A05-1629

State of Minnesota,

Respondent,

vs.

George Joseph Stenger, II,

Appellant.

Filed July 18, 2006

Remanded

Hudson, Judge

Chisago County District Court

File No. CR-05-1781

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

Katherine Johnson, Chisago County Attorney, Joseph R. Cox, Assistant Chisago County Attorney, 313 North Main Street, Room 373, Center City, Minnesota 55012 (for respondent)

Shane C. Perry, Perry, Perry & Perry, Parkdale 1, Suite 270, 5401 Gamble Drive, Minneapolis, Minnesota 55416 (for appellant)

Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

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

HUDSON, Judge

On appeal from a pretrial order setting bail in a violation-of-harassment-order case, appellant argues that the district court erred by imposing nonmonetary conditions that appellant not possess or use drugs or alcohol and that he not possess firearms. Because the record lacks adequate findings to support the conditions, we remand for the district court to make findings, if they exist, to support the conditions or to reset bail conditions consistent with Minn. R. Crim. P. 6.02.

FACTS

Appellant George Joseph Stenger, II, was charged with two counts of violation of harassment restraining order (HRO), in violation of Minn. Stat. § 609.748, subd. 6(b) (2004). At appellant’s arraignment, the district court set bail at $500 and ordered appellant to abide by the HRO. On August 2, 2005, appellant posted a $500 appearance bond and was released.

At the August 8, 2005 pretrial hearing, the district court imposed as additional nonmonetary conditions of release that appellant (1) shall not possess or consume alcoholic beverages or any mood-altering drugs not prescribed by a licensed physician; (2) shall submit to alcohol tests or urinalysis at the request of any law-enforcement or probation officer; and (3) shall not possess firearms. These nonmonetary conditions of release are on appeal.

D E C I S I O N

Appellant argues that the district court abused its discretion by imposing the nonmonetary bail conditions. The district court has discretion in setting the appropriate amount of bail, and its decision is reviewed under a clear-abuse-of-discretion standard. State v. Chamblee, 407 N.W.2d 721, 722 (Minn. App. 1987). The issues raised by appellant, however, involve an interpretation of the rules of criminal procedure, which is reviewed de novo. State v. Nerz, 587 N.W.2d 23, 24–25 (Minn. 1998).

Minn. R. Crim. P. 6.02, subd. 1, states thata defendant shall be released pending further proceedings on (1) personal recognizance, (2) an order to appear, or (3) on an appearance bond in a specified amount. The rule further states that “the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release[.]” Minn. R. Crim. P. 6.02, subd. 1. But if a determination is made that such a release “will be inimical of public safety or will not reasonably assure the appearance of the person as required,” the court “shall, either in lieu of or in addition to the above methods of release, . . . impose any other condition deemed reasonably necessary to assure appearance as required[.]” Id. Further, Minn. R. Crim. P. 6.02, subd. 2, provides the court with factors to take into account when determining what conditions of release will reasonably assure such appearance. Those factors are:

[T]he nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, length of residence in the community, record of convictions, record of appearance at court proceedings or flight to avoid prosecution, and the safety of any other person or of the community.

Minn. R. Crim. P. 6.02, subd. 2. The conditions of release must be “pertinent to the offense charged and to assuring the defendant’s presence[.]” State v. Dillon, 529 N.W.2d 387, 394 (Minn. App. 1995).

At appellant’s arraignment, the district court set bail in the amount of $500 and ordered that appellant abide by the HRO. Appellant was released on a $500 bond on August 2, 2005. While appellant does not contest the amount of bail, we note that the district court did not err in imposing monetary bail by which appellant could obtain pretrial release without complying with nonmonetary conditions.[1] But at the pretrial hearing on August 8, 2005, the district court ordered, as further conditions of release, that: appellant must not possess or consume drugs or alcohol; appellant must submit to urinalysis upon request; and appellant must not possess firearms. Appellant argues that the record lacks any evidence that drugs or alcohol were involved or that appellant was in possession of a firearm when the violations occurred. The district court did not make a finding that appellant’s release on bond alone would be inimical to public safety or would not reasonably assure appellant’s appearance at future proceedings. Further, there is nothing in the record to show that the district court took the factors in rule 6.02, subd. 2, into consideration when the nonmonetary conditions of release were imposed. This court, however, is not in a position to determine whether any factors exist to support the imposition of the nonmonetary release conditions. See In re Welfare of M.D.O., 462 N.W.2d 370, 374–75 (Minn. 1990) (stating that it is not the role of the court of appeals to find facts). When nonmonetary bail conditions are contested, as they are here, it is imperative that the district court make specific findings to show how the conditions will ensure appellant’s appearance at future proceedings and ensure public safety. Because the record lacks adequate findings to support the conditions, the matter is remanded to the district court to make findings, if there is a basis for them, to support the conditions or to reset bail conditions consistent with rule 6.02.

Remanded.

[1] Likewise, appellant does not contest the order that he abide by the existing HRO.