This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1561

 

State of Minnesota,
Respondent,

vs.

Jeremy S. Suedel,
Appellant.

 

Filed July 11, 2006

Reversed and remanded

Stoneburner, Judge

 

Polk County District Court

File No. K4031794

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Gregory Widseth, Polk County Attorney, Suite 101, 223 South Seventh Street, Crookston, MN 56716 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the revocation of his probation.  Because the district court did not make the findings required under State v. Modtland, 695 N.W.2d 602 (Minn. 2005), to revoke appellant’s probation, we reverse and remand.

FACTS

            Appellant Jeremy S. Suedel pleaded guilty to first-degree assault.  Pursuant to a plea agreement, Suedel was sentenced to 115 months, execution of the sentence was stayed, and Suedel was placed on probation for 25 years with conditions.  The sentence represented a downward dispositional departure from the sentencing guidelines.      Subsequently, Suedel was charged with violating his probation by failing to abstain from the use of chemicals, failing to maintain contact with his probation agent, failing to follow the recommendations of the chemical use assessment, and failing to remain law abiding.  At a probation revocation hearing, Suedel admitted the violations, including his use of marijuana and conviction of criminal mischief in North Dakota.  At the probation revocation hearing, the district court did not make any findings with respect to the admitted violations and continued the matter for disposition by the sentencing court. 

            An updated chemical use assessment and psychological evaluation were ordered in the interim.  The updated chemical use assessment resulted in a recommendation for extended inpatient chemical dependency treatment.  At the disposition hearing, Suedel requested that probation be continued, with programming for chemical use and mental health as additional conditions.  The district court found that appellant had violated the terms of his probation and, without making any additional findings, executed Suedel’s sentence of 115 months.  This appeal followed.

D E C I S I O N

            Generally, a district 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).  Before revoking a defendant’s probation, a district court must make three findings: 

First, courts must designate the specific condition or conditions of probation the defendant has violated.  Second, courts must find the violation was inexcusable or intentional.  Once a court has made findings that a violation has occurred and has found that the violation was either intentional or inexcusable, the court must proceed to the third Austin factor and determine whether the need for confinement outweighs the policies favoring probation.

 

State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (applying Austin, 295 N.W.2d at 250) (citations omitted). 

Prior to Modtland, this court interpreted Austin to permit an exception to the requirement that the district court make findings on the Austin factors.  Id. at 606.  Under this exception, when the district court failed to make the required findings, the revocation would be affirmed if the reviewing court found that sufficient evidence in the record supported revocation.  See, e.g., State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995); see also Austin, 295 N.W.2d at 250 (affirming the revocation of probation despite the fact that the district court made no finding regarding the condition of probation that the defendant had violated).  Modtland abrogated this exception.  695 N.W.2d at 608. 

            Modtland was decided three days after Suedel’s probation was revoked, but we apply the holding to Suedel’s case on direct appeal even though the district court did not have the benefit of the supreme court’s decision in Modtland.  See State v. Lewis,656 N.W.2d 535, 538 (Minn. 2003) (noting that cases pending on direct appeal are entitled to the application of the rule of law announced in an opinion of the supreme court).  Whether a district court has made the required findings is a question of law reviewed de novo.  Modtland at 605.

            The district court appropriately found that Suedel violated specific conditions of his probation but made no findings on the second and third Austin factors.  We therefore reverse the district court’s revocation of Suedel’s probation and remand[1] for findings on the second and third Austin factors as required by Modtland. 

Reversed and remanded.