Cited by

State v. Thompson , –28 (Minn. 2006) (citing Minn. R. Crim.

In general, “[a] waiver made in compliance with Rule 26.01, subdivision 1(2)(a), meets the knowing, voluntary, and intelligent requirement.”

The supreme court granted review

1(b) (2018); (“[E]lements of an offense cannot be used as aggravating factors to impose an upward sentencing departure for that same offense.” (quotation omitted)).

- 28 (Minn. 2006) (citing Minn. R. Crim.

It cannot be based on factors already accounted for as elements of the current offense, -30 (Minn. 2006), or “unfairly exaggerate the criminality of the defendant’s conduct,”

(stating that sentencing courts may not use elements of an offense as an aggravating factor during sentencing).

(“[A] sentencing court may not base an upward durational departure on factors that the legislature has already taken into account in determining the degree of seriousness of the offense.”).

See, -31 (Minn. 2006) (affirming finding a high degree of sophistication and planning in a theft by swindle where finance manager st ole money by manipulating terminated employees’ payroll accounts and immediately removing the ac counts in order to conceal the scheme), rev. denied (Minn. Sept.

See State v. Thompson , 830 -31 (Minn. 2006) (reversing the court of appeals and affirming a double upward durational departure sentence of 114 months for nine theft -by-swindle convictions relating to embezzlement of $600,000); State v. Rott , -75 (Minn. 1981) (upholding departure, but reducing sentence to 24 m

-28 (Minn. 2006) (citing Minn. R. Crim.

See e.g. , State v. Meyers , (“[F]acts considered by the Legislature in determining the severity of th e offense being sentenced cannot serve as a basis for departure.”); (holding that conduct underlying one conviction cannot be used to support an upward departure in another conviction); State v. Erickson , (holding that prior criminal offenses could not be a grounds fo r departure because they were already factored into criminal-his

1(2)(a), “meets the knowing, voluntary, and intellig ent requirement.” State v. Thompson

State v. Thompson , , 827 (Minn. 2006).

(stating that impermissible double-counting arises when the defendant is convicted of and sentenced for multiple counts and the district court uses the conduct underlying one count to support the aggravated factor on another count); see also State v. O’Hagan, (Minn.App.

( n.4 (Minn. 2006)), review denied (Minn. July 20, 2010).

(“[T]he district court is not permitted to impose an upward departure if the sentence will unfairly exaggerate the criminality of the defendant’s conduct, or punish a defendant twice for the same conduct.”) ; see also State v. Thompson , (concluding that “double counting” a fact as both proof of an element of theft by swindle and an aggravating factor is impermissible).

at 238; d 820, 827, 831 n.4 (Minn. 2006) (using “enhancement” and “aggravating” to describe factors that serve as basis for sentencing departure).

(d 820, 831 n.4 (Minn. 2006)), review denied (Minn. July 20, 2010).

(holding that defendant may waive his right to a sentencing hearing).

impliedly overrule Peake and Lindsey.

The supreme court has stated, “[A] defendant’s waiver of the right to a jury determination of aggravating sentencing factors must be made knowingly, voluntarily, and intelligently.”

(permitting waiver of the right to a jury determination of aggravating sentencing factors as long as waiver is made knowingly, voluntarily, and intelligently).

to support the proposition that an element of an offense cannot be used as an aggravating factor.

828-31 (Minn.2006) (affirming a double-durational departure sentence for the offense of theft-by-swindle on the ground that the facts supported the conclusion the crime was a major economic offense, which is an aggravating factor under the Sentencing Guidelines); State v. Rott, 313 *-75 (Minn.