Generally, when an offender receives multiple sentences the durations will run concurrently. However, there are a few situations in which the court may sentence consecutively. The most common consecutive sentencing situations are outlined below. There are several offenses which have specific consecutive sentencing rules either in statute or in the Guidelines. For these offenses it is important to refer to the Guidelines in effect at the time of the current offense to ensure the appropriate policies are followed.
In a few specific situations, consecutive sentencing is presumptive meaning that concurrent sentencing would result in a departure. To avoid inadvertent departures, it is helpful to keep in mind the situations in which presumptive consecutive sentencing may be applicable. These are:
If the current offense meets one of the above situations, presumptive consecutive sentencing may be applicable. The next question to ask is "is there time remaining on the offense for which I am assigning a custody status point?" In many cases, an offender may have been on supervised release at the time of the current offense but by the time the current offense is sentenced the supervised release duration has expired. It is important to remember that in the case of presumptive consecutive sentencing, there must be another unexpired offense to sentence consecutively to.
Digging Deeper: Jail Credit
If an offender has been in jail awaiting sentencing on the current offense, the jail credit must be considered when determining whether presumptive consecutive sentencing is appropriate. When an offender is given a consecutive sentence the jail credit will only count towards one offense. If the the offender receives a concurrent sentence it is likely that jail credit will be applied to both offenses. This mean that if an offender was on supervised release for a 2nd Degree Assault when s/he committed a new 1st Degree Robbery. If the offender was held in jail for one year while the offender was awaiting conviction and sentencing on the new offense jail credit will need to be considered. If sentenced consecutively, the 12 months served in jail will be applied to an aggragated sentence (the time revoked on the supervised release period for the 2nd Degree Assault plus the new sentence for the 1st Degree Robbery). If sentenced concurrently, the 12 months served in jail will be applied to both sentences separately (12 months of the time revoked on the supervised release period and 12 months of the new sentence for the 1st Degree Robbery).
Permissive Consecutive Sentencing is an option for the court to have two or more sentences run consecutively rather than concurrently without a departure.
Permissive consecutive sentencing is most commonly used when there are two or more offenses on the permissive consecutive list found in section 6 of the Guidelines. In order for two offenses to be sentenced consecutively they must both have presumptive dispositions of commitment.
The following offenses allow for permissive consecutive sentencing in certain specific situations. Please refer to Guidelines section 2.F.2 for more information on these policies.
The policy for presumptive consecutive sentencing for a current DWI with a presumptive stayed sentence is unique in that rather than creating a consecutive executed sentence it creates a consecutive stayed sentence.
If there is a prior unexpired misdemeanor, gross misdemeanor, or felony DWI for which the offender is on probation and the current offense is a presumptive stayed sentence, the presumptive executed duration for the new offense would run consecutive to the prior offense.
For a Controlled Substance Offense in the 1st through 5th Degree including a dangerous weapon, consecutive sentencing may apply.
In order for an offense to be eligible a presumptive consecutive sentence under this policy the offense must
If the offense meets both of these conditions, the mandatory minimum for the drug offense and the mandatory minimum may be sentenced consecutively.
Note: The Guidelines has interpreted the statute to mean that the two mandatory minimums will be applied for a single count and will run consecutively. This means that a controlled substance offense is not eligible for consecutive sentencing to a Felon in Possession of a Firearm offense under this policy.
When determining if consecutive sentencing is appropriate, the applicable mandatory minimums must be used. The table below outlines the applicable mandatory minimums. To determine the consecutive duration, the controlled substance mandatory minimum would be added to the weapon mandatory minimum.
*Because the mandatory minimums for 4th and 5th Degree Controlled Substance Offenses are less than 1 year and 1 day, they are considered local confinement and not part of the presumptive Guidelines sentence. The presumptive sentence for these offenses would be the mandatory minimum for the weapon or the Grid duration, whichever is longer.