A Minnesota Criminal Defense Lawyer Explains How to Avoid a Presumptive Prison Sentence After a Conviction for an Offense Against a Family Member
The judge’s verdict or your guilty plea echoes in your ears. You’ve been convicted of a serious crime—Malicious Punishment of a Child, False Imprisonment, or Child Neglect—and the Minnesota Sentencing Guidelines are pointing toward a presumptive executed sentence. That means the starting point, the most likely outcome, is prison. The future you planned is crumbling, and the fear of being locked away, separated from your family and your life, is overwhelming. You feel powerless, as if the path has been set and there’s no turning back. You didn’t want this outcome, and you are terrified of what comes next.
But the fight is not over. The conviction is one part of the battle; the sentencing is another. In Minnesota, a unique statute, § 609.38, provides a powerful tool that we can use to argue for a second chance. It allows a judge to set aside the presumptive prison sentence and grant you a “stayed sentence” instead—a chance to remain in the community, get treatment, and work to put your life and your family back together. As a criminal defense attorney who has fought for clients at sentencing hearings across Minnesota—from the courts in Minneapolis and St. Paul to Rochester, Duluth, and Brooklyn Park—I know how to use this law. It is a lifeline in a desperate time. You don’t have to face the sentencing judge alone.
What a “Stayed Sentence” Actually Means in Minnesota
In the Minnesota legal system, a “stayed sentence” is a form of judicial grace. It means that even though a sentence has been determined, the judge is putting it on hold. Instead of sending you to prison immediately, the judge places you on probation for a set period. As long as you follow all the conditions of your probation—which often includes treatment, no new offenses, and regular check-ins—you will not have to serve the initial sentence. Facing a presumptive prison sentence for an offense like child endangerment makes understanding this concept absolutely critical.
There are two main types of stayed sentences in Minnesota. A stay of execution means the judge announces the full sentence (e.g., 36 months in prison) but puts that prison time on hold while you serve probation. If you violate probation, the judge can “execute” the original sentence. A stay of imposition is even better. The judge does not formally impose a sentence at all. If you successfully complete probation, the felony conviction can be reduced to a misdemeanor, or in some cases, the case can be discharged without a conviction being entered. For someone facing a devastating felony conviction, a stayed sentence is the best possible outcome.
Minnesota Law on Stayed Sentences — Straight from the Statute
The legal authority that gives us the power to argue for this second chance is found in Minnesota Statute § 609.38. The law specifically encourages judges to prioritize treatment and family preservation over incarceration in certain cases. It is a clear statement of public policy that we can leverage in your favor. Here is the exact language:
609.38 STAYED SENTENCE.
For any violation of section 609.255, subdivision 3, 609.377, or 609.378 for which the Sentencing Guidelines establish a presumptive executed sentence, the court may stay imposition or execution of the sentence if it finds that a stay is in the best interest of the complainant or the family unit and that the defendant is willing to participate in any necessary or appropriate treatment. In determining an appropriate sentence when there is a family relationship between the complainant and the defendant, the court shall be guided by the policy of preserving and strengthening the family unit whenever possible.
Breaking Down the Path to a Stayed Sentence in Minnesota
Securing a stayed sentence under § 609.38 is not automatic. It’s a discretionary decision made by the judge. To convince the court to grant this relief, we must build a powerful case that proves you meet the specific criteria laid out in the statute. Our entire goal at your sentencing hearing will be to show the judge that you are a candidate for rehabilitation, not just punishment.
- A Qualifying Conviction: This statute is very specific. It only applies if you have been convicted of one of three offenses: False Imprisonment of a minor (§ 609.255, subd. 3), Malicious Punishment of a Child (§ 609.377), or Neglect or Endangerment of a Child (§ 609.378). If your conviction is for one of these crimes and you are facing a presumptive prison term, we can invoke this law.
- Best Interest of the Family or Complainant: We must convince the judge that sending you to prison would do more harm than good to your family or the victim. This can involve testimony from family members, letters of support, or evidence that you are a primary financial provider or caregiver. We will argue that the goal of “preserving and strengthening the family unit” is best served by keeping you in the home, under strict supervision.
- Willingness to Participate in Treatment: This is non-negotiable. You must show the judge that you are not just willing, but eager, to participate in any treatment the court deems necessary. This could include chemical dependency treatment, anger management courses, individual or family therapy, or parenting classes. Proactively enrolling in treatment before the sentencing hearing is one of the most powerful ways to demonstrate your commitment to change.
What You’re Facing: The Alternative to a Stayed Sentence
It’s crucial to understand what you’re up against and what we are fighting to avoid. A presumptive executed sentence means the Minnesota Sentencing Guidelines, which judges are required to consider, recommend prison. Without a successful argument for a stayed sentence, the judge will hand down a specific term of incarceration, and you will be taken into custody to begin serving that time. This means being sent to a Minnesota correctional facility in a place like St. Cloud, Stillwater, or Shakopee, where you will be cut off from your family, your job, and your community. This is the stark reality we are working to prevent.
Felony Conviction
An executed sentence means an immediate and permanent felony conviction on your record. This will strip you of your civil rights, including the right to vote while incarcerated and the right to own a firearm for life.
Prison Time
You will be ordered to serve a specific period in prison, followed by a term of supervised release (Minnesota’s version of parole). Any violation of your release conditions could send you right back to prison.
Devastating Personal Consequences
The impact of an executed sentence goes far beyond the prison walls. It can destroy families, end careers, and create a stigma that is almost impossible to escape. This is why fighting for a stayed sentence under § 609.38 is the most important legal battle you may ever face.
What Arguing for a Stayed Sentence Looks Like in Real Life
Building a case for a stayed sentence is about painting a picture for the judge—a picture of a person who made a terrible mistake but is ready and able to change. Here are some scenarios illustrating how we would use § 609.38.
The Parent Convicted of Neglect in Hennepin County
You live in Bloomington and have been convicted of child neglect related to your struggles with alcohol addiction. The guidelines recommend prison. Before sentencing, we get you into an intensive inpatient treatment program. We gather letters from your counselors, your sponsor, and your family members, all detailing your commitment to sobriety. At the hearing, we argue that the “best interest of the family” is to have a sober, recovering parent at home, not an incarcerated one. We use § 609.38 to ask for a stayed sentence with a condition of continued sobriety and treatment.
The Malicious Punishment Case in Ramsey County
You were convicted of Malicious Punishment of a Child in St. Paul after a physical altercation with your teenager. Your family is devastated but wants to heal, not be torn apart further by a prison sentence. We arrange for family counseling and have the therapist provide a report to the court. Your spouse and even your teenager write letters explaining that they believe the family can be strengthened through therapy and that sending you to prison would be counterproductive. We use the statute’s language about “preserving the family unit” as the core of our argument.
The Endangerment Conviction in St. Louis County
You were convicted of child endangerment in Duluth after leaving your child unsupervised. You are filled with remorse and have taken immediate steps to address the underlying issues that led to your poor judgment, including enrolling in parenting classes and individual therapy. We present the judge with certificates of completion and a report from your therapist. We argue that you have demonstrated a profound “willingness to participate in treatment” and that community supervision is a more effective and just outcome than prison.
How to Fight for a Stayed Sentence Under § 609.38
Getting a judge to depart from a presumptive prison sentence is an uphill battle. It requires a proactive, detailed, and persuasive presentation. This is not a passive process; we must give the judge every possible reason to choose rehabilitation over incarceration. Here’s how we fight.
Our strategy is to build a comprehensive “mitigation package.” This is a collection of documents, letters, and evidence designed to show the judge who you are beyond the single criminal act. It tells your life story, highlights your positive qualities, and demonstrates your potential for rehabilitation.
The goal is to humanize you in the eyes of the court. We need to show that you are more than the sum of your worst mistake. A well-prepared mitigation package, combined with a powerful legal argument based on § 609.38, can be the key to convincing a judge to grant a stay.
Demonstrate an Unwavering Commitment to Treatment
Words are not enough. We must show the judge that you are already taking concrete steps to address the root causes of your behavior.
- Proactive Enrollment: Before you even get to the sentencing hearing, we will get you assessed for and enrolled in any necessary treatment programs, whether it’s for substance abuse, mental health issues, or anger management. Having proof of enrollment and positive progress reports is the single most effective piece of evidence we can present.
- Letters from Professionals: We will ask your counselors, therapists, or sponsors to write letters to the court detailing your diagnosis, your treatment plan, your progress, and your prognosis for success. A professional opinion that you are a good candidate for rehabilitation carries immense weight with a judge.
Marshal Support from the Family and Community
The statute explicitly directs the judge to consider the “best interest of the complainant or the family unit.” We will use this to our full advantage.
- Letters of Support: We will gather compelling letters from your spouse, parents, children (if appropriate), friends, employer, and community members. These letters should speak to your character, your importance to your family and community, and your remorse for your actions.
- Victim’s Wishes: If the complainant (the victim) is supportive of you receiving treatment instead of prison time, their input can be incredibly persuasive. We will work carefully and ethically to see if the complainant is willing to express their wishes to the court.
Present a Coherent and Compelling Legal Argument
Armed with our mitigation package, I will make a formal motion for a “dispositional departure” from the sentencing guidelines.
- Focusing on the Statute: My legal argument will be grounded in the text of § 609.38. I will repeatedly emphasize the legislative policy of “preserving and strengthening the family unit whenever possible” and argue that a stayed sentence is the only way to achieve that goal in your case.
- Highlighting Your Amenability to Probation: We will argue to the judge that you are an excellent candidate for probation. We will highlight your stable housing, your employment history, your lack of a significant criminal record (if applicable), and your strong community support system as evidence that you can be safely supervised in the community.
Minnesota Stayed Sentence FAQs — What You Need to Know Now
What is the difference between a stay of imposition and a stay of execution?
A stay of execution is when the judge sentences you to a specific prison term (e.g., 24 months) but puts that sentence on hold. If you violate probation, you can be sent to prison for 24 months. A stay of imposition is when the judge does not impose a sentence. If you complete probation successfully, the felony is often reduced to a misdemeanor. A stay of imposition is almost always the better outcome.
What happens if I violate the conditions of my stayed sentence?
If you violate probation, the prosecutor will file a probation violation report, and a hearing will be held. If the judge finds that you violated the conditions, they can revoke the stay and order you to serve the original prison sentence. This is why it is absolutely critical to follow every condition perfectly.
Can I get a stayed sentence for any crime in Minnesota?
No. The specific protections of § 609.38 only apply to the three offenses listed in the statute. However, a judge can grant a stayed sentence for many other crimes based on general sentencing principles and mitigating factors, but § 609.38 provides a particularly strong, policy-based argument in family-related cases.
How long will I be on probation for a stayed sentence?
The length of probation depends on the severity of the offense and the judge’s discretion. For a felony-level offense, probation can last for several years, up to the maximum statutory sentence for the crime.
Will I still have a felony on my record with a stayed sentence?
With a stay of execution, yes, you will have a felony conviction on your record. With a stay of imposition, if you successfully complete probation, the charge is typically deemed a misdemeanor. This is a huge difference and a key reason why we fight so hard for a stay of imposition.
Do I have to go to the sentencing hearing?
Yes. Your presence at the sentencing hearing is mandatory. It is also your opportunity for the judge to see you and hear from you, which can be a critical part of our strategy.
Can I speak at my own sentencing hearing?
Yes, you have the right to make a statement to the court, which is called your right of allocution. We will work together extensively to prepare a statement that expresses your remorse, your understanding of the harm you caused, and your commitment to change.
What are “mitigating factors”?
Mitigating factors are reasons a judge might choose a less severe sentence. They can include a lack of a prior criminal record, showing remorse, having a minor role in the offense, and being particularly amenable to treatment or probation. We will identify and argue every possible mitigating factor in your case.
Does the victim have a right to speak at sentencing?
Yes, the victim (or complainant) has the right to make a statement to the court about how the crime has impacted them and what sentence they believe is appropriate.
What is a “dispositional departure”?
This is the formal legal term for what we are asking for. The “disposition” of a case is the sentence. The guidelines recommend a disposition of prison. We are asking the judge to “depart” from that recommendation and give you a disposition of a stayed sentence instead.
Can I appeal the sentence if the judge sends me to prison?
While you can appeal a sentence, the grounds for winning a sentencing appeal are very narrow. It is far more effective to put all of our effort into winning the argument at the initial sentencing hearing than to try and fix a bad result on appeal.
How can a lawyer help at sentencing?
An experienced criminal defense lawyer can be the difference between probation and prison. I will gather evidence, build a mitigation package, work with your family and treatment providers, write a persuasive legal brief, and make a powerful argument to the judge on your behalf. This is not something you can or should do on your own.
What are the chances of getting a stayed sentence?
This depends entirely on the specific facts of your case, your criminal history, and the strength of the mitigation evidence we can present. While there are no guarantees, a well-prepared and powerfully argued motion for a stayed sentence significantly increases your chances of avoiding prison.
Life After Conviction: The Two Paths of a Stayed vs. Executed Sentence
The sentence you receive will define your future. The two paths of a stayed sentence and an executed sentence could not be more different. One leads to a chance at redemption and rebuilding, while the other leads to a loss of freedom and a lifetime of struggle.
Path One: The Executed Sentence
If the judge orders an executed sentence, your life changes instantly. You are taken to prison. Your connection to your family is reduced to brief, supervised visits and expensive phone calls. You will likely lose your job and your home. When you are eventually released, you will be on supervised release, living under a microscope. You will have a felony record that makes finding a new job and stable housing incredibly difficult. You will be banned from owning a firearm for life. This path is a cycle of punishment and barriers that is hard to break.
Path Two: The Stayed Sentence
If we successfully argue for a stayed sentence, you walk out of the courtroom and go home. Your life will not be easy; you will be on strict probation. You will have to attend treatment, submit to testing, and meet with a probation officer. But you will be home. You can keep your job. You can be there for your family. You have the opportunity to actively work on yourself and prove that you can change. If you receive a stay of imposition and complete probation, the felony becomes a misdemeanor, a life-altering difference that opens up your future instead of closing it down. This path is one of challenge, but also one of hope and opportunity.
Why You Need a Tough, Experienced Minnesota Attorney for Your Sentencing Hearing
The sentencing hearing is your last line of defense against a prison sentence. This is not the time for a passive or inexperienced lawyer. You need a dedicated advocate who knows the law, knows the local courts, and knows how to build a compelling case for mercy. You need a fighter who can stand up to the prosecutor and persuade the judge to give you a second chance.
A Singular Focus on Your Second Chance
As a private defense attorney, I am not juggling an overwhelming caseload. Your case is my priority. I will devote the necessary time and resources to meticulously prepare your mitigation package and craft a sentencing argument tailored specifically to you. I will personally meet with you and your family, coordinate with your treatment providers, and be the one standing next to you in court, making the argument that will define your future. This level of personal attention can make all the difference.
The Power of Proactive Sentencing Preparation
The work for a successful sentencing hearing begins the moment a conviction is entered. We cannot wait until the last minute. I will immediately begin the process of gathering letters of support, arranging for necessary evaluations, and getting you enrolled in treatment. By the time we get to the hearing, we will have a comprehensive, professional, and persuasive package to present to the judge, demonstrating that we have been taking this process seriously from day one. This proactive approach shows the court that you are committed to rehabilitation.
Deep Knowledge of Sentencing Practices Across Minnesota
I have handled sentencing hearings in courts all over Minnesota, from the major metropolitan counties of Hennepin and Ramsey to Greater Minnesota. I understand the different philosophies and tendencies of the judges in Minneapolis, St. Paul, Plymouth, and beyond. I know which arguments are most effective in which courtrooms. This local experience allows me to tailor our strategy to the specific judge who will be deciding your fate, maximizing our chances of success.
A Commitment to Telling Your Story
My job at sentencing is to be your storyteller. I need to tell the judge who you are, not just what you did. I will present a narrative of your life, your struggles, and your potential for redemption. I will make the judge see you as a human being worthy of a second chance, not just another case number on their docket. By leveraging the powerful policy of Minnesota Statute § 609.38, we will argue that the best interests of justice, your family, and the community are all served by granting you a stayed sentence. Let me fight for your future.