Opinion
No. CX-98-2292.
Filed April 27, 1999.
Appeal from the District Court, Clay County, File No. K1-98-2176.
Mike Hatch, Attorney General, and Lisa N. Borgen, Clay County Attorney, Christopher C. Myers, Chief Assistant Clay County Attorney, (for respondent)
John Moosbrugger, Chief Public Defender, Jose J. Monsivais, Assistant Public Defender, (for appellant)
Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Foley, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This appeal is from a pretrial order setting bail. See Minn.R.Crim.P. 28.02, subd. 2(1). Appellant Timothy Raddatz is charged with a gross misdemeanor, failing to properly register as a sex offender. See Minn. Stat. § 243.166, subds. 3(b), 4(1)(c)(2) (1998). Because we conclude that Raddatz has waived any constitutional challenge to "cash only bail," we affirm.
FACTS
After appellant Timothy Raddatz was arrested for trespassing and theft in Moorhead, police discovered that he had failed to register with the Sex Offender Registration Program following an earlier juvenile adjudication for a sex offense. As a result, the misdemeanor trespassing and theft charges were dismissed by the state, and a complaint charging gross misdemeanor failure to register was filed.
At Raddatz's first appearance on the gross misdemeanor complaint, the state requested that bail be set at $10,000 cash, noting a pending investigation of a reported incident of solicitation. Defense counsel argued that $6,000 was the maximum bail that could be imposed under the bail statute. He argued that the state did not have enough evidence to charge any new sex offense and that the gross misdemeanor failure to register was a very uncertain charge. Defense counsel asked that bail be set at $3,000.
The court agreed that $6,000 was the maximum bail and required that it be posted in the form of cash. Defense counsel objected that "cash only" bail was "unreasonable," but the court declined to alter its ruling.
DECISION
At his first appearance, appellant challenged the $6,000 "cash only" bail as "unreasonable," but did not claim that "cash only" bail is unconstitutional. There is no record that appellant brought a motion to reduce bail in which he argued the constitutional issue.
This court generally will not consider an issue raised for the first time on appeal, even a constitutional issue, unless interests of justice require and neither party would be unfairly surprised. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Defense counsel argued only that the bail was "unreasonable."
Appellant could have filed a motion for reduction or modification of bail raising the constitutional challenge. Such motions may be freely made under the rules. See Minn.R.Crim.P. 6.02, subd. 4 (court, upon motion, may review the conditions of release). Though not precedential, we recently issued an unpublished opinion rejecting a claim that "cash only" bail violates the state constitution. State v. Brooks , No. C1-98-2388 (Minn.App. Mar. 23, 1999). The interests of justice do not require that we overlook appellant's waiver and reach that issue in this appeal.