(dissenting).
I must respectfully dissent.
I concur with the majority opinion that under the Minnesota Sentencing Guidelines defendant’s long criminal history and his previous record of failures on probation are not grounds to be considered by a trial judge in making a durational departure at the time of sentencing. However, in my view, I cannot distinguish the durational departure in this case from those approved by this court in State v. Rott, 318 N.W.2d 574 (Minn.1981), and in State v. Brigger, 316 N.W.2d 512 (Minn.1982). In both of those eases, the charges arose out of theft by check or by forgery. The majority opinion emphasizes that in those cases the victims of the underlying course of conduct had been identified and that it had been established that the amounts taken by the schemes exceeded the maximum amount for the offenses to which the defendant had pleaded guilty. In this case, the defendant admitted that he had been involved in many similar offenses and that he stole merchandise on “order.” At the time of this plea, defendant had similar charges pending against him for similar crimes in Hennepin County. I conclude that there was a factual basis for the departure. I suggest we attempt to make too fine a distinction when we affirm departures on the ground the victims have been identified and the approximate amounts stolen verified, but refuse to approve departures when the sentencing court has admission from the defendant of his modus operandi, that he had been involved in many similar instances, and when he had been charged with apparently the same sort of crimes in another county.
Moreover, I am not convinced this case is otherwise distinguishable from Rott and Brigger. The majority attempts to distinguish those cases by saying Gross committed this crime by “physical means” whereas in the two cited cases the perpetrators used “other than physical means.” Minnesota Sentencing Guidelines and Commentary, II. D.2.b.(4) (1982). Slipping garments into a bag concealed under a coat to me is no more “physical means” than committing theft by forging and passing checks. Both involve “physical means.” I conclude defendant did commit an economic offense — and that it was major because of his modus operandi. Therefore, I would affirm the trial court’s sentencing departure.