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Gross Misdemeanor


What is a Gross Misdemeanor in Minnesota?

Minnesota law divides crimes into felony and misdemeanor level 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?

No. 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:  The difference between the Minnesota and federal definitions of a “felony conviction” is one-day. But that one-day can have a big impact. For example it can have consequences on immigration status under federal law.

Compared to a simple misdemeanor

A Minnesota simple Misdemeanor is a crime that subjects a person 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?

Joan of Arc
Joan of Arc

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 it doesn’t matter whether the judge executes any of the sentence. Because the sentence the judge imposes triggers the level of conviction. See, Minnesota Statutes Section 609.13.

So 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.  We discuss Subdivision 1 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.

Minnesota Statutes Section 609.13, Subd. 2.

We discuss what “stay of imposition” means on our felony page.

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

What is a Minnesota Gross Misdemeanor?
What is a Minnesota Gross Misdemeanor?

A Gross Misdemeanor conviction from a guilty plea to a felony charge; is slightly better than a felony level conviction. But, it still has felony-type consequences. For example, it still triggers the loss of civil rights to firearms for certain felony convictions, even if later reduced.

So, 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 a judge executes a sentence of a year-and-one-day or more; the Sheriff delivers the defendant to the Minnesota Commissioner of Corrections (MN DOC) with a Warrant of Commitment to serve time in Minnesota state prison.

Gross misdemeanor jail:  But, when a judge executes a sentence of 91-365 days, the defendant remains under court jurisdiction; and serves time in the County Jail (or “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, can amend the criminal Complaint to a different criminal charge. Or the prosecutor can 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.

So, a prosecutor could amend a felony Theft Over $1,000 to a gross misdemeanor Theft Over $1,000 charge; though normally a felony.

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

A defense attorney can request a lesser-included offense jury instruction during a trial.  When the facts fit, the prosecutor cannot stop this.  After the judge gives the jury instruction, the jury could acquit on the more serious charges; but convict on the lesser-included.  In this situation the defense attorney reduces the level of the charge.

Sentencing as a gross misdemeanor

If the defendant pleads 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.

This is true, even if the judge stays execution of jail time. 

Patty Hearst mug
Gross misdemeanor: the charge vs. the sentence

More than 365 days imposed would be a felony sentence.  Less than 91 days imposed would be a misdemeanor.

For example, a defendant could plead guilty to felony Theft Over $1,000.  The judge could then impose 364 days jail, 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 that defendant successfully completes probation without violating any conditions, the court discharges her 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 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.  At sentencing the judge could impose and execute the maximum ten year prison term.  But in real life, we rarely see a maximum sentence executed.

Now, imagine that the judge instead imposes a five-year prison sentence; and stays execution of all but 90 days jail.  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, the judge here 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.

So, 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 discharge, Minnesota law reduces the level of conviction.  So, the person has a felony conviction record for a while; and then not any more (for limited purposes).

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.  Prior similar convictions are a common trigger for mandatory minimum sentencing laws. 

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

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.

Thomas Gallagher, Gross Misdemeanor Defense Lawyer in Minneapolis
Thomas Gallagher, Gross Misdemeanor Defense Lawyer in Minneapolis

Minnesota Defense Attorney Thomas C. Gallagher is on watch. He works hard to protect his clients from the dangers of a criminal charge; including Gross Misdemeanor consequences.

Attorney Thomas 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