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,
File No. 9617277
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Thomas J. Harbinson, Scott County Attorney, Angela M. Helseth, Assistant County Attorney, 206 Scott County Courthouse, 428 South Holmes Street, Shakopee, MN 55379 (for respondent)
Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.
Appellant Dennis Thom argues the district court abused its discretion by revoking his probation. Thom also contends the district court abused its discretion by fining him a total of $1,000 for a misdemeanor offense. We affirm as modified.
The district court has broad discretion in determining whether to revoke probation and its decision should not be reversed absent a clear abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Before probation can be revoked, the district court must: (1) designate the specific condition or conditions that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation. Id. at 250. If the district court does not make express findings its decision will not be reversed if the record contains sufficient evidence to support revocation. State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989).
A jury found appellant guilty of criminal damage to his neighbor's property. The district court ordered a $300 fine and stayed a 90-day jail sentence on the condition that appellant refrain from contact with the victim. One month later the district court conducted a revocation hearing and concluded appellant violated his probation by approaching the victim and yelling comments about the victim to a neighbor when the victim was standing next to the neighbor. In finding a violation, the district court concluded appellant "should have known" the victim would hear his comments. Further, the court reminded appellant that it had spent "quite a bit of time back in May telling [him] that there was going to be no fooling around with me on this." The district court did not believe appellant's argument that appellant did not intend to communicate with the victim. It is the function of the factfinder to weigh the credibility of witnesses. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). Additionally, we note that the district court suspended all but a weekend of the original 90-day jail sentence when it revoked appellant's probation. On these facts we cannot conclude the district court's actions constitute an abuse of discretion.
We conclude, however, the district court erred when it imposed an additional $700 fine at the revocation hearing. Appellant already had been fined $300 for the original violation. The statutory maximum fine for misdemeanors is $700. Minn. Stat. § 609.03 (3) (1996). We therefore direct the district court to modify appellant's sentence to conform to the $700 maximum fine. Minn. R. Crim. P. 28.05, subd. 2. (court of appeals may direct entry by the district court of an appropriate sentence).
Affirmed as modified.