This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John Patrick Murphy,
Affirmed in part and Reversed in part
Ramsey County District Court
File No. K2931209
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John P. Murphy, #150133, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)
Considered and decided by Lansing Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends the district court abused its discretion by revoking his probation. Appellant also argues: (1) the district court erred by failing to execute his sentences concurrently; (2) the durational departure and imposition of a 60-month sentence was improper; (3) his probation constitutes banishment and is prohibited by Minnesota law; (4) money in his wallet was improperly seized; (5) he has been subject to double jeopardy; (6) the state failed to disclose required information; (7) his sentence should be reversed because he did not receive a copy of his alleged probation violation; and (8) his revocation was improper because a hearing was not held within seven days after he was charged with violation of his probation. We reverse the seizure of appellant’s money but affirm the district court in all other respects
Appellant argues his probation should not be revoked based on his alleged violation of the restitution order because no payment schedule was ever set. He also argues that his arrest for leaving the state without permission is not a violation of his probation because the defense of entrapment applies and he was subject to selective and discriminatory prosecution.
The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.
State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). To revoke probation, the court must (1) designate the specific condition or conditions a probationer violated; (2) find that the violation was intentional and inexcusable; and (3) find that the “need for confinement outweighs the policies favoring probation.” Id. at 250.
A. Payment Schedule
Here, appellant agreed to a plea bargain in which he would pay $30,000 to the victims of his crimes. The record shows that in 1994 appellant stated he would pay the debt within the year. Appellant set up his own payment schedule and failed to make any payments in accordance with his self-structured payment schedule. Moreover, the record indicates that appellant hid substantial liquid assets from the court. Because the evidence shows appellant has made no effort to pay restitution in the last eight years and has taken affirmative steps to hide his assets, we conclude it was within the district court’s discretion to revoke appellant’s probation.
To raise an entrapment defense, a defendant must show by a fair preponderance of the evidence that the government induced the crime by improper pressure, badgering, or persuasion. State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985). Predisposition can be proved with evidence of
(a) defendant’s active solicitation to commit the crime, (b) prior criminal convictions, or (c) prior criminal activity not resulting in conviction * * *, or (d) defendant’s criminal reputation, or by any other adequate means[.]
State v. Grilli, 230 N.W.2d 445, 452 (1975).
The record shows that appellant expressed intent to leave the state, in violation of his probation. Appellant told the courts in Iowa that he came there to go to an inpatient treatment VA hospital for posttraumatic stress disorder. Once back in this state he claimed an entrapment defense.
Appellant argues he was induced to leave because law enforcement, through an informant, provided appellant with transportation. But appellant has the burden of proof to show by a preponderance of the evidence that he was induced to commit the crime. To establish entrapment, some form of pressure, persuasion, or badgering must be shown. State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980). Here, appellant provides no evidence that leaving was not his idea, or that he was pressured to leave. We conclude that appellant did not satisfy his burden of proof and that the district court did not abuse its discretion in determining that appellant violated his probation by leaving the state without permission.
Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor’s charging authority.
State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996) (citations omitted).
Appellant fails to offer any evidence to show the prosecution engaged in selective and discriminatory prosecution. Appellant claims that he is the only probationer to have his probation revoked for failure to pay restitution. We disagree. See State v. Theel, 532 N.W.2d 265 (Minn. App. 1995) (probation revoked in part due to failure to pay restitution), review denied (Minn. July 20, 1995). Given the discretion afforded the prosecutor, and appellant’s lack of evidence, we conclude appellant has not established that he was the victim of selective prosecution.
We reject appellant’s argument that the district court erred by failing to execute the sentences concurrently. The Minnesota Supreme Court already ruled against appellant on this issue. State v. Murphy, 545 N.W.2d 909, 916-17 (Minn. 1996).
We also reject appellant’s argument that the district court’s durational departure and imposition of a 60-month sentence was improper. The Minnesota Supreme Court has already ruled on appellant’s durational departure issue. Id.
Appellant also makes a motion to execute his sentence, foregoing probation and have it run concurrent with previous sentences. But appellant’s sentences and their consecutive nature have been affirmed by the Minnesota Supreme Court. Id. Thus there is no authority for appellant’s request. In addition, this court has held that having violated his probation, a criminal defendant is not entitled to demand that his sentence be executed. See Bail v. State, 391 N.W.2d 8, 10 (Minn. App. 1986), review denied (Minn. Sept. 22, 1986).
Appellant argues that the probation condition that he is to serve his probation outside of the states of Minnesota and Wisconsin constitutes banishment and is thus prohibited by Minnesota law. We conclude that because appellant’s probation has been revoked this issue is not properly before us.
Appellant argues that the seizure of money from his wallet and the district court’s order that the money be applied to his restitution obligation was improper. We agree. “The trial court has broad discretion in imposing restitution.” State v. Olson, 381 N.W.2d 899, 900 (Minn. App. 1986). A restitution order
may be enforced by any person named in the order to receive the restitution * * * in the same manner as a judgment in a civil action.
Minn. Stat. § 611A.04, subd. 3 (1998). But the only property a district court is specifically authorized to seize to enforce restitution is a convicted defendant’s bail deposit. Minn. Stat. § 629.53 (1998). Otherwise, restitution is to be enforced as a civil judgment. Minn. Stat. § 611A.04, subd. 3.
All of appellant’s property that was seized when appellant was taken into custody was returned, except for $238. We conclude the district court abused its discretion by using an enforcement mechanism not authorized by statute to enforce the restitution order. We therefore reverse the district court’s order that the seized money be applied to appellant’s restitution obligation.
Appellant argues that he has been subject to double jeopardy because the same evidence used in his parole revocation hearing was used in his probation revocation hearing. We disagree.
“[R]evocation of probation or parole is regarded as a reinstatement of the original sentence rather than punishment for more recent misconduct[.]” State v. McKenzie, 542 N.W.2d 616, 620 (Minn. 1996) (citations omitted). Appellant is not being punished by violating his parole and probation because they are not considered separate offenses. Appellant’s conduct of failing to pay restitution is a “behavioral incident,” but the probation and parole are not offenses. We conclude appellant is not subject to double jeopardy because he is neither being convicted twice nor double-punished.
Appellant argues that the district court erred in denying his motion to dismiss his probation revocation hearing due to the prosecution’s failure to fully disclose all information.
The Minnesota Rules of Criminal Procedure provide that at the first appearance in a probation revocation proceeding, the district court should inform the probationer
[t]hat before the revocation hearing all evidence to be used against the probationer shall be disclosed to [him] and [he] shall be provided access to all official records pertinent to the proceedings[.]
Minn. R. Crim. P. 27.04, subd. 2(1)(c). But noncompliance with rule 27.04 is not a constitutional violation. Further, the notifications prescribed in rule 27.04 exceed the protections required by the federal constitution for probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1764 (1973).
Here, all of the evidence was given to appellant prior to the hearing. Moreover, the hearing was delayed to ensure appellant had adequate time to prepare and appellant had access to the state’s file. We conclude that appellant’s rights were not violated.
Appellant argues his sentence should be vacated because he never received a copy of his probation violation. We disagree. We conclude the record supports the district court’s finding that appellant was served and that appellant and his attorney appeared and fully defended his case.
Appellant argues his sentence should be vacated because his revocation hearing was not held within seven days after being charged with violation of his probation.
The court shall set a date for the revocation hearing within a reasonable time before the court, which granted probation. Minn. R. Crim. P. 27.04, subd. 2 (4). But the rule mandates seven days as being reasonable only when the defendant is in custody as a result of the revocation proceedings. Id. Where a defendant is being held on another crime, prejudice may not result if the hearing is delayed. State v. Compton, 340 N.W.2d 358, 360 (Minn. App. 1987).
Here, following a December 28, 2000, hearing appellant was found guilty of a parole violation, and sentenced to eight months in prison until his sentence expired. Although his probation revocation hearing was not held until May 2, 2001, the district court gave appellant credit for time served from September 29, 2000, to August 28, 2001. Moreover, appellant has presented no evidence that he was prejudiced by the delay in holding his revocation hearing.
Affirmed in part and reversed in part.