Summary
In Davisson, the probationer was in the process of complying with the requirement that he undergo a psychological evaluation when the state alleged that he had violated his probation.
Summary of this case from State v. DavisOpinion
No. C3-98-1064.
Filed October 27, 1998.
Appeal from the District Court, Hennepin County, File No. 95097323.
Hubert H. Humphrey, III, Minnesota Attorney General, and
Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant St. Louis Park City Attorney, (for respondent)
Steven J. Meshbesher, Sherri D. Hawley, Meshbesher Associates, P.A., (for appellant)
Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Charles Allen Davisson argues on appeal that the district court abused its discretion by revoking his stay of adjudication without finding that his alleged violation of a condition of the stay was intentional or inexcusable. We reverse.
FACTS
After a trial on stipulated facts on September 9, 1996, the district court entered its order on September 19, 1996 finding appellant guilty of gross misdemeanor stalking in violation of Minn. Stat. § 609.749, subd. 2 (1996), and directing that judgment be entered accordingly.
Despite its order for entry of judgment, the court stayed adjudication for two years and placed appellant on informal, unsupervised probation, subject to certain conditions. One condition was that appellant would "[c]omplete a psychological evaluation and follow any recommendations for treatment or therapy." The court set no time limit for the performance of this condition.
On January 22, 1998, the sentencing judge wrote to appellant's attorney and asked for the results of the psychological examination. On February 23, 1998, appellant's attorney replied, indicating that appellant had met with a psychologist on February 12, 1998, and that the psychologist had requested additional information and a three-week period to prepare her report. The prosecutor wrote to the court on February 25, 1998, alleging that appellant's delay in obtaining the psychological evaluation violated the terms of his probation, and requesting a violation hearing.
The court held a violation hearing on March 18, 1998. Appellant testified that no one had given him a deadline for completing the psychological evaluation and that, after receiving the court's letter, he began the examination process by undergoing two tests and an extensive interview with a therapist. He testified that he had decided to consult with another therapist and was scheduled to meet with him on April 9, 1998.
The court found that appellant had violated his probation "by not completing a psychological evaluation and following the recommendation of said evaluation." The court then revoked the stay of adjudication, and imposed and stayed the execution of a jail sentence and a fine.
DECISION
When a trial court stays adjudication of guilt in a criminal case, it has discretion to place the defendant on probation subject to reasonable conditions. State v. Krotzer , 548 N.W.2d 252, 255-56 (Minn. 1996). That court also has broad discretion in determining whether there is sufficient evidence to revoke probation. State v. Austin , 295 N.W.2d 246, 249 (Minn. 1980). Reversal is appropriate only if the trial court clearly abused its discretion. Id. at 249-50.
Due process prohibits the revocation of probation unless the probationer had specific prior warning or notice of the conditions of his probation and the court designates the specific condition that the probationer violated. Id. at 250-51. The violation must be proved by clear and convincing evidence before the court may revoke probation. State v. Moot , 398 N.W.2d 21, 23 (Minn.App. 1986), review denied (Minn. February 13, 1987).
Austin , 295 N.W.2d at 250, requires three findings as prerequisite to revoking probation. The trial court here made only one of those findings, but the dispositive issue is the more fundamental one of notice.
The trial court gave neither a specific deadline nor a guideline — such as "promptly," "immediately," "without delay," or "within 60 days" — for the performance of the probationary condition of undergoing a psychological evaluation. Without a deadline or some guideline, the evidence does not clearly and convincingly establish that appellant had notice or warning of when his performance was due. Although it might be inferred that appellant necessarily understood performance to be due within a reasonable time, or at least before the condition became impossible to satisfy or was somehow rendered moot, the evidence does not clearly and convincingly establish the occurrence of any of those time frames. Appellant had six months remaining on probation at the time of the revocation. It cannot be said with any support in the record that performance was clearly due as of the revocation date. It is equally without factual support, and, therefore, speculative, to suggest that performance within the final six months would have been unreasonable, impossible or moot.
We hold that, under these circumstances, the trial court abused its discretion in revoking appellant's stay of adjudication.