Gross Misdemeanor

What is a Gross Misdemeanor in Minnesota?

Joan of Arc

Joan of Arc

Under Minnesota law, divides crimes into felony and misdemeanor crimes.  It further divides Misdemeanor crimes into Gross Misdemeanors and simple Misdemeanors.

Under Minnesota law, a felony is a crime punishable by one-year-and-one-day or longer imprisonment.  But federal law defines a felony as a crime punishable by one-year or longer imprisonment.

Is a Gross Misdemeanor a Felony?

Under strictly Minnesota law, a gross misdemeanor is not a felony.  But, watch out!  A Minnesota gross misdemeanor conviction can be a felony under federal immigration law.  You need a good criminal defense lawyer who knows the law and protects you with it.

What a difference a day makes:  That one-day difference between the Minnesota and federal definitions of “felony conviction” can have big impacts, for example due to consequences on immigration status under federal law.

Compared to a simple misdemeanor

A simple Misdemeanor under Minnesota law is a crime for which a person is subject to arrest, pre-trial detention, and 90 days or less of jail.

The between category

A Gross Misdemeanor is the in-between category: a crime punishable by up to 365 days.  (Note the overlap with the usual federal definition of felony: punishable by 365 days or more.)

What is a Gross Misdemeanor conviction?

When a judge imposes a sentence of between 91 and 365 days, that is a Minnesota gross misdemeanor conviction.  That sounds simple enough, but a deeper look reveals more.

Level of charge vs. level of conviction:  Minnesota has three severity levels of crimes, felony, gross misdemeanor, and misdemeanor.  Minnesota law determines the level of conviction by the sentence the judge imposes at sentencing.  A judge can impose a sentence and then stay execution of all or part of it.  But whether or not the judge ever executes any of the sentence, the sentence the judge imposes triggers the level of conviction. See, Minnesota Statutes Section 609.13.

What is a Minnesota Gross Misdemeanor?

What is a Minnesota Gross Misdemeanor?

A felony charge can result in a Gross Misdemeanor conviction.  And, a gross misdemeanor charge can result in a Misdemeanor conviction.  This is based on Minnesota Statutes Section 609.13, subdivisions 1 and 2.  Subdivision 1 is discussed on our felony page.  Subdivision 2 (2017) says:

Subd. 2.  Gross misdemeanor. Notwithstanding that a conviction is for a gross misdemeanor, the conviction is deemed to be for a misdemeanor if:
(1) the sentence imposed is within the limits provided by law for a misdemeanor as defined in section 609.02; or
(2) if the imposition of the sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without sentence.

The meaning of “stay of imposition” is discussed on the felony page.

Where does a Gross Misdemeanor conviction fit in the hierarchy of conviction levels?

As covered on the felony page, a Gross Misdemeanor conviction following a guilty plea or verdict to a felony charge, is somewhat better than a felony level conviction, but still has significant felony-type consequences (for example, the loss of civil rights to firearms for certain felony convictions, even if later reduced).

A Gross Misdemeanor conviction based on a guilty plea or verdict on a gross misdemeanor charge; is better than a conviction resulting from a guilty plea or verdict on a felony charge.

What about punishments and jail time for a Gross Misdemeanor?

Compare to felony prison:  When it comes to potential incarceration, a person with an executed sentence of a year-and-one-day or longer (felony sentence) normally will be delivered to the Minnesota Commissioner of Corrections (MN DOC) with a Warrant of Commitment to serve time in Minnesota state prison.

Gross misdemeanor jail:  On the other hand, a person with an executed sentence of 91-days to 365-days (Gross Misdemeanor sentence) will remain under court jurisdiction and delivered to the County Jail (sometimes called “the workhouse”).

As one would expect, a Gross Misdemeanor conviction will have worse consequences than a simple Misdemeanor conviction.

How plea bargains and sentences can result in a gross misdemeanor conviction

Amendment of the charge

A prosecutor on their own, or under a plea agreement with the defense can amend the criminal Complaint to charge a different criminal statute; or to charge a felony criminal statute “as a gross misdemeanor.”  We won’t get into the why here, but suffice it to say they have their reasons when they do.

This could mean that a crime charged as say, a felony Theft Over $1,000 could be amended to a gross misdemeanor Theft Over $1,000 charge (even though Theft Over $1,000 is normally a felony charge).

If the defendant then pleads guilty to the amended gross misdemeanor charge, and the judge imposes between 91 and 365 days jail; then the defendant would have a gross misdemeanor conviction; and would avoid ever having a felony conviction.

A defense attorney can request a lesser-included offence jury instruction during a trial.  When the facts fit, the prosecutor cannot stop this.  After the judge gives the jury instruction, the jury has the chance to acquit the defendant of the more serious charges and convict on the lesser-included.  In this situation the defense attorney reduces the level of conviction.

Sentencing as a gross misdemeanor

If the defendant were to plead guilty to a felony charge, the judge could still impose a gross misdemeanor level sentence.

When the judge imposes 91 days to 365 days the level of sentence is a gross misdemeanor — even if the judge stays execution of jail time.  More than 365 days would be a felony sentence.  Less than 91 days would be a misdemeanor.

For example, a defendant could plead guilty to felony Theft Over $1,000, the judge could impose 364 days jail time, and stay execution of all but 30 days jail for five years.  This would mean that from the day of sentencing until successful completion of probation, the defendant has a felony conviction.

But if the defendant successfully completes probation without violating any conditions, the court discharges the defendant from the sentence (from probation).  At that point, Minnesota law reduces the level of conviction to a gross misdemeanor level.  Why?  Because the number of days of jail time that the judge imposed at sentencing was within the gross misdemeanor sentence range; and Minnesota Statutes Section 609.13, subdivision 2.

What does imposition of sentence mean?

Every criminal statute authorizes a maximum period of incarceration.  Imagine a criminal statute that provides for a ten-year maximum prison penalty.  If a court convicts a person under that statute, at sentencing the judge could impose and execute the maximum ten year prison term.  In real life, it’s quite rare to see a maximum sentence executed.

Now, let’s imagine that the judge instead imposes a five-year prison sentence, and stays execution of all but 90 days jail time.  What does that mean?  When a judge “imposes” a term of incarceration that then becomes the maximum that defendant will ever do for that conviction.

So here, the judge effectively reduces the ten-year statutory maximum to a maximum of the five years the judge imposes at sentencing.  Once the judge “imposes” a term of incarceration, he or she can then execute all or part of it; or can stay execution of all of part of the sentence imposed.

A felony charge can result in a non-felony conviction in three ways
  1. Charge reduced to a non-felony charge before sentencing.  Here, there was never felony conviction, even though a felony charge at one point.
  2. Sentenced as a non-felony, after guilty plea to a felony charge (for example, 365 days imposed).  Here also, the level of conviction is non-felony (gross misdemeanor or misdemeanor) from the moment of sentencing.
  3. Stay of Imposition of Felony Sentence.  In this case, there was a felony conviction until discharge from probation without violating a condition.  After that, the level of conviction is reduced.  So, the person has a felony conviction record for a while, and then later it’s reduced.

Examples of Minnesota Gross Misdemeanors

These are all Minnesota crimes that a prosecutor can charge as a gross misdemeanor, or at a another severity level.


The penalty of up to one year in jail defines a gross misdemeanor.  But for people with a clean record, the biggest penalty is getting a public conviction record.  For some selected gross misdemeanors, a mandatory minimum sentencing law may apply.

Whether the client’s goal is to avoid jail or keep their record clean, a good defense attorney is essential.

In a Gross Misdemeanor case, you need the best Minnesota criminal attorney

Thomas Gallagher, Felony Defense Lawyer in Minneapolis

Thomas Gallagher, Felony Defense Lawyer in Minneapolis

If the discussion on this page is a little hard to understand, that’s o.k.  Defense Attorney Gallagher believes that his clients and potential clients should be well informed.  And he works hard to help them understand the law, the legal problem and available solutions.

Minnesota Defense Attorney Thomas C. Gallagher is on watch to protect his clients from the danger presented by a criminal charge, including the consequences of a Gross Misdemeanor conviction.

Gallagher believes that he can better protect clients when they know more about the law.

Question?  Call Minnesota Criminal Defense Attorney Thomas Gallagher at 612 333-1500