may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Oscar Flores, Jr.,
Filed February 4, 1997
Clay County District Court
File No. K2-95-1281
Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)
Todd S. Webb, Clay County Attorney, Scott G. Collins, Assistant Clay County Attorney, Clay County Courthouse, 807 North 11th Street, Moorhead, MN 56560 (for Respondent)
Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Huspeni, Judge.
Appellant challenges the district court's revocation of his probation, arguing that the court failed to make proper written findings to support the revocation. Because the district court's findings are sufficient to permit meaningful review and are supported by the record, we affirm.
Flores's probation officer alleged that Flores had violated his probation by failing to complete treatment and to abstain from drugs or alcohol. At a revocation hearing held on June 19, 1995, Flores admitted that even though he was aware of the consequences, he had voluntarily consumed alcohol in violation of his probation. The probation officer testified that Flores admitted to voluntarily consuming alcohol in violation of probation, that as a result of the violations Flores was discharged from treatment, that Flores failed to seek treatment at Migrant Health where he had been referred, that there was no appropriate alternative placement available, that Flores showed no remorse, and that public safety was at risk unless Flores was incarcerated.
The district court also reviewed a written recommendation by licensed psychologist Dr. R.P. Ascano. Ascano had originally recommended that Flores's sentence be stayed, but that recommendation was contingent on Flores's cooperation, compliance, and successful completion of treatment. After hearing the testimony and reviewing the record, the district court specifically found that Flores had violated his probation by failing to complete treatment successfully and that such failure was intentional and willful. The court revoked Flores's probation and executed the 172-month sentence.
Flores argues that the district court abused its discretion because it failed to make written findings and conclusions, citing Minn. R. Crim. P. 27.04, subd. 3(4), which states that a district court shall make written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court's reasons for its determination. Flores concedes that a reviewing court may affirm the district court's revocation of a stayed sentence provided that there is sufficient evidence in the record to support the necessary findings. See Austin, 295 N.W.2d at 250 (citing Pearson v. State, 308 Minn. 287, 241 N.W.2d 490 (1976)). Flores argues, however, that this court may not review the record to determine the sufficiency of the evidence because the district court did not make written findings. To support this argument, Flores quotes State v. Hlavac:
On an appeal challenging the district court's failure to make the necessary findings after the defendant's assertion that the Austin factors have not been met, [the reviewing court] will not search the record to determine whether sufficient evidence was presented to support the revocation of a stay of execution of sentence.
540 N.W.2d 551, 553 (Minn. App. 1995).
Hlavac is readily distinguishable. Before the district court rendered its decision to revoke Hlavac's sentence, Hlavac's attorney asserted that the state had failed to present evidence that would comply with the Austin requirements. The district court failed to address this issue. Id. at 552. Because the district court had made no findings, this court on appeal refused to examine the record to determine if sufficient evidence was presented. Id. at 553. This court found that the trial court abused its discretion by failing to respond to Hlavac's assertion. Id. In the present case, Flores did not argue that the state failed to present evidence sufficient to meet the Austin requirements; therefore, Hlavac is distinguishable.
Further the record shows that here: (1) the district court specifically found that Flores had violated his probation by failing to complete treatment successfully; (2) the district court specifically found Flores's failure intentional and willful; and (3) the district court specifically found that the need for confining Flores outweighed the policies supporting probation, because there was evidence that probation was appropriate only if Flores could successfully complete treatment and that public safety was at risk unless Flores was incarcerated. The third factor is especially persuasive inasmuch as Flores's original probationary sentence represented a dispositional departure from the sentencing guidelines, which would have mandated an executed sentence and imprisonment. Therefore, there is sufficient evidence in the record to support revocation.
[ ]1While Hlavac is distinguishable, we note that it is preferable in all cases for the district court to make adequate written Austin findings. Failure to do so in this case, however, has not impeded our ability to conduct meaningful review.