This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-649

 

 

In the Matter of the
Welfare of:  J.C.B.

 

 

Filed November 21, 2000

Affirmed
Foley, Judge^*

 

Hennepin County District Court

File No. J60767315

 

David L. Ayers, Ayers & Riehm, 100 Riverwood Place, 880 Sibley Memorial Highway, Mendota Heights, MN 55118; and

 

Dean S. Grau, 5010 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant J.C.B. challenges the revocation of his extended jurisdiction juvenile (EJJ) probation, arguing (1) the district court misconstrued the language of the EJJ statute, and (2) if the district court correctly construed the language of the EJJ statute, then the statute violates constitutional due process.  We affirm.

FACTS

            In August 1997, then 17-year-old J.C.B. assaulted another youth with a firearm. J.C.B. admitted to the criminal conduct and the prosecutor agreed to designate him as an extended jurisdiction juvenile (EJJ).  Pursuant to the EJJ statute, the district court imposed a 15-month adult sentence, but stayed execution so long as J.C.B. complied with the conditions of his EJJ probation.  One of these conditions was that J.C.B. was to complete a program at the STEP group home.  J.C.B. failed to report to STEP and was placed in detention for failure to meet a condition of probation.  While in detention, J.C.B. changed his mind several times about attending STEP; ultimately, STEP was no longer willing to accept him.

            The district court found that J.C.B.’s refusal to report to STEP, although a “technical violation,” was nevertheless an intentional and inexcusable violation of the conditions of EJJ probation.  The district court therefore revoked probation.

D E C I S I O N

I.

            Minn. Stat. § 260B.130 (Supp. 1999) governs EJJ prosecutions.  If an EJJ prosecution results in a guilty plea or a finding of guilt, the district court will

impose one or more juvenile dispositions and impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense. 

 

Id., subd. 4(a).  The EJJ statute states that if “the court finds that reasons exist to revoke the stay,” then the district court “must order execution of the previously imposed sentence.”  Id., subd. 5 (emphasis added).

            Generally, in revoking probation, a district court must (1) designate the specific condition or conditions that were violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation.  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  In the case of EJJ probation, however, we have stated as follows:

A district court has broad discretion in determining whether to revoke probation and execute a sentence for adult offenders and will be reversed only if the court abused its discretion.  In considering sentence revocation under the extended jurisdiction juvenile statute, however, the court’s discretion must be exercised consistently with the provisions of [Minn. Stat. § 260B.130, subd. 5].

 

State v. Bradley, 592 N.W.2d 886, 887 (Minn. App. 1999) (citation omitted), review denied (Minn. July 28, 1999).  The text of the EJJ statute dictates that the district court need not consider the third Austin factor—whether the need for confinement outweighs the policies favoring probation.  Id. at 888.  Rather, both Minn. Stat. § 260B.130, subd. 5, and Minn. R. Juv. P. 19.09, subd. 3(C)(2), direct the district court to impose the adult sentence upon finding that the juvenile violated a condition of probation.

            J.C.B. violated a condition of his EJJ probation.  Although the district court characterized the violation as “technical,” it nonetheless found that the violation was intentional.  Thus, the first and second Austin factors were met.  In addition, although not required by the statute, the record reflects that the district court considered the third Austin factor, yet decided that revocation was appropriate.  Moreover, the record supports the district court’s decision to revoke J.C.B.’s EJJ probation and to impose the adult sentence. To the extent that J.C.B. seeks to modify the text of the EJJ statute or to change its construction, we leave that task to the state legislature or the supreme court respectively.

II.

            J.C.B. contends that if the EJJ statute does not require consideration of the third Austin factor, then it violates constitutional due process.  This issue was not raised before the district court, and this court generally will not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Consideration of the constitutional issue is not necessary in this case because the district court considered the third Austin factor in revoking J.C.B.’s EJJ probation.  See State v. Hoyt, 304 N.W.2d 884, 888 (Minn. 1981).

            Affirmed.