The majority interprets Minnesota’s sentencing system in a manner that effectively eliminates the well-established aggravating sentencing factors of particular cruelty and zone of privacy. The majority’s interpretation is inconsistent with our precedent and it has significant and adverse effects on the criminal justice system. I respectfully dissent.
This action arises from the brutal beating and robbery of a 67-year victim, G.W., in his home. The record reflects that on November 6, 2005, a young woman came to G.W.’s home in the morning hours, claiming car trouble and asking to use his telephone. G.W. agreed to help the woman, took her into his home, and let her use the telephone. After using the phone, the young woman left, only to return again that evening.
When G.W. saw the same young woman at his door, he opened it only to be met by Jackson, who “rushed in and cracked [G.W.] on the left eye” with what appeared to be a handgun. Jackson proceeded to hit G.W. on the right side of the forehead and the jaw, and then more times on the head. After G.W. fell to the floor, Jackson knelt on his back, took his wallet, and directed that the woman retrieve guns that G.W. kept in his home.
As a result of the beating, G.W. suffered a severe laceration on the right side of his head and the orbital socket of his left eye was “blown out,” meaning that Jackson fractured G.W.’s eye socket as well as the bones directly underneath his left eye. When the police arrived, they found G.W. bleeding profusely from the wound on his head, and he had to be taken to the hospital by ambulance.
Based on the jury’s factual findings that Jackson inflicted multiple blows to G.W.’s head, fractured the orbital socket around his left eye, and committed the robbery inside G.W.’s home, the district court imposed an aggravated sentencing departure of 210 months. At the sentencing hearing, the court articulated that it was imposing an aggravated departure because “the crime was committed within [G.W.’s] zone of privacy” and because of “the injuries inflicted.” The majority holds that the district court erred. I disagree. The abuse of discretion standard controls our review of a district court’s decision to impose a sentencing departure. Taylor v. State, 670 N.W.2d 584, 588 (Minn.2003). A sentencing departure must be justified by “substantial and compelling circumstances” in the record that make the facts in the case different from the presumptive sentence, and we have held that it is generally proper for courts to consider that the defendant committed the offense in a particularly serious way in imposing an upward departure. Id. Because the upward departure was not an abuse of discretion, I would uphold the sentence.
I.
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 *362rule 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 departure); see also Taylor, 670 N.W.2d at 588 (noting that a sentencing departure may be based on multiple acts of uncharged sexual penetration, which were part of the offense for which the defendant was charged and convicted); State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983) (explaining that a court may rely on the facts underlying a particular offense as a basis for concluding that the offense of which the defendant was convicted was committed in “a particularly serious or cruel way”); State v. Rott, 313 N.W.2d 574, 575 (Minn.1981) (explaining that the district court could base its upward durational sentencing departure on uncharged offenses that the defendant admitted committing); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (holding that the district court could base its upward durational sentencing departure on conduct which indicated that the victim had been treated with particular cruelty).
Notwithstanding the precedent discussed above, the majority holds that it was improper for the district court to consider Jackson’s decision to commit the robbery (the offense of conviction) in a manner that inflicted gratuitous pain on the victim and in a way that invaded the victim’s zone of privacy because this conduct supports the uncharged offenses of third-degree assault and burglary. I disagree.
In my view, the departure in this case is consistent with the double upward departure we affirmed in State v. Winchell, 363 N.W.2d 747 (Minn.1985). In that case, the defendant pleaded guilty to aggravated robbery in exchange for the dismissal of other charges, including burglary and assault with a dangerous weapon. Id. at 748. The district court imposed a double upward departure based in part on the fact that the defendant “ ‘gratuitously inflicted particular cruelty on the victims during the course’ ” of the robbery, and the fact that the robbery “‘was committed in the privacy and security of the victim’s own home.’” Id. at 749. We did not prohibit the court from departing even though the aggravating factors also supported other crimes. To the contrary, we affirmed the sentence because the departure was based on the “facts relating to the conduct underlying the offense to which the defendant pleaded guilty.” Id. at 750. The majority does not articulate any sound basis for a decision to depart from this precedent. I would follow our precedent and affirm.1
*363The majority’s decision to depart from our precedent also effectively eliminates long-standing and well-accepted departure factors. I turn to these factors, particular cruelty and zone of privacy, next.
A. Particular Cruelty
The Guidelines provide that there may be departures from presumptive sentences where “there exist identifiable, substantial, and compelling circumstances.” Minn. Sent Guidelines II.D. While the list of aggravating factors does not purport to be exhaustive, importantly for purposes of this case, one factor specifically listed as a basis for upward departure is where “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.b(2).2 It is well established that gratuitous infliction of pain qualifies as “particular cruelty.” State v. Smith, 541 N.W.2d 584, 590 (Minn.1996) (upholding an upward sentencing departure where the manner in which the defendant committed the robbery included punching the victim into unconsciousness and then kicking him as he lay on the ground); State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981). Consequently, the district court did not abuse its discretion when it concluded that Jackson’s gratuitous infliction of pain justified an upward durational sentencing departure, because this conduct demonstrated that Jackson committed the robbery in a particularly cruel way.3
Relying on State v. Misquadace, 644 N.W.2d 65 (Minn.2002), the majority asserts that “[a] departure cannot be based on uncharged criminal conduct.” But consideration of evidence pointing to the defendant’s guilt of some other uncharged offense is only improper if that evidence “does not support the conclusion that the defendant committed the offense in question in a particularly serious way.” Cox, 343 N.W.2d at 643.
Moreover, Misquadace does not support the majority’s result. In Misquadace, the issue was whether a plea agreement, standing alone, could provide a substantial and compelling justification for departure. 644 N.W.2d at 69. Citing Minn. Sent. *364Guidelines cmt. II.A.01 (stating that “the offense of conviction is the standard from which to determine severity” and that “departures from the guidelines should not be permitted for elements of offender behavior not within the statutory definition of the offense of conviction” because “serious legal and ethical questions would be raised if punishment were to be determined on the basis of alleged, but unproven, behavior, and prosecutors and defenders would be less accountable in plea negotiation”), we explained that departures must be based on the offense of conviction. Id. at 68. We further explained that “[t]he question presented to the sentencing court when considering a departure is whether the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.” Id. (citing Cox, 343 N.W.2d at 643). Ultimately, we concluded that a plea agreement standing alone could not be used to depart because it does not demonstrate that the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question. Id. at 71.
Nothing we said in Misquadace called into question the well-established principle set forth above that the district court is permitted to depart based on the way in which the offense is committed. In addition, the concerns regarding plea negotiations at issue in Misquadace and “alleged, but unproven, behavior” articulated in Minn. Sent. Guidelines cmt. II.A.01 are not implicated in this case because Jackson did not plead guilty and the sentencing jury found that the State proved the aggravating sentencing factors beyond a reasonable doubt.
The majority also relies on State v. Norregaard, 384 N.W.2d 449, 450 (Minn.1986), and asserts that had the State charged Jackson with third-degree assault, it would have been improper for the district court to consider Jackson’s decision to gratuitously inflict substantial bodily harm on the victim. But by holding that it is improper for a district court to consider the beating Jackson inflicted on G.W. when such conduct is either uncharged, as in this case, or charged, as in Norregaard, the majority has effectively eliminated the aggravating factor of particular cruelty, which is expressly recognized in Minn. Sent. Guidelines II.D.b(2).4
Every time a defendant commits the offense of conviction in a manner that gratuitously inflicts bodily harm, the State can arguably charge the defendant with some form of assault. Minn.Stat. §§ 609.221-24 (2006). According to the majority, if the State fails to charge the defendant with assault, the sentencing court cannot consider the defendant’s gratuitous infliction of physical injury. Yet, if the State charges and convicts the defendant of as*365sault, the majority asserts that our decision in Norregaard and Minn.Stat. § 609.035 (2006) prohibit the sentencing court from imposing punishment based on the assault conviction because it arose out of the same behavioral incident. Thus, there is no way under the majority’s new rule for a district court to factor a violent beating into a sentencing decision. In my view, this new rule writes the “particular cruelty” factor out of the Guidelines. But in the absence of a constitutional challenge, we have no authority to rewrite the Guidelines. See State v. Shattuck, 704 N.W.2d 131, 146 (Minn.2005) (severing Guidelines provision that was determined to be unconstitutional).5
Moreover, Norregaard does not compel the rule the majority writes today, and I would not interpret Norregaard in a manner that effectively rewrites the Guidelines. In Norregaard, the State charged the defendant with both aggravated robbery, Minn.Stat. § 609.245 (2006) (robbery accompanied by infliction of “bodily harm”), and third-degree assault, Minn.Stat. § 609.223 (2006) (assault involving infliction of “substantial bodily harm”). 384 N.W.2d at 449. After convicting the defendant of both offenses, the district court imposed two separate sentences. Id. We held that imposition of two separate sentences violated the statutory prohibition against multiple punishments contained in MinmStat. § 609.035 (2006) because “petitioner was convicted of the more serious form of robbery and received additional punishment for the robbery because it was a robbery accompanied by the infliction of bodily harm.” Norregaard, 384 N.W.2d at 450; see also State v. Williams, 608 N.W.2d 837, 841 (Minn.2000) (explaining that Minn.Stat. § 609.035 protects defendants from multiple sentences for conduct arising out of the same behavioral incident).
The result in Norregaard was dictated not by the Guidelines, but by section 609.035. 384 N.W.2d at 450. In this case, by contrast, the legislative decision reflected in section 609.035 — that an offender may not be sentenced for separate crimes that arise out of the same behavioral incident — is not at issue. Jackson did not receive two sentences. He received one sentence based on the way in which he committed one crime, aggravated robbery.6
The majority’s conclusion that section 609.035 prohibits the beating from being used to aggravate the sentence of aggravated robbery would mean that the legislature intended that statute to nullify the particular cruelty departure provision in the Guidelines. The legislature did not provide for the nullification of the particular cruelty departure ground in the text of section 609.035. And our implication of such a nullification would be inconsistent with our obligation to give effect to all legislative enactments. See Owens v. Federated Mut. Implement & Hardware Ins., 328 N.W.2d 162, 164 (Minn.1983); see also Minn.Stat. § 645.26, subd. 1 (2006) (“When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both.”). Rather than reading section 609.035 to nullify the “particular cruelty” aggravating factor, I would read the statute according to its plain terms as prohibiting multiple punishments, i.e., multiple sentences, for separate crimes committed *366as part of the same behavior incident.7 Such an interpretation gives effect to both the statute and the departure provision in the Guidelines.
B. Zone of Privacy
The majority’s analysis of the zone of privacy factor is also flawed. It is well established that departures from the presumptive sentence are appropriate where a defendant invades the zone of privacy that surrounds the victim’s home. See State v. Blanche, 696 N.W.2d 351, 379 (Minn.2005); Winchell, 363 N.W.2d at 750. But every time a defendant commits a crime within a victim’s zone of privacy, the State can arguably charge the defendant with burglary. Minn.Stat. § 609.582 (2006). While the majority contends that it is not treading onto the prosecutor’s discretion in charging, it seems to me that is precisely where the majority is going. And, as the court of appeals wisely noted, it is not for courts “to supplant the prosecutor’s charging function,” in the absence of evidence of “deliberate discrimination.” State v. Jackson, 2007 WL 2245594, at *7 (Minn.App. Aug.7, 2007) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Herme, 298 N.W.2d 454, 455 (Minn.1980)).8
The majority also seems to conclude that a departure is not appropriate based on the invasion of the zone of privacy because “punishment is allowed for both the burglary and the crime committed in the dwelling,” and because the aggravated sentence imposed in this case is greater than the sentence that could have been imposed had Jackson been sentenced on both burglary and aggravated robbery. The majority argues “that the guidelines do not contemplate enhanced sentences based on uncharged criminal conduct that would be far greater than what would otherwise be permitted based on charged criminal conduct.” Had Jackson been given consecutive sentences, assuming he was charged and convicted with aggravated robbery and burglary, the presumptive sentence would have been 162 months. Because 210 months is apparently “far greater” than 162 months, the majority seemingly concludes that the district court erred. But the 162-month sentence is not an aggravated sentence; it is the presumptive sentence. The majority’s analysis does not take into account that even in the hypothetical it poses the State could seek a departure based on the way in which the crimes were committed. Thus, in my view, it is not proper to conclude that an aggravated sentence is unlawful because it exceeds the presumptive sentence. If that were the law, there would no such thing as an aggravated sentence, and again this would write provisions out of the Guidelines, something that it is not within the province of this court to do.
II.
In the interests of judicial economy, the majority considers Jackson’s argument that this court should reconsider the Evans rule, which limits upward durational sentencing departures to twice the presumptive sentence unless there are “unusually compelling” circumstances. See State v. Evans, 311 N.W.2d 481, 483 (Minn.1981). After describing the legislature’s recent expansion of the presumptive sentencing ranges, the majority concludes that the Evans rule may be “in need of *367serious reevaluation,” but that the continuing efficacy of the rule is a question which should be addressed, in the first instance, by the Minnesota Sentencing Guidelines Commission. We created the Evans rule through the exercise of our supervisory powers. To suggest that the Commission has the authority to modify this rule raises serious separation of powers issues. Although I conclude that there is no need to reevaluate the Evans rule, it is clear that questions regarding the continuing efficacy of this rule should be answered by this court and this court alone.
. The majority contends that it is not creating a new rule and attempts to find support for this conclusion in a law review article's position about what the Guidelines provide. But the article the majority cites specifically departs from the rule the majority writes today by noting that courts "could depart on the basis of non-charged offenses if the defendant admitted them on the record.” Dale G. Parent & Richard S. Frase, Why Minnesota Will Weather Blakely’s Blast, 18 Fed. Sent’g Rep. 12, 2005 WL 4001178, at *5 (2005) (citing State v. Rott, 313 N.W.2d 574, 575 (Minn.1981), and State v. Garcia, 302 N.W.2d 643 (Minn.1981)). And perhaps more importantly, the article cites State v. Brusven, 327 N.W.2d 591 (Minn.1982), as one of the authorities for the assertion that judges could "not enhance a sentence based on offenses for which the defendant had not been charged or for which the charges had been dropped.” Parent & Frase, supra, 2005 WL 4001178, at *5. In Brusven, however, we acknowledged the rule of law I apply here and the one that the majority is now writing out of existence. Id. at 593 (disapproving of sentencing court's departure based not on offense of conviction but based on a separate offense that had been dismissed and distinguishing that situation from one where "the facts underlying a par*363ticular offense” support the conclusion "that the offense of which the defendant was convicted was committed in a particularly cruel way”).
. The legislature may modify the Guidelines, but it has taken no action to cast doubt on the Guidelines' inclusion of the particular cruelty departure ground. See Minn.Stat. § 244.09, subd. 11 (2004) (noting that modifications to the Guidelines shall be submitted annually to the legislature and that such modifications "shall be effective * * * unless the legislature by law provides otherwise”).
. Although the sentencing jury was not specifically asked if Jackson committed the offense with "particular cruelty,” the jury was asked to find facts about the injuries the victim suffered. The district court appropriately used those facts as the basis to depart. See State v. Cox, 343 N.W.2d 641, 645 (Minn.1984) (upholding departure where defendant’s "conduct was a form of gratuitous cruelty which was unjustified within the context of the crime”). The majority seemingly suggests that had the sentencing jury decided that Jackson had committed the aggravated robbery with “particular cruelty,” a departure would have been appropriate in this case. That cannot be so under the rule of law the majority writes today. Even if the question put to the sentencing jury had been phrased "Did Jackson commit the aggravated robbery with particular cruelty,” under the majority’s new rule of law, the district court would not have been able to depart because the underlying conduct at issue — the infliction of the injuries — would still have been conduct that could have been charged as an assault. The phrasing of the question does not dictate the result under the majority's new rule. The fact that the conduct, no matter what the jury calls that conduct, could have been charged as some other offense is why the majority holds that there could be no departure here.
. The majority also cites State v. Simon, 520 N.W.2d 393 (Minn.1994), in support of its proposition that "[a] departure cannot be based on uncharged criminal conduct.” But in Simon, we were concerned with manipulation by the State. Specifically, we noted that the State could have charged the defendant with the "more serious” crime of assault resulting in substantial bodily harm, for which the maximum sentence was 10 years. Id. at 394. The State instead proceeded with a charge of assault with a dangerous weapon, which was punishable by up to 7 years in prison, and then after the defendant pleaded guilty, argued for departure based on the fact that substantial bodily harm was committed as part of the assault. Id. The manipulation at issue in Simon does not exist in this case. Here, the offense the majority contends could have been charged was assault in the third degree, which is a severity level IV offense punishable by up to 5 years in prison, and the offense that was charged and for which sentence was imposed, aggravated robbery in the first degree, was a severity level VIII offense punishable by up to 20 years in prison.
. Jackson does not assert that the "particular cruelty” aggravating factor violates his constitutional rights.
. Jackson was convicted of two counts of aggravated robbery, but consistent with section 609.035, the district court imposed sentence on only one count.
. This reading is consistent with other provisions in the statute wherein exceptions are provided to the prohibition against multiple sentences. See Minn.Stat. § 609.035, subd. 2 (providing for consecutive sentences).
. Jackson makes no claim that the charging decisions at issue in this case were discriminatory.