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,
Jose Angel Padilla a/k/a Jose Angel Gonzalez,
Filed January 26, 1999
Polk County District Court
File No. K996264
Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Holtan, Judge.
Appellant challenges the denial of his motion to modify restitution, claiming that the restitution was not authorized by law. We affirm.
Appellant Jose Angel Padilla (also known as Gonzalez) pleaded guilty to two counts of wrongfully obtaining public assistance from Polk County. The prosecutor certified the wrongfully obtained amount at $3,423.84. This amount was supported by documents from the fraud investigator in the Polk County welfare office. Appellant did not object to these figures or offer any evidence of another figure. The trial court ordered restitution of $3,423.84. Nearly two years later, appellant moved the court to correct the restitution amount on the basis that it was unauthorized by law. He argued that some of the assistance he received during April and May 1995 was while he was in jail and that Polk County was legally obligated to provide this assistance. The trial court denied the motion, finding that the issue of the amount of restitution was waived.
An appeal from an order denying a motion for sentence correction or modification is treated as an appeal from denial of postconviction relief. State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995); see also State v. Stutelberg, 435 N.W.2d 632, 635 (Minn. App. 1989) (motion under Minn. R. Crim. P. 27.03, subd. 9, is "post-conviction proceeding"). This court will review a postconviction proceeding only to see that the trial court properly exercised its discretion and that there was sufficient evidence to support the court's findings. Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998). A trial court has broad discretion to order reasonable restitution. State v. Muller, 358 N.W.2d 72, 76 (Minn. App. 1984). Findings of the trial court are viewed in a light most favorable to the verdict and sentence. State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984).
Appellant challenges the order of restitution as unauthorized by law. The court may correct a sentence "at any time" if it is unauthorized by law. Minn. R. Crim. P. 27.03, subd. 9. But the true nature of appellant's argument is that the restitution was excessive, not that it was unauthorized.
At sentencing, appellant had notice of the specific amounts and different kinds of public assistance he was accused of wrongfully obtaining. He did not object to any of the figures. Additionally, appellant knew that he was in the Polk County jail during part of the period in which he was accused of wrongfully obtaining public assistance. Appellant may not assert, as grounds for postconviction relief, an issue he knew, but inexcusably failed to raise, at sentencing. See State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993) (failure to object to restitution during sentencing constitutes waiver of future challenge on that issue), review denied (Minn. Dec. 22, 1993).
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.