence and an acknowledgment that Ms. Rausch would be asking for a departure from the mandatory minimum sentence of six months incarceration.  The trial court granted the departure and imposed a sixty day sentence – fifteen days in the workhouse and forty five days of alternative service. 

The state appealed, saying that the trial court had no authority to ignore the six month mandatory sentence that is contained in Minn.Stat. 609.582, subd. 1a:

A person convicted of committing burglary of an occupied dwelling, as defined in subdivision 1, clause (a), must be committed to the commissioner of corrections or county workhouse for not less than six months.

Seems pretty clear:  six months minimum for burglary of an occupied dwelling.  But Ms. Rausch argued that another statute, Minn.Stat. 609.583, still gives the trial court the discretion to depart from the presumptive sentence:

Except as provided in section 609.582, subdivision 1a, in determining an appropriate disposition for a first offense of burglary of a dwelling, the court shall presume that a stay of execution with at least a 90-day period of incarceration as a condition of probation shall be imposed unless the defendant’s criminal history score determined according to Sentencing Guidelines indicates a presumptive executed sentence, in which case the presumptive executed sentence shall be imposed unless the court departs from the Sentencing Guidelines pursuant to section 244.10. A stay of imposition of sentence may be granted only if accompanied by a statement on the record of the reasons for it. The presumptive period of incarceration may be waived in whole or in part by the court if the defendant provides restitution or performs community work service.

The appellate court says that 609.582 is more specific than is 609.583, so the former controls.  Actually, what it’s doing is legislating from the bench by changing the phrase “burglary of a dwelling” to “burglary of an occupied dwelling”.  That is, 609.583 applies only to the first burglary of an unoccupied dwelling, while 609.582 applies to all burglaries of an occupied dwelling.