This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2089

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Scott James,

Appellant.

 

 

Filed September 25, 2007

Reversed and remanded

Toussaint, Chief Judge

 

Benton County District Court

File No. K4-02-1747

 

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

 

Robert J. Raupp, Benton County Attorney, Benton County Courts Facility, 615 Highway 23, Post Office Box 189, Foley, MN 56329 (for respondent)

 

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Jeffrey Scott James challenges the order revoking his probation imposed for felony DWI, arguing that the district court failed to make adequate findings on the factors established for probation revocation by  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).  Because we agree that the findings are inadequate, we reverse and remand.[1]

D E C I S I O N

            “[B]efore probation [may] be revoked, the [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). The district court may meet this requirement by “stating its findings and reasons on the record, which, when reduced to a transcript, is sufficient to permit review.” State v. Modtland, 695 N.W.2d 602, 608 n.4 (Minn. 2005). “[W]hether a [district] court has made the findings required under Austin presents a question of law, which is subject to do novo review.”  Id.at 605.

            The district court made no written findings.  The hearing transcript indicates that the district court, after establishing that appellant waived his right to a hearing, asked him what happened.  Appellant said:

I found some alcohol in my spare bedroom when I was cleaning it, and I made an attempt to dump it out, and then I smelled it and end up I drank it.

 

What landed me in the hospital was I have a neighbor across the street that’s dying from cancer, and I was helping him out. . . . [H]e drank, and it did not bother me at first.   I was on Campral and ran out of my med, and I brought him a picnic table, and he was drinking and I started drinking.  I’m kind of vulnerable that way, and I just –I consumed too much.  And – and I started to walk home, and I fell and dislocated my shoulder, and . . .they took me to the hospital and put my arm back in place and then detoxified me.

 

The district court said, “That’s a sufficient admission for the Court on all of the claimed violations here.”

            The state’s attorney then told the district court that appellant had failed to sign releases of information so his probation agent could verify the reason he was hospitalized and get information on whether he was following up with his mental health treatment and that appellant had also not provided verification of AA attendance.  Appellant agreed that he did not get the AA attendance slips to his probation officer, that he had not provided her with releases so she could check on his medical and mental health treatment, and that he became confused in taking his medication.

            The district court told appellant that he was

committed to the Commissioner of Corrections for 42 months, and we stayed that on the conditions that you do all of these things that you’ve been telling me you haven’t done beyond a slip occasionally, which happens to people.  You just haven’t been cooperating here at all.  I understand you’ve got problems, and they are major problems to deal with; but from the standpoint of public safety, I can’t continue to leave you sitting around not doing the things you’re supposed to do and not working with your agent, so I’m going to execute your sentence.

 

The issue is whether these remarks meet the Austin standards for findings.  Modtland indicates that they do not. Arguably, the district court’s statement that appellant’s admission was “sufficient . . . for the Court on all of the claimed violations” could be construed as a finding designating the specific conditions that were violated and thus fulfill the first Austin criterion.  But here, as in Modtland, the district court did not address whether the violation was involuntary or inexcusable or whether the need for appellant’s confinement outweighs the policies favoring probation.  Modtland is explicit on the need for findings addressing each Austin factor.

The requirement that courts make findings under the Austin factors assures that district court judges will create thorough, fact-specific records setting forth their reasons for revoking probation.  We emphasize that, in making the three Austin findings, courts are not charged with merely conforming to procedural requirements; rather, courts must seek to convey their substantive reasons for revocation and the evidence relied upon. . . . thus, courts should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.

 

695 N.W.2d at 608.  As the supreme court did in Modtland, we “reverse and remand for a new hearing in which findings are to be made on the record in accordance with the principles set forth in this decision.”  Id. 

Reversed and remanded.