Minn. R. Crim. P. 27.05

As amended through October 28, 2024

Rule 27.05 - Pretrial Diversion

Subd. 1.Agreements.

(1) A prosecution may be suspended for a specified time and then dismissed under subdivision 6 if:

(a) the agreement is in writing and signed by the parties;

(b) the victim's views are considered;

(c) the court consents;

(d) the court finds a substantial likelihood of conviction and that the benefits of rehabilitation outweigh the harm to society from suspending prosecution.

(2) The agreement must provide that the defendant not commit a new crime or petty misdemeanor and that the defendant waive the right to a speedy trial.

In addition, the agreement may:

(a) include stipulations of fact or of the admissibility of specified testimony, other evidence, and depositions if the diversion agreement is terminated and the case is tried;

(b) provide for any term a court could impose as a condition of probation except the defendant may not be incarcerated as a condition of diversion.

(3) Limitations. The agreement cannot suspend prosecution longer than the period of probation the court could impose if the defendant were convicted. The agreement cannot include a condition the court could not impose as a condition of probation.

Subd. 2.Filing of Agreement; Release. If a diversion agreement is reached, the prosecutor must file the agreement along with a statement suspending the prosecution for a specified time with the court. The defendant must be released when the agreement is filed.

Subd. 3.Modification. The parties, with the court's approval, may agree to modify the terms of the diversion.

Subd. 4.Termination of Agreement and Resumption of Prosecution.

(1) Defendant's Notice. The defendant may terminate the agreement by filing a termination notice with the court. The prosecution will then proceed.

(2) Prosecutor's Motion. The court may terminate the agreement on the prosecutor's motion if the court finds:

a. the defendant or defense counsel misrepresented material facts affecting the agreement and the prosecutor moves to terminate the agreement within 6 months after it commences; or

b. the defendant has committed a material violation of the agreement, and the prosecutor makes the motion no later than 1 month after the suspension period specified in the agreement expires.

(3) Issuance of Warrant or Summons. The court may order the defendant's arrest and prompt appearance for the hearing on the prosecutor's motion if the court, based on affidavit, written statement signed under penalty of perjury pursuant to Minnesota Statutes, section 358.116, or testimony, finds:

(a) probable cause exists to believe the defendant committed a material violation of the agreement; and

(b) a substantial likelihood exists that the defendant will not appear at a termination hearing.

In lieu of a warrant, the court may issue a summons ordering the defendant to appear.

Subd. 5.Release Status upon Resumption of Prosecution. If the agreement is terminated, the defendant must return to the release status in effect before the agreement, unless the court alters those terms under Rule 6.

Subd. 6.Termination of Agreement and Dismissal of Charges.

(A) Automatic Dismissal. The charges must be dismissed 1 month after the suspension period specified in the agreement expires unless the prosecutor earlier moved to terminate the agreement.

(B) Dismissal of Motion. If the court denies the motion to resume prosecution, and the specified suspension time has elapsed, the charges must be dismissed.

(C) Effect of Dismissal. If the court dismisses the charge under this rule, the defendant cannot be prosecuted for it.

Subd. 7.Termination and Dismissal on a Showing of Rehabilitation. The court may terminate the agreement, dismiss the charges, and prohibit further prosecution if:

(1) a party moves for termination and provides facts supporting it;

(2) the court gives the parties an opportunity to be heard;

(3) the court finds the defendant has not committed any additional offenses; and

(4) the court finds the defendant appears to be rehabilitated.

Subd. 8.Modification or Termination. If the court finds the prosecutor obtained the defendant's agreement to diversion because of a material misrepresentation by the prosecutor or a person covered by Rule 9.01, subd. 1a(1), the court may:

(1) modify the parts of the agreement related to the misrepresentation; or

(2) if justice requires, terminate the agreement and prohibit further prosecution of the charge.

Minn. R. Crim. P. 27.05

Amended effective 7/1/2015.

Comment-Rule 27

Minn. Const. Art. I, § 7, provides that all persons before conviction must be bailable by sufficient sureties. The defendant is not entitled to bail as a matter of right after conviction.

If pursuant to Rule 27.02 a presentence report is prepared, the officer conducting the investigation is required by Minn. Stat. § 609.115, subd. 1 and Minn. Stat. § 611A.037 to advise the victim of the crime concerning the victim's rights under those statutes and under Minn. Stat. § 611A.038. Those rights include the rights to request restitution and to submit an impact statement to the court at sentencing.

The sentencing hearings "as provided by law" under Rule 27.03, subd. 1 would include restitution proceedings under Minn. Stat. §§ 611A.04 and 611A.045.

Rule 27.03, subd. 1(B)(5), contemplates that the court or the probation officer will provide the parties with a copy of a filed presentence investigation report via electronic transmission or access. Since the advent of the Minnesota Rules of Criminal Procedure, there have been counties in which "confidential portions" of presentence investigation reports were not forwarded to the parties, and were made available to the parties by in-court inspection only. The 2015 amendment to the rule provides that any presentence investigation report filed with the court must also be forwarded to the parties without separation into "non-confidential" or "confidential" portions, or redaction by the court. If the probation officer has any "confidential sources of information" to disclose (see Minn. Stat. § 609.115, subd. 4), that information must not be contained in the presentence investigation report that is filed with the court, and must be disclosed to the court in a separately filed document or in an in-chambers hearing.

The Sentencing Guidelines Commission recommends that when the felony being sentenced involves a sexual offense, the trial court should order a physical or mental examination of the offender as a supplement to the presentence investigation permitted by Minn. Stat. § 609.115. Minnesota Sentencing Guidelines and Commentary, Training Material, III. E. Rule 27.03, subd. 1(B) permits the court to order these examinations. This rule does not preclude a post-sentence investigation whenever required by statute (Minn. Stat. § 609.115, subd. 2 (sentence of life imprisonment)) or whenever the court considers one necessary. The presentence investigation may include the information obtained on the pretrial release investigation under Rule 6.02, subd. 3. If a defendant is convicted of a domestic abuse offense as defined by Minn. Stat. § 609.2244, subd. 1, a presentence domestic abuse investigation must be conducted. A report must then be submitted to the court that meets the requirements in Minn. Stat. § 609.2244, subd. 2.

The Advisory Committee strongly commends the practice, now in effect in some counties, of preparing the Sentencing Guidelines Worksheet before the Omnibus Hearing. This may be done in connection with a pre-release investigation under Rule 6.02, subd. 3 and may later be included with any presentence investigation report required under Rule 27.03, subd. 1.

The date for the return of the presentence investigation report should be set sufficiently in advance of sentencing to allow counsel sufficient time to make any motion under Rule 27.03, subd. 1(B)(6). The officer conducting the presentence investigation is required by Minn. Stat. § 609.115 and Minn. Stat. § 611A.037 to advise any victim of the crime concerning the victim's rights under those statutes and under Minn. Stat. § 611A.038. Those rights include the rights to request restitution and to submit an impact statement to the court at sentencing.

Rule 27.03, subd. 1(B)(7) is in accord with Minn. Stat. § 244.10, subd. 1, which requires that the court issue written findings of fact, conclusions of law and appropriate order on the issues raised at the sentencing hearing at the conclusion of the hearing or within twenty days afterwards.

In Rule 27.03, subd. 1(B)(8) the term "sentencing hearing" refers to the hearing required by Minn. Stat. § 244.10, subd. 1 on issues of sentencing. In the usual case, actual sentencing should immediately follow.

Minn. Stat. § 611A.06 requires the Commissioner of Corrections or other custodial authority to notify the victim of the crime when an offender is to be released from imprisonment. Minn. Stat. § 611A.0385 further requires that the court or its designee shall at the time of the sentencing make reasonable good faith efforts to inform any identifiable victims of their right to such notice under Minn. Stat. § 611A.06.

Minn. Stat. § 244.10, subd. 2 requires written findings of fact as to the reasons for departure from the sentencing guidelines. The court's statement into the record under Rule 27.03, subd. 4(C), should satisfy this requirement, but the rule further requires that the reasons for departure must be stated in a sentencing order or in a departure report attached to the sentencing order. Whichever document is used, it must be filed with the sentencing guidelines commission within 15 days of the date of the sentencing.

Rule 27.03, subd. 4(D) is designed to eliminate any possible due process notice problems where a defendant does not request a sentencing hearing because of an expectation of receiving a sentence in conformance with the sentencing guidelines. It is also anticipated that fewer sentencing hearings will be requested by the prosecution and defense so long as an opportunity exists to request such a hearing after notice that the court might depart from the guidelines.

Rule 27.03, subd. 4(E) avoids any due process notice problems if the court revokes probation and executes the sentence. Except as provided in Minn. Stat. § 609.135, subd.7, a defendant has a right to refuse probation when the conditions of the probation are more onerous than a prison sentence, State v. Randolph, 316 N.W.2d 508 (Minn.1982).

Rule 27.04 does not require an initial probable cause hearing on the probation violation report. The hearing is not constitutionally required if the defendant is not in custody or if the final revocation hearing is held within the time that the preliminary hearing would otherwise be required. Pearson v. State, 308 Minn. 287, 241 N.W.2d 490 (1976). It is, however, necessary under Rule 27.04, subd. 1(2) that the defendant be brought before the court after arrest within the same time limits as set forth under Rule 3.02, subd. 2 for arrests upon warrant.

If the violation report alleges multiple bases for probation revocation, one of which is an allegation of new criminal conduct, the limited use immunity in Rule 27.04, subd. 2(4)(c), attaches only at the criminal trial arising from the allegation of a new crime.

Rule 27.05 (Pretrial Diversion) does not preclude the prosecutor and defendant from agreeing to diversion of a case without court approval if charges are not pending before the court. The requirement in subd. 1(1) that the prosecutor give "due consideration of the victim's views" is in accord with the requirement in Minn. Stat. § 611A.031 that the prosecuting attorney "make every reasonable effort to notify and seek input from the victim" before employing pretrial diversion for certain specified offenses.

With the approval of the court, the pretrial diversion agreement may provide for any term a court could impose as a condition of probation, including restitution. See Minn. Stat. §§ 611A.04 and 611A.045 as to requiring restitution as part of a sentence.

Under Rule 27.05, subd. 1(3), no condition may be included in the pretrial diversion agreement that could not be imposed upon probation after conviction of the crime charged. See Minn. Stat. § 609.135 as to the permissible conditions of probation. See Minn. Stat. § 611A.031 regarding the prosecutor's duties under the Victim's Rights Act, for certain designated offenses, to make every reasonable effort to notify and seek input before placing a person into a pretrial diversion program.