This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Michael Lee Chelberg,


Filed September 29, 1998

Reversed and remanded.

Randall, Judge

Hennepin County District Court

File No. 97111017

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Jerry Strauss, Rachael Goldberger, Strauss & Associates, 250 Second Avenue South, Suite 145, Minneapolis, MN 55401 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.



Appellant challenges the district court's decision to revoke his probation, arguing that the district court failed to make the required findings and that the district court erred when it took judicial notice of his signature on the plea agreement. We reverse and remand.


On December 22, 1997, appellant Michael Lee Chelberg pleaded guilty in Hennepin County District Court to fifth-degree possession of a controlled substance. The district court sentenced Chelberg to 19 months' imprisonment. Execution of the sentence was stayed and Chelberg was placed on three years' probation. Among other things, the conditions of his probation required that Chelberg: (1) not be charged with any crimes; (2) not use, possess, receive, or transport any firearms or nonprescription drugs; (3) successfully complete treatment, including aftercare; (4) serve 180 days in the workhouse; and (5) reimburse the public defender's office $100 when he finished treatment and became employed. He was also ordered to pay a $6,000 fine.

On March 30, 1998, Chelberg was arrested for careless driving. During the search following his arrest, the police found two baggies of marijuana and a baggie of methamphetamine in Chelberg's pocket. The officers also found five envelopes of methamphetamine. A search of the vehicle uncovered eight more bags of marijuana and a bag of powdered cocaine. The next day a complaint was filed in Hennepin County District Court, charging Chelberg with one count of second-degree possession of a controlled substance and two counts of fifth-degree possession of a controlled substance. On April 9, 1998, the sentencing court was informed of Chelberg's arrest and that he violated the terms of his probation.

A probation revocation hearing was held on April 10, 1998. During the hearing, the state introduced evidence that Chelberg had been charged with three counts of felony possession of controlled substances, had been discharged from aftercare for lack of attendance, twice tested positive for the presence of cocaine, and admitted to using cocaine. On the record, the district court found that the state had proven by clear and convincing evidence that Chelberg violated the terms of his probation. The court then executed Chelberg's December 22, 1997, sentence and ordered payment of the $6,000 fine. Judgment was entered on the executed sentence that same day. On April 29, 1998, Chelberg filed his notice of appeal. The district court did not issue its written findings of fact, conclusions of law, and order until May 27, 1998.


The district court's decision to revoke probation will not be reversed absent a clear abuse of discretion. State v. Theel, 532 N.W.2d 265, 266-67 (Minn. App. 1995) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)), review denied (Minn. July 20, 1995). But before a district court can revoke probation, the court must specifically

(1) designate the specific conditions that were violated; (2) find that the violation was inexcusable or intentional; and (3) find that the need for confinement outweighs the policies supporting probation.

Id. at 267 (citing Austin, 295 N.W.2d at 250). A reviewing court may affirm the district court even when the district court has failed to make the three Austin findings, provided there is sufficient evidence in the record to support the necessary findings. But if the defendant specifically asserts during the revocation hearing that the state has failed to satisfy the three Austin factors, "the district court [is] obliged to make the Austin findings either at the hearing on the record or in writing after the hearing." State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995). If the district court fails to make the necessary findings after defendant's assertion that the Austin factors have not been satisfied, 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." Id.

On appeal, Chelberg argues that the district court erred because it failed to make the necessary Austin findings after a specific Hlavac demand. The state argues that this issue is moot because the district court issued the necessary Austin findings in a May 27, 1998, order (six weeks after the hearing). Alternatively, the state claims that the record contains sufficient evidence to support the district court's decision to revoke Chelberg's probation.

Once an appeal is properly filed, "a trial court loses jurisdiction over the matters appealed." In re Welfare of D.S.S., 506 N.W.2d 650, 653 (Minn. App. 1993) (citing State v. Barnes, 249 Minn. 301, 302, 81 N.W.2d 864, 866 (1957)). The district court therefore generally "loses jurisdiction to make decisions once an appeal is filed." Bosshart v. Commissioner of Pub. Safety, 427 N.W.2d 720, 722 (Minn. App. 1988).

Here, Chelberg filed his notice of appeal on April 29, 1998, nineteen days after the hearing. The district court did not issue its written findings, conclusions of law, and order revoking Chelberg's probation until May 27, 1998. Once the appeal was filed, the district court was without jurisdiction to issue late findings to answer appellant's specific request. Thus, the district court's May 27, 1998, order is without effect. We note that Chelberg did not unfairly "race to the courthouse" to divest the district court of jurisdiction by noticing an appeal before the district court filed the requested written findings. Both the hearing and the demand for specific findings took place on April 10. Chelberg's attorney did not file a notice of appeal until April 29. As any criminal defendant, Chelberg was entitled to file a notice of appeal once the district court revoked his probation and judgment was entered. The fact that Chelberg had 90 days to file his appeal does not mean that the district court had 90 days in which to file written findings.

Although the district court did find on the record that the state had proven by clear and convincing evidence that Chelberg violated the terms of his probation, the district court failed to make any findings with regard to the other Austin factors. The following conversation took place between the district court and defense counsel:

MR. STRAUSS: Your Honor, the government has not proved the Lobach's [sic][1] standards. We ask to dismiss the A&D.

THE COURT: I find that there is clear and convincing evidence that the defendant violated significant portions of his probation. Do you have any mitigating evidence?

MR. STRAUSS: Our position is that that's not enough under State v. Lobach [sic], Your Honor, the Court needs to give me specific reasons under State v. Lobach [sic].

THE COURT: I will provide in the record written reasons. I am going to execute the sentence and sentence the defendant to 19 months in the custody of the Commissioner of Corrections.

Because Chelberg challenged whether the state had satisfied its burden, under Hlavac, the district court was required to make specific findings on the issue. The district court did not do so before the appeal was filed, and thus, this court is precluded from "search[ing] the record to determine "whether sufficient evidence was presented to support the [probation ] revocation." Hlavac, 540 N.W.2d at 553.

But we conclude that contrary to Chelberg's assertion, the decision in Hlavac does not prohibit this court from remanding the matter for appropriate findings. In State v. Balma, 549 N.W.2d 102, 105-06 (Minn. App. 1996), a decision following Hlavac, this court, relying on Hlavac, vacated the district court's probation revocation order because the court failed to make the necessary Austin findings either in writing or on the record. Instead of simply reversing the revocation order without more, this court remanded for findings by the district court, stating that "without such findings, we cannot review whether the required three-step Austin analysis has been undertaken." Id.

Thus, even though the district court failed to make the necessary Austin findings here, we remand the matter for findings by the district court on whether the three requirements under Austin have been satisfied. We note that the better practice after Austin and Hlavac is that on a specific demand for findings by the defendant in a probation revocation hearing, findings supporting the district court's decision to revoke probation should be made on the record at the hearing and supplemented by written findings immediately after the hearing. At least, written findings should be issued immediately. Criminal defendants can appeal adverse orders, judgments, or verdicts at any time during the appeal period. The appeal can come on the front end, as it did here, rather than on the back end. Once the appeal is filed, it becomes difficult, if not impossible, for the district court to later issue a ruling to support a decision retroactively before the appeal was filed.

Because we reverse and remand to the district court for findings, we do not address Chelberg's argument that the district court erred when it took judicial notice of his signature on the document outlining the conditions of his probation.

Reversed and remanded.

[1] The reference to State v. Lobach is a reference to State v. Hlavac.