This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Thomas Joe Sundeen,
Filed August 7, 2001
Isanti County District Court
File No. T5-00-1742
Mike Hatch, State Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jeffrey Edblad, Isanti County Attorney, 555-18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
Lawrence Hammerling, State Public Defender's Office, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hanson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order revoking a stay of adjudication for disorderly conduct, appellant argues that the district court abused its discretion absent clear and convincing evidence of a violation of any probationary condition. We reverse.
In June 2000, appellant Thomas Sundeen was charged with misdemeanor fifth-degree assault. He pleaded guilty to disorderly conduct before the Isanti County district court, which ordered a stay of adjudication for a one-year probationary period. As a condition of his continued probation, the district court ordered Sundeen not to engage in any “same or similar” conduct to that which gave rise to the original charge.
In September 2000, Sundeen was granted a continuance for dismissal on a charge of disorderly conduct in Anoka County. Upon learning of this charge, the Isanti County attorney moved for revocation of the stay of adjudication on the original charge. The Isanti County district court found that, because Sundeen was not acquitted of the Anoka County charge, he had engaged in conduct that violated his probation. The court also found that Sundeen had failed to submit the results of a psychological examination to his probation officer, a condition on which Isanti County had offered to rescind the revocation motion. The court then sentenced Sundeen to 30 days in the county jail on the original charge, with the sentence stayed. This appeal followed.
D E C I S I O N
The district court is accorded broad discretion to determine whether the evidence supports revocation of probation, and this court will reverse only where the district court has abused that discretion. State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984) (citing State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)). To revoke probation, the court must: (1) designate the specific condition or conditions that a probationer violated; (2) find that the violation was intentional and inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Austin, 295 N.W.2d at 250. The court’s finding that a condition of probation has been violated must be based on clear and convincing evidence. Minn. R. Crim. P. 27.04, subd. 3(3).
The district court finding that Sundeen violated his probation by engaging in prohibited conduct was based on the Anoka County charge. Sundeen argues that, because the Anoka County charge resulted in a continuance for dismissal without any admission or finding of guilt, it was insufficient proof that he engaged in prohibited conduct.
The only evidence before the court in Isanti County was the existence of the Anoka County charge. In an affidavit supporting its motion to revoke Sundeen’s probation, the Isanti County attorney stated that Sundeen pleaded guilty to disorderly conduct under the Anoka County charge, but Sundeen denied that he had entered a guilty plea and the Isanti County attorney provided no documents to support his statement. To the contrary, the Anoka County dispositional order on the continuance for dismissal did not record a guilty plea and did not include a finding of guilt. Without some evidence of the conduct that inspired the Anoka County charge, or a plea of guilty or other admission of the conduct by Sundeen, the district court did not have a factual basis on which to find that Sundeen violated his Isanti County probation.
Sundeen also argues that the district court abused its discretion by revoking his probation because he failed to submit the results of the psychological evaluation. Sundeen contends that because this was not a condition of his Isanti County probation, it cannot form the basis of the revocation of that probation. We agree. While the Isanti County attorney offered to rescind its motion for revocation if Sundeen voluntarily submitted the results, and Sundeen’s failure to do so removed any impediment to bringing the motion, this failure cannot be construed as a violation because it was not included as a condition of probation in the order staying adjudication of the original Isanti County charge.