This opinion will be unpublished and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
State of Minnesota,
Adam Timothy Blake,
Filed January 9, 2007
Concurring specially, Harten, Judge*
Morrison County District Court
File No. K6-04-140
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 First Avenue Southeast, Little Falls, MN 56345 (for respondent)
John M. Stuart, State Public Defender, Ngoc Nguyen, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Adam Timothy Blake challenges revocation of his probation, arguing that the district court failed to properly address the Austin/Modtland factors. We affirm.
D E C I S I O N
A 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
A district court must consider three
factors on the record before revoking probation.
(i) confinement is necessary to protect the public from further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.
[t]he requirement that courts make findings under the Austin factors assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation. . . . [I]n making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon.
Although the district court did not explicitly
Second, the violations were intentional and inexcusable. And this probation violation was not the first; indeed, it was the third. Even though a Career Corrections Officer recommended probation revocation following an earlier violation, the district court allowed appellant to remain on probation, giving him another chance to conform his behavior to the law. Although appellant offered mitigating reasons as to why he had failed to pay restitution or fulfill other probation conditions requiring payments, appellant admitted there were no mitigating factors weighing against his failure to remain law abiding.
Third, the district court addressed
whether appellant should be incarcerated by stating that “[t]he Court’s Orders
would have little meaning if we’re not prepared to take action when the
conditions are violated and the requirements of the Court Order are largely
ignored.” Furthermore, the district court
also noted that appellant failed to remain law abiding. Appellant’s continued criminal behavior and
disregard of the seriousness of his probationary status satisfy two of the
three elements listed in
Although we would prefer that district courts address each Austin/Modtland factor more clearly, our de novo review reveals that the district court made sufficient findings. Accordingly, we conclude that the district court did not clearly abuse its discretion in revoking appellant’s probation.
HARTEN, Judge (concurring specially)
instant case constitutes a rare and limited exception to the Modtland rule. The evidence detailed by the district court
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.