State v. Myers
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State v. Myers
Opinion of the Court
The issue on this appeal is whether the value of the property taken may be considered in determining whether or not to depart durationally from the presumptive sentence for the “physical” property offense of possessing stolen property. Holding that it may be considered, we modify the decision of the court of appeals by reinstating the sentence imposed by the trial court.
■ Joseph Myers was convicted of possessing stolen property valued at $1,000 or more, Minn.Stat. § 609.53, subd. 1(1) (1986), and of a less serious offense, unauthorized use of a motor vehicle. The more serious offense of possessing stolen property is a severity level VI offense when, as here, the property possessed by the defendant in fact is valued at over $2,500.
The court of appeals reasoned first that possession of stolen property cannot be a so-called “major economic offense” because an offense can be a “major economic offense” only if it is an offense “committed by other than physical means.” 413 N.W. 2d at 126. This is correct. State v. Carr, 361 N.W.2d 397 (Minn. 1985) (receiving stolen property is not a “nonphysical” economic offense). However, the court of appeals then went on to say that in determining whether to depart durationally in sentencing a defendant for an economic offense committed by physical means, the trial court must “focus on the means of committing the offense,” and that the amount of the stolen property received or possessed cannot be used as an aggravating factor. 413 N.W.2d at 127. We believe that this is incorrect.
Like possessing or receiving stolen property, arson is a property offense committed by physical means. As such it technically cannot be a “major economic offense” even if committed for profit (e.g., in order to
A durational departure is similarly justified in a case of receiving or possessing stolen property if the conduct underlying the offense is substantially more serious than that typically associated with the commission of the offense. See, e.g., Carr, 361 N.W.2d at 402 (upholding durational departure in receiving stolen property case because defendant paid for stolen property with drugs). In such a case, as in the case of arson and other property offenses committed by physical means, we believe the trial court may consider the value of the property taken or damaged in determining whether or not to depart durationally.
In this case the value of the stolen property possessed by Myers was just under $100,000 or approximately 40 times the minimal amount needed to increase the offense from a severity level V offense to a severity level VI offense (see footnote 1). We believe that this makes this case of possessing stolen property sufficiently atypical to justify the limited durational departure of 1½ times the maximum presumptive sentence. Accordingly, we modify the decision of the court of appeals by reinstating the sentence imposed by the trial court.
Affirmed as modified.
. The Sentencing Guidelines make a distinction not made by the statute, classifying the offense as a severity level VI offense rather than a V offense if the stolen property possessed by the defendant is valued at over $2,500. See State v. Olson, 379 N.W.2d 524, 527 (Minn. 1986).
Dissenting Opinion
(dissenting).
I respectfully dissent because there are not, in this case, the “substantial and compelling circumstances” which we have held necessary to justify a trial court’s departure from the presumptive sentence and which the Sentencing Guidelines require for that purpose. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). The trial court here specifically found that Myer’s offense of possession of stolen property was not a major economic offense, a factor which, if found, may be used for departure. Minnesota Sentencing Guidelines, II.D. 2.(b)(4). There are no other factors which make the offense any more serious than the typical offense of possession of stolen property. Nor was the value of the stolen property a loss to its owners as the stolen property was all recovered and returned to the owners.
The use of the monetary value of the loss of property to justify an upward departure has been upheld in arson cases, State v. Broten, 343 N.W.2d 38 (Minn. 1984), State v. Hagen, 361 N.W.2d 407 (Minn.Ct.App. 1985), but its use is not appropriate in this possession of stolen property case. The drafters of the Guidelines and of Minn.Stat. 609.53 have already taken into account the differing amounts of money involved in determining the relevant penalties and severity levels of such offenses and in setting the presumptive sentences. The serious
Reference
- Full Case Name
- STATE of Minnesota, Petitioner, Appellant, v. Joseph MYERS, Respondent
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- 9 cases
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- Published