This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1058

State of Minnesota, City of Eagan,

Appellant,

vs.

Byron Gale Nesseth,

Respondent.

Filed November 26, 1996

Affirmed

Davies, Judge

Dakota County District Court

File No. T59469981

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Appellant)

Kevin W. Eide, Grannis, Grannis, Hauge, Eide, Anderson & Keller, P.A., 200 Town Centre Professional Bldg., 1260 Yankee Doodle Rd., Eagan, MN 55121-2201 (for Appellant)

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 2125 Upper 55th St. E., Inver Grove Heights, MN 55077 (for Respondent)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

The State appeals from a decision of the district court allowing respondent to withdraw his misdemeanor guilty plea. We affirm.

FACTS

In April 1995, respondent Byron Nesseth entered a guilty plea to the charge of violating Minn. Stat. § 609.79 (1994) ("obscene or harassing telephone calls"). Imposition of sentence was stayed, conditioned in part on Nesseth undergoing a psychological evaluation. When Nesseth failed to submit to the evaluation, the district court vacated the stay of imposition and ordered Nesseth to appear at a probation revocation hearing.

Nesseth immediately filed a motion to withdraw his guilty plea. The district court file does not include an affidavit with the motion, and Nesseth's asserted grounds for withdrawal are not known.

Nesseth failed to appear for the probation revocation hearing, and the court issued an arrest warrant. Nesseth, represented by counsel, appeared before the court during an arraignment calendar in November 1995. Nesseth's counsel was aware that the motion to withdraw his client's guilty plea was still pending and asked that the motion be heard that day. The court granted Nesseth's motion, vacated the guilty plea, and set the matter for trial. The district court did not issue a written order.

On the day of trial, the city attorney objected to the withdrawal of the guilty plea, claiming no notice of the hearing on that motion. Nesseth's counsel responded by filing a second motion to withdraw the guilty plea even though the first motion had been granted. Once again, the motion was not accompanied by an affidavit. The State opposed the motion, a hearing was conducted, and, in a written order, the judge affirmed his earlier oral order. On appeal, the State argues that the court erred in granting Nesseth's motion because there was no evidence that such action was necessary, under Minn. R. Crim. P. 15.05, subd. 1, to "correct manifest injustice."

D E C I S I O N

A defendant is permitted to withdraw a guilty plea following sentencing upon "proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. The petitioner bears the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea. Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988). The district court's decision on a motion to withdraw a guilty plea will not be disturbed on appeal absent an abuse of discretion. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

The State argues that there is no evidence to suggest that "manifest injustice" would result from a denial of Nesseth's request to withdraw his plea and that the district court thus abused its discretion. But this argument is purely speculative because the State claims not to know the grounds upon which the motion was granted.

We agree with the district court that it would be unfair at this point to penalize Nesseth for procedural and administrative errors of others. Because the State has failed to produce evidence that the court acted arbitrarily, we must assume that Nesseth's oral testimony in November 1995 properly satisfied the court that withdrawal of the plea was warranted under Minn. R. Crim. P. 15.05, subd. 1.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, SS10.