This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed December 14, 2004
Reversed and remanded
Hennepin County District Court
File No. 03009499
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sean M. McGuire, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
The district court revoked the stay of execution of appellant’s sentence in part because he failed to attend a chemical dependency treatment program recommended by his probation officer (the court had instructed appellant to follow the recommendations of his probation officer). Because the district court improperly used a condition of probation imposed by a probation officer to support one of the Austin factors to revoke the stay of execution, we reverse and remand.
Appellant pleaded guilty to one count of first-degree DWI. He was sentenced to a stay of execution and five years’ probation on the conditions that he (1) serve 180 days in the workhouse; (2) refrain from using alcohol; and (3) submit to random urine analyses and breathalyzers. The district court did not order a Rule 25 chemical dependency evaluation but agreed to order one if the supervising probation officer recommended it.
After appellant allegedly violated the terms and conditions of his probation by testing positive for alcohol on three occasions and failed to begin the treatment program recommended by the chemical dependency assessor to whom the probation officer referred him, the district court filed an arrest and detention order. At the revocation hearing, appellant acknowledged using alcohol only once and disputed the two other alleged incidents. The district court, disbelieving appellant’s explanation, found that appellant had used alcohol on at least two occasions, thus violating a condition of his probation, and that he had failed to attend the recommended treatment program. The district court revoked the stay of execution and sentenced appellant to 42 months’ incarceration followed by five years of supervised release. Appellant challenges the revocation.
D E C I S I O N
On review of a district court’s revocation of probation, this court will reverse the decision only if the district court clearly abused its discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). The state must prove a probation violation by clear and convincing evidence. Minn. R. Crim. P. 27.04, subd. 3. When revoking probation, a district court must use the following three-part test: “[(]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.” Austin, 295 N.W.2d at 250.
Following the Austin test, the district court cited the following grounds for revoking appellant’s probation: (1) appellant violated a condition of his probation by using alcohol on at least two occasions; (2) appellant intentionally and inexcusably violated the terms and conditions of his probation by failing to attend the treatment program recommended by a chemical dependency assessor at his Rule 25 evaluation; and (3) the need for incarceration outweighed the policies favoring probation because appellant continued to use alcohol and operate a motor vehicle.
Appellant argues that the district court abused its discretion by revoking his stay of execution because enrolling in treatment was recommended by a probation officer but not formally ordered by the court. When the district court imposed probation, it stated, “I am not going to order a Rule 25 [chemical dependency evaluation]. I am going to leave that up to the supervising probation officer. However, if he thinks it is appropriate, one will be ordered and you will have to follow the recommendations.” Thus, the district court itself did not order appellant to complete a chemical dependency evaluation or to enroll in a treatment program. It deferred those decisions to the probation officer who ordered a Rule 25 evaluation, after which a chemical dependency assessor recommended treatment. But the district court did not issue an order requiring appellant to comply with the recommendation.
When sentencing a defendant, the court must “state the precise terms of the sentence.” Minn. R. Crim. P. 27.03, subd. 4(A). “Determining conditions of probation is exclusively a judicial function that cannot be delegated to executive agencies.” State v. Henderson, 527 N.W.2d 827, 829 (Minn. 1995). While probation officers and chemical dependency assessors, who are agents of executive agencies, can recommend conditions of probation, a violated condition used to support a probation revocation must be a condition imposed by the court. State v. Ornelas, 675 N.W.2d 74, 80 (Minn. 2004). Whether a probationer believes a probation officer’s recommendation is a condition of probation is irrelevant. Id. In cases similar to the instant case, the supreme court has held that violation of a condition imposed by a probation officer, absent an order from the district court, may not support revocation. See, e.g., Ornelas, 675 N.W.2d 74 (condition that the probationer have no contact with individuals under 18 years of age imposed by a probation officer and later ordered by the district court on another sentence but not on the relevant sentence could not support a probation violation); State v. B.Y., 659 N.W.2d 763, 769 (Minn. 2003) (curfew requirement imposed by a juvenile’s probation officer but not part of the district court’s order could not support a probation revocation).
Appellant’s case is distinguishable in that the district court specifically directed him to follow the recommendations of the probation officer but did not impose those recommendations as conditions of probation. But requiring a defendant to follow a probation officer’s recommendation is itself an improper delegation of sentencing power. A probation condition that is violated must be “actually imposed by the judge” to support a probation revocation. Ornelas, 675 N.W.2d at 80.
Accordingly, appellant’s failure to enroll in the treatment program recommended by the probation officer cannot support the probation revocation. Because the district court used this ground to support the second Austin factor, the treatment program rationale for revocation did not satisfy the Austin test. But the district court also cited appellant’s violating his probation by consuming alcohol on two occasions as a reason for probation revocation. These violations alone could support a probation revocation in the discretion of the district court. We therefore reverse appellant’s probation revocation and remand to the district court with instructions that the district court decide appellant’s probation revocation solely on the ground of alcohol consumption apart from the treatment program rationale.
Reversed and remanded.
 Appellant failed to raise this issue to the district court. Normally, this court will not consider matters not argued and considered below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But see State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (considering this same issue on the merits in a probation revocation case although appellant failed to raise it below to the district court or the court of appeals).
 Appellant disputes the assertion that his probation officer ordered treatment. Appellant testified that the chemical dependency assessor recommended treatment and faxed the recommendation to his probation officer who, in later conversations, only indicated agreement with the recommendation. Nonetheless, any recommendation to begin treatment was imposed by the probation department and not the district court.