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,
Charles Allen Davisson,
Filed October 27, 1998
Hennepin County District Court
File No. 95097323
Hubert H. Humphrey, III, Minnesota Attorney General, 102 State Capitol, St. Paul, MN 55155, and
Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant St. Louis Park City Attorney, 420 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)
Steven J. Meshbesher, Sherri D. Hawley, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.
Appellant Charles Allen Davisson argues on appeal that the district court abused its discretion by revoking his stay of adjudication without finding that his alleged violation of a condition of the stay was intentional or inexcusable. We reverse.
Despite its order for entry of judgment, the court stayed adjudication for two years and placed appellant on informal, unsupervised probation, subject to certain conditions. One condition was that appellant would "[c]omplete a psychological evaluation and follow any recommendations for treatment or therapy." The court set no time limit for the performance of this condition.
On January 22, 1998, the sentencing judge wrote to appellant's attorney and asked for the results of the psychological examination. On February 23, 1998, appellant's attorney replied, indicating that appellant had met with a psychologist on February 12, 1998, and that the psychologist had requested additional information and a three-week period to prepare her report. The prosecutor wrote to the court on February 25, 1998, alleging that appellant's delay in obtaining the psychological evaluation violated the terms of his probation, and requesting a violation hearing.
The court held a violation hearing on March 18, 1998. Appellant testified that no one had given him a deadline for completing the psychological evaluation and that, after receiving the court's letter, he began the examination process by undergoing two tests and an extensive interview with a therapist. He testified that he had decided to consult with another therapist and was scheduled to meet with him on April 9, 1998.
The court found that appellant had violated his probation "by not completing a psychological evaluation and following the recommendation of said evaluation." The court then revoked the stay of adjudication, and imposed and stayed the execution of a jail sentence and a fine.
Due process prohibits the revocation of probation unless the probationer had specific prior warning or notice of the conditions of his probation and the court designates the specific condition that the probationer violated. Id. at 250-51.(1) The violation must be proved by clear and convincing evidence before the court may revoke probation. State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. February 13, 1987).
The trial court gave neither a specific deadline nor a guideline - such as "promptly," "immediately," "without delay," or "within 60 days" - for the performance of the probationary condition of undergoing a psychological evaluation. Without a deadline or some guideline, the evidence does not clearly and convincingly establish that appellant had notice or warning of when his performance was due. Although it might be inferred that appellant necessarily understood performance to be due within a reasonable time, or at least before the condition became impossible to satisfy or was somehow rendered moot, the evidence does not clearly and convincingly establish the occurrence of any of those time frames. Appellant had six months remaining on probation at the time of the revocation. It cannot be said with any support in the record that performance was clearly due as of the revocation date. It is equally without factual support, and, therefore, speculative, to suggest that performance within the final six months would have been unreasonable, impossible or moot.
We hold that, under these circumstances, the trial court abused its discretion in revoking appellant's stay of adjudication.
(1) Austin, 295 N.W.2d at 250, requires three findings as prerequisite to revoking probation. The trial court here made only one of those findings, but the dispositive issue is the more fundamental one of notice.