This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Harvey Leroy Jahnke,


Filed January 17, 2006


Peterson, Judge


Martin County District Court

File No. K9-03-15


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


Terry Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 123 Downtown Plaza, Fairmont, MN  56031 (for respondent)


John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal challenges an order of restitution issued as part of the disposition following appellant’s fifth-degree criminal-sexual-conduct conviction.  Because appellant did not submit an affidavit challenging restitution after receiving notice, as required under Minn. Stat. § 611A.045, subd. 3(a) (2004), we affirm.


            Appellant Harvey Leroy Jahnke was convicted of fifth-degree criminal sexual conduct.  Restitution was reserved at sentencing.  The victim’s father paid for her to attend psychological counseling and submitted an affidavit of restitution for $900.  At the restitution hearing, the victim’s father made his claim for restitution for the counseling sessions.  Jahnke contested the claim for restitution at the hearing, but the district court concluded that because he failed to submit a sworn affidavit as required under Minn. Stat. § 611A.045, subd. 3(a) (2004), he failed to satisfy his burden of production.  This appeal followed.


As part of the disposition of a criminal charge, a victim may receive restitution for any out-of-pocket losses resulting from the crime.  Minn. Stat. § 611A.04, subd. 1(a) (2004).  In general, district courts are given broad discretion in awarding restitution.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

At the sentencing, dispositional hearing, or hearing on the restitution request, the offender shall have the burden to produce evidence if the offender intends to challenge the amount of restitution or specific items of restitution or their dollar amounts.  This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims.  The affidavit must be served on the prosecuting attorney and the court at least five business days before the hearing. 


Minn. Stat. § 611A.045, subd. 3(a) (2004) (emphasis added).

The requirement under Minn. Stat. § 611A.045, subd. 3(a), that the offender must produce a detailed sworn affidavit setting forth all challenges to the restitution, is mandatory.  See Minn. Stat. § 645.44, subd. 15a (2004) (“‘Must’ is mandatory.”).  It is undisputed that Jahnke did not produce an affidavit.  Therefore, Jahnke did not meet his burden of production under Minn. Stat. § 611A.045, subd. 3(a), and the district court did not err by awarding restitution for the counseling sessions.