This opinion will be unpublished and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

C9-01-643

 

 

State of Minnesota,

Respondent,

 

vs.

 

Donald Wallace Butler,

Appellant.

 

 

Filed August 7, 2001

Affirmed

Schumacher, Judge

 

Dakota County District Court

File No. K8002303

 

 

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

 

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Donald Wallace Butler, 1101 Linden Lane, #139305, Faribault, MN 55021-6400 (pro se appellant)

 

 

            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

            Appellant Donald Wallace Butler contends that (1) the district court abused its discretion by revoking probation without sufficient evidence; and (2) his jury trial and due process rights were violated by the district court's decision to hold the probation revocation hearing prior to a trial on the disorderly conduct charge.  Butler did not request or file a transcript of the testimony presented at the revocation hearing.  We affirm.

FACTS

            On December 12, 2000, Butler pleaded guilty to the charge of fleeing a peace officer in a motor vehicle.  Based on Butler's criminal history score of eight, the sentencing guidelines provided for 18 to 21 months in prison.  At the sentencing hearing on January 19, 2001, the state asked the court to sentence Butler to 18 months.  The court departed downward dispositionally and stayed execution of an 18-month sentence, placing Butler on probation for three years.  As conditions of the probation, Butler was ordered to refrain from consuming alcohol or illegal drugs and to follow the rules and regulations of the probation department. 

On January 20, 2001, Butler was taken into custody and charged with disorderly conduct.  On March 2, 2001, an evidentiary hearing was held in which the state presented the testimony of two police officers.  The court found as a result of that testimony that the state proved by clear and convincing evidence that Butler had consumed alcohol and had disturbed the peace.  The court found that the violation was intentional and inexcusable and that the need for confinement outweighed policies favoring probation.  The court revoked probation and executed Butler's 18-month sentence.  Butler did not request a transcript of the hearing.

The city prosecutor later dismissed the disorderly conduct charge, stating

I am dismissing this ticket not because I believe the officer made a mistake in issuing it.  I am dismissing the ticket because I do not believe it warrants spending taxpayer money to bring Mr. Butler down from St. Cloud when, if he was convicted, he will more than likely get credit for time served in St. Cloud and incur no additional consequences.

 

D E C I S I O N

            1.         Butler contends the court abused its discretion by revoking probation without sufficient evidence.  We are unable to address the sufficiency of the evidence claim, however, because Butler did not request or file a transcript of the testimony presented at the revocation hearing.  See Hoagland v. State, 518 N.W.2d 531, 534 (Minn. 1994) (reviewing court cannot consider sufficiency of evidence issue unless provided with trial transcript); State v. Heithecker, 395 N.W.2d 382, 383 (Minn. App. 1986) (same).

            2.         Butler additionally contends that his right to a jury trial and due process rights were violated because the district court held the probation revocation hearing prior to a trial on the disorderly conduct charge.  But Minn. R. Crim. P. 27.04, subd. 2(4) provides:

If the probationer has allegedly violated a condition of probation by commission of a crime, the court may postpone the revocation hearing pending disposition of the criminal case whether or not the probationer is in custody.

 

            In State v. Phabsomphou, 530 N.W.2d 876 (Minn. App. 1995), review denied (Minn. June 29, 1995), the appellant similarly claimed that his rights to a jury trial and to due process were abrogated by the district court's decision to hold his probation revocation hearing prior to the criminal trial on the new charges that formed the basis for the revocation of probation.  Id. at 877.  The court in Phabsomphou noted that the word "may" in the rule rather than the word "shall" indicated that the drafters intended to allow the district court discretion to decide when the revocation hearing would be held.  Id. at 878.  Relying on the language of the rule, the court concluded:

If the Minnesota Supreme Court had not wanted to confer discretion upon the district court, it would have made postponement of the revocation hearing mandatory.  The rule now includes the word "may"; the decision to substitute "shall" must be made in the proper forum.

 

Id. at 879.  The court acknowledged that "where new charges form the sole basis of possible revocation, strong policy considerations favor delaying the revocation hearing until after resolution of those new charges."  Id. (footnote omitted).  Here, however, the court revoked probation based upon both the disorderly conduct charge and the evidence that Butler was using alcohol.  The district court did not violate Butler's constitutional rights by holding the revocation hearing prior to the resolution of the new criminal charge.

            Affirmed.