Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

Appellant Darlene Jones argues the district court abused its discretion by revoking her probation. We affirm.

When considering whether revocation is appropriate, the supreme court has cautioned courts not to revoke as "a reflexive reaction to an accumulation of technical violations." Austin, 295 N.W.2d at 251 (citation omitted). The district court must balance "the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety." Id. at 250 (citation omitted). The American Bar Association Standards for Criminal Justice, quoted by the supreme court in Austin, state that revocation is appropriate when "the offender is in need of correctional treatment which can most effectively be provided if he is confined." A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970), quoted in Austin, 295 N.W.2d at 251. The Minnesota Sentencing Guidelines further provide that revocation of a stayed prison sentence is justified when, "[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating conditions of the stay." Minn. Sent. Guidelines III.B.

Here, the district court, on the record, designated which probation conditions appellant violated, found that the violations were intentional, and found that the need for confinement outweighed the policies favoring probation. While the first two findings are undisputed, appellant claims the record does not support the last finding. We disagree.

The record provides ample support for the district court's finding that the need for confinement outweighs the policies favoring probation. Appellant has continually violated the conditions of her probation. She has missed appointments with her probation officer, tested positive for drugs, moved without authorization, failed to keep her whereabouts known, and left a treatment program without authorization. In addition, the last treatment program released her a day after she entered the program because of her negative attitude. Further, most of appellant's accomplishments have occurred while she was incarcerated. Appellant's behavior demonstrates that a correctional institution is the only place the state can insure that appellant can effectively receive the rehabilitative treatment she needs.

Appellant claims the state did not prove by clear and convincing evidence that the drug test results were from the drug test she took in July 1996. We disagree. Appellant's claim is based on the initials that appeared on the test report form. The test form, which was signed by appellant's probation officer, listed the subject's name as "D.J." and the subject's number as "92080502." The lab reporting form indicated the specimen was taken the same day, and listed the probation officer's name, but referred to the subject as "P.J." and the subject's number as "C92080502." Despite the apparent technical error, these facts are sufficient to meet the state's burden. See Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978) (clear and convincing evidence is evidence that demonstrates the truth of the facts asserted is highly probable). Further, appellant admitted that she has relapsed into abusing drugs. Her admission, and the fact she gave birth to a drug-addicted child five months after the drug test, demonstrate that appellant was using drugs again. See Minn. R. Crim. P. 27.04, subd. 3(3) (finding of violation of probation condition can be based on probationer's admission of such violation).

Based on the record, we conclude the district court did not err in revoking appellant's probation. We decline to address appellant's argument that she should be allowed to waive the one-year incarceration limit of Minn. Stat. § 609.135, subd. 4 (1996), because: (1) the issue of waiver was not raised below or addressed by the district court. See In re Magnus, 436 N.W.2d 821, 823 (Minn. App. 1989) (review necessarily limited to issues that the record establishes were actually raised in, and decided by, the trial court); and (2) this issue is moot because we have determined the district court's decision to revoke appellant's probation was not an abuse of its discretion.

Affirmed.