State v. Garcia, 302 N.W.2d 643 (Minn. 1981). · Go Syfert
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State v. Garcia, 302 N.W.2d 643 (Minn. 1981). Cases Citing This Book View Copy Cite
234 citation events (34 in the last 25 years) across 5 distinct courts.
Strongest positive: State of Minnesota v. Isaac Gutierrez (minnctapp, 2025-09-02)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) State of Minnesota v. Isaac Gutierrez
Minn. Ct. App. · 2025 · confidence medium
“Underlying the Guidelines is the notion that the purposes of the law will not be served if judges fail to follow the Guidelines in the ‘general’ case.” State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (overruled on other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996).
discussed Cited as authority (rule) State of Minnesota v. Dionte Gosa
Minn. Ct. App. · 2016 · confidence medium
Although a court may depart from the guidelines when substantial and compelling circumstances are present, State v. Garcia, 302 N.W.2d 643, 657 (Minn. 1981), “it would be a rare case which would warrant reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (concluding in a case where the district court did not depart where there were arguments for departure “the determination whether or not to depart was clearly a discretionary decision”).
discussed Cited as authority (rule) Townsend v. State
Minn. · 2013 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (internal quotation marks omitted). 2 But the sentencing guidelines in effect at the time of the offense provided that the 72-month consecutive sentence imposed by the district court was not a departure.
discussed Cited as authority (rule) State v. Eller
Minn. Ct. App. · 2010 · confidence medium
See Williams v. State, 361 N.W.2d 840, 844 (Minn.1985) (allowing for reversal of sentences when the record does not establish the existence of any proper aggravating factors); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (reviewing a sentencing decision, based partially on valid sentencing considerations, for a clear abuse of discretion), overruled on other grounds, State v. Givens, 544 N.W.2d 774 , 777 n. 4 (Minn.1996).
discussed Cited as authority (rule) State v. Jackson (2×)
Minn. · 2008 · confidence medium
The district court’s decision to depart upward on a sentence for aggravated robbery in the first degree, committed with a dangerous weapon, based on the severe injuries inflicted and invasion of the victim’s zone of privacy is consistent with our rule that “it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced.” State v. Cox, 343 N.W.2d 641, 643-44 (Minn.1984) (holding that the gratuitous infliction of serious injuries that exceeded the level of injury required to prove the offense warranted an upward de…
discussed Cited as authority (rule) State v. Dettman (2×)
Minn. · 2006 · confidence medium
See, e.g., Rairdon v. State, 557 N.W.2d 318, 321, 327 (Minn.1996) (upward departure based on defendant's admission during jury trial of beginning sexual abuse of daughter when she was eight and continuing abuse for five years); State v. Garcia, 302 N.W.2d 643, 645-47 (Minn.1981) (upward departure based on defendant's admissions made during guilty plea), overruled on other grounds by State v. Givens, 544 N.W.2d 774 , 777 n. 4 (Minn.1996). .
discussed Cited as authority (rule) State v. Shattuck (2×)
Minn. · 2005 · confidence medium
In this court’s first decision construing the Sentencing Guidelines, we stated: “Underlying the Guidelines is the notion that the purposes of the law will not be served if judges fail to follow the Guidelines in the ‘general’ case.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Petschl
Minn. Ct. App. · 2004 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Petschl
Minn. Ct. App. · 2004 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
discussed Cited as authority (rule) State v. Saue
Minn. Ct. App. · 2004 · signal: cf. · confidence medium
See Wash. Rev.Code Ann. § 9.94A.535 (2003) (providing that court “may” impose an “exceptional sentence” if aggravating factors are found); see also State v. Mail, 65 Wash.App. 295 , 828 P.2d 70, 72 (1992) (describing departure as an “option” if aggravating factors present); cf. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that, under the guidelines, the judge “may” depart if aggravating factors are present), and State v. Oberg, 627 N.W.2d 721, 724 (Minn.App.2001) (noting that, even if mitigating factors are present, the court is not required to depart).
discussed Cited as authority (rule) State v. Hanf (2×) also: Cited "see"
Minn. Ct. App. · 2004 · confidence medium
Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that under the guidelines the judge “may” depart if aggravating factors are present); State v. Oberg, 627 N.W.2d 721, 724 (Minn.App. 2001) (noting that even if mitigating factors are present, court is not required to depart), review denied (Minn. Aug. 22, 2001).
discussed Cited as authority (rule) State v. Rourke
Minn. Ct. App. · 2004 · confidence medium
State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981); see, e.g., State v. Cermak, 344 N.W.2d 833, 840 (Minn.1984) (holding that offender acts with particular cruelty when he threatens to break every bone in victim’s body if -victim reports sexual abuse); State v. Lamar, 474 N.W.2d 1, 3 (Minn.App.1991) (affirming upward dura-tional departure in sentence where offender made death threat after rape), review denied (Minn. Sept. 13, 1991); State v. Hines, 343 N.W.2d 869, 872-73 (Minn.App.1984) (threats of death and the cutting off victim’s finger were particularly cruel); State v. Garcia, 302 N.…
discussed Cited as authority (rule) Hutchinson v. State
Minn. · 2004 · confidence medium
In State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981), this court’s first sentencing guidelines decision, we stated that a plea agreement attempting to limit sentence duration did not create a “substantial and compelling circumstance” justifying a departure from the guidelines.
discussed Cited as authority (rule) Taylor v. State (2×)
Minn. · 2003 · confidence medium
Minnesota Sentencing Guidelines IV, V (2002). [3] "Underlying the [g]uidelines is the notion that the purposes of the law will not be served if judges fail to follow the [g]uidelines in the `general' case." State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) Asfaha v. State
Minn. · 2003 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) overruled on other grounds by State v. Givens, 544 N.W.2d 774 (Minn.1996) 4 .
discussed Cited as authority (rule) State v. Lindsey
Minn. Ct. App. · 2002 · confidence medium
Sentencing courts should use the presumptive sentence from the sentencing guidelines unless the particular case involves “substantial and compelling circumstances.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981); Minn. Sent.
discussed Cited as authority (rule) State v. Thao (2×)
Minn. · 2002 · confidence medium
The decision to depart from a presumptive sentence under the Minnesota Sentencing Guidelines is within the district court’s discretion, see Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981), but when a district court departs from the presumptive sentence, it must articulate “substantial and compelling reasons” justifying the departure, Minnesota Sentencing Guidelines II.D; see State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999).
discussed Cited as authority (rule) State v. Simmons
Minn. Ct. App. · 2002 · confidence medium
A sentencing court “shall use the presumptive sentence unless the individual case involves substantial and compelling circumstances.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (quotation omitted).
discussed Cited as authority (rule) State v. Schmit (2×) also: Cited "see"
Minn. · 1999 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Munger
Minn. Ct. App. · 1999 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
discussed Cited as authority (rule) In re the Personal Restraint of Breedlove
Wash. · 1999 · confidence medium
As our majority concludes a stipulation equates to a substantial and compelling reason for imposing an exceptional sentence, Majority at 309, it is interesting to note the Minnesota court held “an attempt ‘by the parties to limit sentence duration does not create a “substantial and compelling circumstance” which may be relied upon as justifying a departure from the Guidelines.’ ” Givens, 544 N.W.2d at 777 (quoting State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1991), overruled on other grounds by Givens, 544 N.W.2d at 777 n.4). 7 The majority fails to credit the distinction between th…
cited Cited as authority (rule) State v. Behl
Minn. Ct. App. · 1998 · confidence medium
State v. Givens, 544 N.W.2d 774, 776 (Minn.1996) (citing State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981)).
cited Cited as authority (rule) State v. Folkers
Minn. Ct. App. · 1997 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) Rairdon v. State
Minn. · 1996 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981); Williams v. State, 361 N.W.2d 840, 844 (Minn.1985).
discussed Cited as authority (rule) State v. Butterfield
Minn. Ct. App. · 1996 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981), overruled in part by State v. Givens, 544 N.W.2d 774 , 777 n. 4 (Minn.1996) (holding that defendant may waive right to be sentenced under guidelines).
cited Cited as authority (rule) State v. Evenson
Minn. Ct. App. · 1996 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Esler
Minn. Ct. App. · 1996 · confidence medium
State v. Davis, 540 N.W.2d 88, 91 (Minn.App.1995) (citing State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981)), review denied (Minn. Jan. 31,1996).
cited Cited as authority (rule) State v. Behl
Minn. Ct. App. · 1996 · confidence medium
State v. Davis, 540 N.W.2d 88, 91 (Minn.App.1995) (citing State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981)).
cited Cited as authority (rule) State v. VanZee
Minn. Ct. App. · 1996 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Sebasky
Minn. Ct. App. · 1996 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
cited Cited as authority (rule) State v. Murphy
Minn. · 1996 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
examined Cited as authority (rule) State v. Davis (3×) also: Cited "see"
Minn. Ct. App. · 1996 · confidence medium
Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990) (reviewing evidentiary rulings for an abuse of discretion or error of law); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (reviewing de novo a trial court’s application of the sentencing guidelines and affirming a sentencing departure, based in part on proper considerations, because the trial court did not clearly abuse its discretion).
cited Cited as authority (rule) State v. Smith
Minn. · 1996 · confidence medium
Guidelines H.D.; State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) Perkins v. State
Minn. Ct. App. · 1995 · confidence medium
Guidelines II.D; State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Davis
Minn. Ct. App. · 1995 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
discussed Cited as authority (rule) State v. Favela (2×)
Kan. Ct. App. · 1995 · confidence medium
According to the Minnesota Supreme Court, “[t]he trial court has broad discretion in deciding whether to depart from the sentencing guidelines, State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), but such a decision must be supported by ‘substantial and compelling’ circumstances.
cited Cited as authority (rule) State v. Bauerly
Minn. Ct. App. · 1994 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Anderson
Minn. Ct. App. · 1994 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Sejnoha
Minn. Ct. App. · 1994 · confidence medium
State v. Gar cia, 302 N.W.2d 643, 647 (Minn.1981); State v. Dokken, 487 N.W.2d 914, 916 (Minn.App.), pet. for rev. denied (Minn. Sept. 30, 1992).
cited Cited as authority (rule) State v. Bates
Minn. Ct. App. · 1993 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Halvorson
Minn. Ct. App. · 1993 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Lonergan
Minn. Ct. App. · 1993 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Christopherson
Minn. Ct. App. · 1993 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Rachuy
Minn. Ct. App. · 1993 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
cited Cited as authority (rule) State v. Lee
Minn. · 1992 · confidence medium
The guidelines sentence must be imposed unless there are “substantial and compelling circumstances.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
discussed Cited as authority (rule) State v. Dokken (2×)
Minn. Ct. App. · 1992 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981).
discussed Cited as authority (rule) State v. Allen
Minn. Ct. App. · 1992 · confidence medium
Although the trial court generally applies the presumptive sentence, the court has discretion to depart when the offense involves “substantial and compelling circumstances.” State v. Garcia, 302 N.W.2d 643, 646 (Minn.1981).
discussed Cited as authority (rule) State v. Herrmann
Minn. Ct. App. · 1992 · confidence medium
Because these purposes will not be achieved if judges fail to follow the guidelines in the “general” case, a sentencing court should use the presumptive sentence unless the particular case involves “substantial and compelling circumstances.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981); Minn. Sent.
discussed Cited as authority (rule) State v. Pearson (2×)
Minn. Ct. App. · 1991 · confidence medium
State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981); see State v. Anderson, 356 N.W.2d at 454 (if record supports findings that substantial and compelling circumstances exist, appellate court will not modify departure unless it has strong feeling sentence is disproportionate).
discussed Cited as authority (rule) State v. Larkins (2×)
Minn. Ct. App. · 1991 · confidence medium
It denied the motion, and in a memorandum incorporated into its order the trial court acknowledged that under State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981), a departure cannot be based solely upon a plea agreement. 1 However, it noted that under Williams v. State, 361 N.W.2d 840, 844 (Minn.1985), a departure can be affirmed if sufficient evidence exists in the record.
Retrieving the full opinion text from the archive…
STATE of Minnesota, Respondent,
v.
Dale Gene GARCIA, Appellant
52061.
Supreme Court of Minnesota.
Feb 13, 1981.
302 N.W.2d 643
William E. Falvey, Ramsey County Public Defender, St. Paul, for appellant., Warren Spannaus, Atty. Gen., Thomas W. Foley, County Atty. and Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
Sheran.
Cited by 171 opinions  |  Published
SHERAN, Chief Justice.

This is an appeal, pursuant to Minn.Stat. § 244.11 (1980), permitting appellate review[*645] of sentences in criminal cases, from a judgment of conviction of unauthorized use and kidnapping. The convictions were based on negotiated guilty pleas. The sentences which defendant is serving are concurrent prison sentences of 1 year and 1 day for the unauthorized use and 45 months for the kidnapping. The sentencing court departed from the Sentencing Guidelines in refusing to stay execution of the sentences and in setting the length of the sentence for the kidnapping. The issue on appeal is whether the court clearly abused its discretion in departing from the Guidelines. We hold that the court did not clearly abuse its discretion, and we therefore affirm.

Defendant, age 27 at the time, was arrested on May 21, 1980, shortly after he took a van belonging to another person, and he was subsequently charged with unauthorized use.

On June 17, 1980, defendant stopped a young woman leaving a discotheque in downtown St. Paul and, threatening to use a pistol, which he said he had in his pocket, forced her to accompany him in her car. Defendant then spent the next 2 hours terrorizing her and forcing her to have sexual relations (both vaginal intercourse and fellatio) with him. While the defendant was outside the car after one of the sexual acts, the victim locked the car doors and drove off.

On June 20, 1980, the woman positively identified defendant’s picture as being the picture of the man who kidnapped her and raped her.

On July 2, 1980, defendant appeared in district court and entered a guilty plea to the unauthorized-use charge. The negotiated plea involved dismissing a second charge of unauthorized use and specified a limit of 1 year and 1 day. The trial court ordered a presentence investigation.

On July 9, 1980, while awaiting sentence, defendant was arrested and charged with violating drug laws.

A lineup was held on July 11 and defendant was identified by the victim of the kidnapping and rape.

On September 30, 1980, defendant appeared in district court and pled guilty to kidnapping. Minn.Stat. § 609.25, subd. 1(2), subd. 2(1) (1980). Defendant testimonially admitted committing not only the kidnapping but also the sexual acts. The plea negotiation specified that (a) the charge of criminal sexual conduct in the first degree and the drug charges would be dismissed and (b) the trial court, if it chose to depart from the presumptive sentence established by the Sentencing Guidelines, would be limited to imposing a maximum term of 50 months in prison.

Defendant appeared in district court for sentencing on October 3, 1980. The presumptive sentence for the unauthorized-use conviction, based on the severity level of the crime (level 1) and defendant’s criminal history score (1, based on defendant’s extensive record of misdemeanors and gross misdemeanors), was 1 year and 1 day with execution stayed. The presumptive sentence for the kidnapping, based on the severity level (6) and the criminal history score (1), was 26 months with execution stayed.

The recommendation of the person who prepared the presentence investigation report for the unauthorized-use conviction was that defendant be sentenced to 1 year and 1 day, that execution be stayed but that defendant serve the term in the workhouse because defendant was an “extremely poor candidate” for straight probation. With respect to the kidnapping conviction, the same officer recommended that the court depart from the presumptive sentence and impose and execute a limited maximum sentence of 50 months in prison (i. e., the maximum permitted pursuant to the plea negotiation), to run concurrently with the sentence for unauthorized use.

In its written departure report the sentencing court stated as follows:

This Court in imposing sentence on the defendant, Dale Gene Garcia, has departed from the presumptive sentence in that Mr. Garcia was incarcerated rather than placed on probation, and he was committed to the Commissioner of Corrections for 45 months rather than the presumptive sentence of 26 months.
[*646] The Court found that this 28-year old defendant had a chemical dependency problem which he has not been able to manage. He has no stable family life and a horrendous employment record. His criminal history indicates a conviction for the unauthorized use of a motor vehicle and the commission of these latter offenses while he was awaiting sentencing for the charge of unauthorized use of a motor vehicle. That indicates a rather brazen and blatant attitude with respect to his conduct and the rights of the citizens of this community.
The history of this crime would indicate that for an entire day the defendant participated in the excessive use of alcohol and drugs to a point where he presented a menace to the people of this community. He kidnapped an innocent female, subjected her to terror for approximately two hours, violated her sexually on two occasions, causing her to allege that she was physically hurt by the second incident. His wanton and callous attitude in subjecting her to oral sex indicates to this Court that Mr. Garcia presents a threat to the people of this community. The record would indicate that except for the escape by the victim the possibility of further sexual and physical abuse was very apparent.
Further, this defendant indicated that he appreciated that he must be punished for this offense and expected to and was prepared to serve some time in an institution. The presentence investigation was replete with findings that Mr. Garcia had not benefited or taken advantage of opportunities previously given to him while on probation. His total record allowed only one conclusion: That he must be incarcerated to protect the citizens of this community, and that that incarceration must be for a long enough period of time so that he could participate in programs designed to assist him with his problem of chemical dependency and antisocial behavior.

The stated purposes of the Guidelines are to “reduce sentencing disparity and insure that sanctions following conviction of a felony are proportional to the severity of the offense of conviction and the extent of the offender's criminal history.” As summarized in the Statement of Purpose in Principles (Part I of the Guidelines), equity in sentencing requires “(a) that convicted felons similar with respect to relevant sentencing criteria ought to receive similar sanctions, and (b) that convicted felons substantially different from a typical case with respect to relevant criteria ought to receive different sanctions.” Principles embodied in the Guidelines include (1) the principle that “sentencing should be neutral with respect to the race, gender, social, or economic status of convicted felons,” (2) the principle that commitment to the Commissioner of Corrections is not the only available sanction and that “Development of a rational and consistent sentencing policy requires that the severity of sanctions increase in direct proportion to increases in the severity of criminal offenses and the severity of criminal histories of convicted felons,” (3) the principle that, because the capacities of prisons and jails are finite, “use of incarcerative sanctions should be limited to those convicted of more serious offenses or those who have longer criminal histories” and “sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence,” and (4) the principle that “While the Sentencing Guidelines are advisory to the sentencing judge, departures from the presumptive sentences established in the Guidelines should be made only when substantial and compelling circumstances exist.”

In order to achieve the stated purpose of the Guidelines and remain true to the underlying principles, the Commission devised a “Sentencing Guidelines Grid.” After determining a “Criminal History Score” and the “Severity Level” of the conviction offense, the judge is able to determine what is the “Presumptive Sentence.” For some less serious crimes the presumptive sentence, regardless of the defendant’s criminal history score, will be stayed; for certain more serious crimes, regardless of the crimi[*647] nal history score, the presumptive sentence is executed. Then there are a number of crimes for which the criminal history score determines whether the presumptive sentence is stayed or executed.

Underlying the Guidelines is the notion that the purposes of the law will not be served if judges fail to follow the Guidelines in the “general” case. Thus, in Part II-D of the Guidelines the Commission states that the judge “shall” use the presumptive sentence “unless the individual case involves substantial and compelling circumstances.” The Guidelines state that when such circumstances are present, the judge “may” depart from either or both the presumptive disposition or the presumptive duration; when the judge does so, he must provide written reasons justifying his decision. The Guidelines then list (1) factors that “should not” be used for reasons for departure and (2) “nonexclusive” aggravating and mitigating factors that “may” be used as reasons for departure.

In this case the sentencing court properly did not rely on the term of the negotiated plea relating to sentence as a factor in its decision to depart. An attempt such as this by the parties to limit sentence duration does not create a “substantial and compelling circumstance” which may be relied upon as justifying a departure from the Guidelines. Only the court, acting in accordance with the Guidelines, and not the parties, has the authority to determine the appropriate sentence.

In summarizing the reasons justifying departure, the sentencing court incorrectly stated that defendant committed the kidnapping while awaiting sentencing on the unauthorized-use conviction; actually, the defendant had not yet entered his guilty plea to unauthorized use. The trial court also apparently relied in part on factors which the Guidelines state should not be relied upon as reasons for departure, e. g., employment factors and social factors. However, we believe that there were aggravating factors on which the trial court properly and primarily relied and that the trial court did not clearly abuse its discretion in deciding to depart. First, defendant treated the victim of the kidnapping, a young woman, in a particularly cruel way, driving her around for 2 hours in a wild fashion and subjecting her to psychological terror and gross physical and sexual abuse. Recognizing and relying on this does not in our opinion amount to improper reliance on offenses of which the defendant was not convicted. We believe that the sentencing court in sentencing on a kidnapping conviction should be permitted to consider what happened during the kidnapping. Second, we believe that the sentencing court was justified in considering the fact that defendant has a chemical dependency problem and that he had not taken advantage of treatment programs while on probation in the past but instead had demonstrated that he was an extremely poor candidate for probation. In summary, we believe that there were “substantial and compelling circumstances” justifying departure and that the trial court did not clearly abuse its discretion in deciding to depart from the presumptive sentence.

Affirmed.