This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1613

 

State of Minnesota,
Respondent,

vs.

John Wayne Wood,
Appellant.

 

Filed April 5, 2005

Affirmed

Minge, Judge

 

Isanti County District Court

File No. T2-01-2437

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jeffrey Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

Steven K. Marden, P.O. Box 359, 2136 Ford Parkway, St. Paul, MN 55116 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

 

 

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant John Wayne Wood was convicted of storing solid waste on his land and occupying a dwelling without obtaining a certificate of occupancy, in violation of Isanti County, Minn., Solid Waste Ordinance § IV, subd. 1 (2001) and Isanti County, Minn., Zoning Ordinance § 19, subd. 2(1) (2001).  The district court placed him on probation.  In August 2004, the district court found appellant had violated the terms of his probation.  Appellant challenges the probation revocation order, arguing that the district court erred in stating appellant had been convicted of three charges, by describing the terms of appellant’s probation as “restitution,” by finding appellant willfully violated his probation terms, and by misapplying the doctrine of law of the case.  We affirm.

FACTS

In September 2001, in an amended complaint the state charged appellant, who owns land in Isanti County, with storing unlicensed and inoperable motor vehicles, in violation of Isanti County, Minn., Zoning Ordinance § 6, subd. 2 (2001); maintaining an improper outhouse, in violation of Isanti County, Minn., Zoning Ordinance § 6, subd. 2(18)(h) (2001); occupying a dwelling without obtaining a certificate of occupancy, in violation of Isanti County, Minn., Zoning Ordinance § 19, subd. 2(1) (2001); storing solid waste, in violation of Isanti County, Minn., Solid Waste Ordinance § IV, subd. 1 (2001); and maintaining or permitting a public nuisance, in violation of Minn. Stat. § 609.74 (2000).  The state later dismissed the charge of maintaining an improper outhouse.

            A jury convicted appellant in March 2003 of the counts of improperly storing solid waste and occupying a dwelling without obtaining a certificate of occupancy.   The jury found him not guilty of the other two counts.  The district court sentenced appellant to 90 days for each conviction but stayed execution of the sentence and placed appellant on probation.  The terms of the probation included bringing the property into compliance with zoning laws by January 15, 2004, and permitting access to inspectors to perform soil borings on his property. 

            Appellant challenged his sentence, arguing that the district court abused its discretion in requiring appellant to permit inspectors to access his property.  State v. Wood, No. A03-123 (Minn. App. July 27, 2004).  This court affirmed appellant’s sentence.  Id

In March 2004, the county filed a probation violation report, alleging that appellant continued to store solid waste in violation of the zoning ordinances.  The district court held a Morrissey hearing in May 2004.[1]  At the Morrissey hearing, the state presented the testimony of the Isanti County zoning administrator, who stated that tire fences maintained by appellant constituted impermissible storage of tires in violation of zoning ordinances.  The district court determined that the tires did not constitute appropriate fences and that the issue had already been litigated, so the issue was no longer open to dispute under the policies supporting the doctrines of law of the case, res judicata, and collateral estoppel.  The district court concluded appellant was in willful violation of the terms of his probation, continued appellant’s probation, ordered appellant to serve ten days in the county jail, and required appellant to bring the property into compliance with the zoning ordinances by February 5, 2005.  The order also stated that the jury had found appellant guilty of three counts and that the condition of probation requiring appellant to bring his property into compliance with the zoning ordinances was an order for restitution.  This appeal follows.

D E C I S I O N

 

I.

The first issue we address is whether the district court erred by stating in the probation revocation order that the jury had found appellant guilty of three charges.  Appellant argues that he was found guilty of only two charges.  The record shows that appellant was only convicted of two charges.  Appellant, however, does not claim he was prejudiced in any way by the district court’s error. 

A clerical error has been defined in the civil context as a mistake that is ordinarily apparent “upon the face of the record and capable of being corrected by reference to the record only.”  State v. Walsh, 456 N.W.2d 442, 443 (Minn. App. 1990) (quotation omitted).  A clerical error is not a mistake that could reasonably be attributed to the exercise of judicial consideration of the case.  Id

Here, the district court’s error was clearly a clerical error because it is apparent on the face of the record that appellant was convicted of only two charges, because this error can be corrected by reference only to the record, and because this error cannot be attributed reasonably to the judge’s consideration of the case.  See Minn. R. Crim. P.  27.03, subd. 8; Walsh, 456 N.W.2d at 443.  Because the error is clerical and appellant was not prejudiced, the error provides no basis to reverse the disposition in this case.

II.

            The next issue is whether the district court erred by concluding that the probation condition requiring appellant to bring the premises into compliance with zoning ordinances and codes is an order for restitution.  Appellant argues that the district court does not have the authority to require appellant to bring his premises into compliance with the applicable zoning laws.

Restitution is intended to restore or compensate the victim of a crime for any loss suffered.  State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).  “Restitution is inappropriate unless the recipient of restitution is the victim of a crime.”  State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).  Here, neither the state nor the county is the victim of a crime, and bringing the property into compliance with the zoning ordinances will not compensate the state or county for any loss.  Therefore, the term of appellant’s probation requiring appellant to bring his property into compliance is not properly called “restitution.” 

But the government does have the right to require its citizens to comply with the law.  Local governmental entities have the right to mandate a party bring its property into compliance with zoning ordinances, even after the party has been punished for non-compliance.   See City of Minneapolis v. F & R, Inc., 300 N.W.2d 2, 4 (Minn. 1980).  Bringing the property into compliance with the zoning ordinances was an appropriate term of appellant’s probation.

III.

            The third issue is whether the probation violation order was supported by clear and convincing evidence.  Appellant argues that the state did not present any evidence that appellant was in willful violation of the terms of his probation.

            If a probationer violates conditions of probation, the district court may revoke probation and execute the sentence previously imposed.  Minn. Stat. § 609.14, subd. 3(2) (2004).  “The [district] 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.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980) (citations omitted).

Through the testimony of the Isanti County zoning administrator, the state produced evidence that in March 2004, approximately six weeks after the date appellant had been ordered to have his property in compliance with the zoning ordinances, appellant’s property still violated zoning ordinances.  The state presented evidence that although some of the scrap wood and scrap iron had been moved, there were still solid waste violations.  The district court did not abuse its discretion in finding appellant was in willful violation of his probation terms and revoking appellant’s probation.

 

 

IV.

Finally, we consider whether the district court misapplied the doctrine of the law of the case.  The district court concluded that appellant could not argue at the probation revocation hearing that he was permitted to use tires as fencing because the issue was litigated at trial and not raised on appellant’s first appeal.  The district court stated, “While this does not rise to a classic law of the case analysis . . . , all of the policy concerns that support that doctrine, the doctrine of res judicata, the doctrine of collateral estoppel and issue preclusion apply here to prevent the re-litigation of the issue.”  Appellant attempts to collaterally attack his conviction by arguing that the tires on his land are proper fences and do not violate zoning ordinances. 

Res judicata prohibits either party from relitigating claims after an adjudication of a dispute between the parties arising from the same circumstances.  Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004). Collateral estoppel, also known as issue preclusion, is similar to res judicata but applies to specific legal issues that have been adjudicated.  Id.  The doctrine of law of the case applies most commonly to situations where the appellate court rules on a legal question and remands the case to the district court.  Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 843 (Minn. 1987).  “The legal question thus determined by the appellate court will not be re-examined on a second appeal of the same case.”  Id.  The underlying principle that an adjudication on the merits should not be relitigated applies even when res judicata, collateral estoppel, and law of the case technically do not apply.  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 719-20 (Minn. 1987).

The district court did not say that these doctrines apply to the case at hand, just that the principles supporting these doctrines apply, and that the merits of this dispute over tires should not be relitigated.  In Minnesota, it is a “well-settled rule that a defendant is not entitled to raise issues already decided on appeal or which are known but not raised on the first appeal.”  State v. Andren, 350 N.W.2d 404, 405 (Minn. App. 1984).  Appellant was aware that his initial conviction was in part for using tires as fences on his property.  Because he could have raised this issue on his first appeal, we agree with the district court that appellant has waived his right to raise this issue.

Appellant also contends the district court abused its discretion in classifying some of appellant’s personal property as solid waste and in ordering appellant to dispose of tires, machinery, and fuel oil barrels because the order constitutes a “taking.”  The classification of appellant’s personal property as solid waste and the order that he dispose of certain property were also parts of appellant’s original conviction and sentence.  Appellant failed to raise these issues on his first appeal.  Because appellant may not collaterally attack his conviction and sentence when he could have raised these issues on his first appeal, we affirm the district court’s order.

            Appellant has expressed concern that the result in this case may be used in a condemnation or other proceeding.  We caution that we do not reach the application of other enforcement procedures and that our decision should not be taken as a ruling relevant to such a proceeding.  No condemnation issues were raised below, so we do not review them on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (explaining that appellate courts will not review matters not considered by the district court).

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] A Morrissey hearing is a hearing that must be held before a probationer’s probation may be revoked to assure that the probationer is accorded due process.  Minn. R. Crim. P. 27.04, subd. 3; Pearson v. State, 308 Minn. 287, 290, 241 N.W.2d 490, 492 (1976).