(dissenting).
I would affirm the sentence imposed by the trial judge subject to the limitation set forth in State v. Evans, 311 N.W.2d 481 (Minn.1981). The Sentencing Guidelines specifically provide that a judge may depart from the grid for a case involving “substantial and compelling circumstances.” Minnesota Sentencing Guidelines and Commentary, 1.4. & II.D. (1980). I would hold that such circumstances exist here.
Prior to the new Guidelines, the sentencing judge had great latitude in considering a convicted person’s past, including the person’s overall conduct, prior convictions, and information collected in a presentencing report. I do not believe that the legislature intended to limit a judge to considering only prior convictions. Here, the trial judge was in a unique position to review the defendant’s entire record and to decide whether a tougher sentence should be imposed. Below, I have set forth in full the trial court’s reasons for departure. I believe they are more than sufficient to justify the sentence.
This defendant appears to the Court to be a man who lives outside of the law. He was 19 years of age when convicted for engaging in prostitution, and there is strong evidence that he is presently in that business in more than one state. Although on probation for possession of a pistol without a permit, the defendant had two loaded guns in his 1976 Cadillac at the time of his arrest, in addition to the cocaine found in several locations in the vehicle. He has had no valid driver’s license since July, 1980 and yet by his own admission continues to drive in Minnesota and elsewhere.
The defendant has rejected the Court’s attempt to have him participate in the program at Bremer House as an alternative to a prison sentence. The Court is informed that he has had no contact with any probation officer in Hennepin County or in the State of Iowa since his sentence in Hennepin County in October, 1980 for possession of a pistol without a permit. It would therefore appear that any probation in this case would be meaningless to the defendant.
Based upon the Court’s observation of the defendant’s demeanor in the courtroom, his statements and apparent lack of candor in the presentence report, his background, and the nature of these offenses, in the opinion of the Court there are substantial and compelling circumstances which required the Court to depart from the sentencing guidelines.
The defendant is in great need of rehabilitative treatment, but there are no adequate facilities in the community for his particular case. Under these compelling circumstances a prison sentence must be imposed by the Court for the protection of the public for sufficient time to allow rehabilitation and change in the defendant.