This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Eddie LaVelle McCurty,
Filed July 23, 1996
Hennepin County District Court
File No. 95-003623
Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, State Public Defender, Sharon Jacks, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Crippen, Judge.
U N P U B L I S H E D O P I N I O N
Eddie LaVelle McCurty appeals from the postconviction order revoking his probation. Because the district court did not abuse its discretion, we affirm.
D E C I S I O N
At the time of appellant's admitted probation violations, he was on probation for two offenses to which he had pleaded guilty: aggravated robbery and second-degree murder. For the former, he received a 48-month suspended sentence and five years probation. For the latter, he received a 245-month stayed prison term, and probation for the same term. Due to the violations, the court revoked probation and ordered incarceration for the 48-month sentence and revoked and reinstated probation on the 245-month sentence.
A court may revoke probation where there is a violation of
any of the conditions of probation * * * or [where defendant] has otherwise been guilty of misconduct which warrants the * * * execution of sentence[.]
Minn. Stat. ' 609.14, subd. 1(a) (1994). The sentencing guidelines state:
Less judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history.
Minn. Sent. Guidelines III.B. District courts are instructed to base a revocation on certain factors to ensure against a "reflexive reaction" to probation violations. State v. Austin, 295 N.W.2d 246, 249-51 (Minn. 1980).
Here, there is ample evidence to support the revocations and to order incarceration. Appellant's convictions were for offenses that were very severe and committed within two months of each other. In the first, he threatened individuals with a sawed-off shotgun; in the second, he shot and killed a pizza delivery man. After serving less than seven months of his probation, he violated the laws of this state, his probation conditions, the rules of the Portland House Program, and the trust of his probation officer. He was arrested for a probable cause narcotics offense, drove a car without a valid driver's license, failed to return to the Portland House Program or report to his probation officer the circumstances of the arrest, and intentionally failed to complete the Portland House Program. The fact that the primary violation was possessing a "simulated controlled substance with intent to sell" does not lessen the seriousness of each probation violation. The district court did not clearly abuse its discretion in revoking the probation on appellant's aggravated robbery sentence, ordering incarceration, and reinstating the 245-month probation. See id. at 249-50.