Opinion
No. C1-00-1159.
Filed November 21, 2000.
Appeal from the District Court, Kanabec County, File No. K9-98-571.
Mike Hatch, Attorney General, and Norman J. Loren, Kanabec County Attorney, (for respondent)
John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant State Public Defender, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Curtis Cal Callender challenges the district court's decision to revoke his probation, contending that there was insufficient evidence on the record to warrant revocation. We reverse and remand.
FACTS
On December 29, 1998, appellant pleaded guilty to charges of harassing conduct toward his former girlfriend, Marilynn Crow. The sentencing court stayed imposition of sentence and placed appellant on probation, with conditions that he serve 60 days in jail, pay a fine and restitution, have no further contact with Crow, undergo psychological and chemical dependency evaluations, and not consume alcoholic beverages, among others. At his first probation revocation hearing, appellant admitted that he had violated conditions of his probation by contacting Crow and by consuming alcohol. The court revoked the stay of imposition and sentenced appellant to 18 months in prison, but stayed execution of the sentence on the condition that appellant serve 90 days in jail, that he abide by the prior conditions of probation, and that he complete anger management and chemical dependency treatment programs.
Several months later, appellant's probation officer reported that appellant again had violated conditions of his probation by (1) making telephone contact with Crow, (2) failing to complete anger management counseling, and (3) failing to make fine and restitution payments. Witnesses for the state testified as to the first two violations. Regarding the third, appellant's probation officer testified that appellant had been terminated from his job because he persistently failed to show up for work. Appellant did not disclose his termination to the probation officer; he did tell the probation officer that he had been making monthly restitution payments when, in fact, he had not been making them. The probation officer admitted that he was not aware of appellant's personal financial situation.
The district court found that appellant had violated several conditions of his probation as described in the report of the probation officer and further held that revocation of probation was appropriate because the need for confinement outweighed the policies favoring probation. Accordingly, the district court revoked appellant's probation and executed his 18-month prison sentence.
DECISION
A trial court may revoke probation if, after a summary hearing, the trial court finds that there exists clear and convincing evidence that the probationer has violated the conditions of probation. Minn.R.Crim.P. 27.04, subd. 3(3); State v. Ehmke, 400 N.W.2d 839, 840 (Minn.App. 1987). The trial court must (1) designate the specific condition or conditions that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).
The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.
Id. at 249-50.
It is well established that a trial court may not revoke a stay for nonpayment of a fine without expressly finding that the probationer was capable of paying the fine and willfully refused to do so. See State v. Branch, 431 N.W.2d 585, 587 (Minn.App. 1988). Here, the district court based its decision to revoke appellant's probation, in part, on the assertion that appellant willfully failed to pay his fine and make restitution payments. Yet no specific evidence of appellant's financial situation, other than generalities concerning his employment status, appears on the record. The evidence on the record is insufficient to support revocation based on failure to pay restitution. See State v. Fritsche, 402 N.W.2d 197, 201 (Minn.App. 1987) (holding that a trial court abused its discretion in revoking probation for failure to pay restitution given unrefuted reports that the probationer could not pay more than he did).
The district court did make findings on the two other grounds for its decision, namely, appellant's telephone contact with Crow and his failure to complete the anger management program. We acknowledge that these alone would be sufficient to support a revocation; but we do not know whether the district court would have revoked probation if the nonpayment of the fine and restitution were not one of the grounds.
Accordingly, we reverse and remand to the district court for further consideration of the revocation of appellant's probation, including findings of fact on appellant's willful nonpayment of the fine and restitution if the district court decides to use that as a basis for revocation of appellant's probation. The district court may, or may not, in its discretion, receive additional evidence.