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Gross Misdemeanor Offense Level

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

What is a Gross Misdemeanor?

In Minnesota, the definition of a Gross Misdemeanor is “any crime which is not a felony or misdemeanor. The maximum fine which may be imposed for a gross misdemeanor is $3,000.” Minn. Stat. §609.02, Subd. 4.

Under Minnesota law, a felony is a crime punishable by one-year or longer imprisonment. (Since 2023, it now matches federal law which defines a felony as a crime punishable by one-year or longer imprisonment, as well.)

Is a Gross Misdemeanor a Felony?

No. Under strictly Minnesota law, a gross misdemeanor is not a felony. But, watch out! An older Minnesota gross misdemeanor conviction could 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: Before 2023, the difference between the Minnesota and federal definitions of a “felony conviction” was one-day. But that one-day could 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 364 days. (Before 2023, Minnesota had an 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 364 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. (A petty misdemeanor is defined as “not a crime.”)

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 (2022) 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.”

Minn. Stat. § 609.13, Subd. 2.

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

Gross Misdemeanor conviction vs. other levels

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 Gross Misdemeanor conviction resulting from a guilty plea or verdict on a felony charge.

Punishments & jail time for Gross Misdemeanor

Compare to felony prison: When a judge executes a sentence of a year 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 91-364 days, the defendant remains under court jurisdiction; and serves time in the County Jail (or “the workhouse”).

Plea bargains & sentences can result in gross conviction

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.

Amendment of the charge

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

If the defendant then pleads guilty to the amended gross misdemeanor charge, and the judge imposes 91 – 364 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 (rather than the prosecutor).

Sentencing as a gross misdemeanor

If the defendant pleads guilty to a felony charge, the judge could still impose a gross misdemeanor level sentence (especially in the event of a “straight plea” — no plea agreement with the prosecutor).

When the judge imposes 91 days to 364 days, the level of sentence is a gross misdemeanor. This is true, even if the judge stays execution of jail time.

handcuffs-gross-misdemeanor-300 Gross: misdemeanor charge vs. sentence
Gross: charge vs. sentence

More than 364 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 (even if she violates probation).

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, she can then execute all or part of it; or can stay execution of all of part of the sentence imposed.

Three ways felony charge can result in a non-felony conviction

  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, 364 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 conviction on a felony charge until discharge from probation without violating a condition. After discharge, Minnesota law reduces the level of conviction (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 364 days in jail now 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.

Gross Misdemeanor: 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 benefit from more information, rather than less. And he works hard to help them understand the law, the legal problem as well as available solutions.

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 Attorney Thomas Gallagher, 612 333-1500

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