STATE OF MINNESOTA
IN COURT OF APPEALS
Fenton Virgil VanWert, Jr., petitioner,
State of Minnesota,
Filed August 24, 1999
Sherburne County District Court
File No. KX97549
Fenton V. VanWert, Jr., MCF Stillwater, 970 Pickett Street North, Bayport, MN 55003 appellant, pro se)
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Walter M. Kaminsky, Sherburne County Attorney, Courthouse, 13880 Highway 10, Elk River, MN 55330 (for respondent)
Considered and decided by Short, Presiding Judge, Crippen, Judge, and Harten, Judge.
After pleading guilty to third-degree burglary in violation of Minn. Stat. § 609.582, subd. 3 (1996), Fenton Virgil VanWert, Jr. was sentenced to 48 months and ordered to pay $462.78 in "joint and several" restitution with his codefendants. On appeal from a denial of postconviction relief, VanWert argues the prison wrongfully continued to withhold VanWert's prison wages after restitution had been fully paid by a codefendant. VanWert contends this is a violation of the Double Jeopardy Clause and he should be permitted to withdraw his guilty plea. Because the record is insufficient for appellate review, we affirm.
Because the restitution amount has been paid in full by a codefendant, VanWert argues withholding his prison wages constitutes a violation of the Double Jeopardy Clauses and he should be permitted to withdraw his plea. See U.S. Const. amend. V (establishing federal double jeopardy clause); Minn. Const. art. I, § 7 (establishing state double jeopardy clause); State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998) (recognizing double jeopardy clauses in federal and state constitutions prohibit multiple punishments for same offense); Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989) (noting defendant does not have absolute right to withdraw guilty plea under Minn. R. Crim. P. 15.05, subd. 1, which allows for withdrawal to correct manifest injustice). But VanWert did not provide this court with a transcript from the postconviction proceedings nor does the record contain any documentation suggesting the restitution has been paid in full. Without a more complete record, we cannot ascertain the facts or determine what arguments were presented to the postconviction court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating appellate court will not consider matters not argued and considered in trial court). Under these circumstances, we must affirm the denial of postconviction relief.