1. When revoking a probationer's probation, the district court must designate the specific condition of probation violated that supports the revocation.
2. In order to support a probation revocation, the condition alleged to have been violated must be a condition of probation that has in fact been imposed by the district court.
3. The district court abused its discretion when it revoked the defendant's probation based on a condition of probation that had not actually been imposed.
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Page, J.
Appellant Francisco Ornelas challenges the revocation of his probation on a 1994 third-degree criminal sexual conduct conviction. Ornelas's probation was revoked for having unsupervised contact with a minor. The question presented is whether the district court abused its discretion when it revoked Ornelas's probation and executed the 48-month prison sentence imposed but stayed at the time of the conviction. A divided court of appeals affirmed the district court. State v. Ornelas, No. C4-02-1693, 2003 WL 1818011, at *2 (Minn. App. Apr. 8, 2003). In this appeal, Ornelas argues that the district court abused its discretion when it revoked his probation because: (1) having no contact with individuals under 18 years of age was never made a condition of his probation on his criminal sexual conduct conviction;*fn1 (2) assuming that the no-contact provision was a condition of probation, the violation was unintentional; (3) assuming that the no-contact provision was a condition of probation, the violation was excusable; (4) the district court impermissibly based his probation revocation on an accumulation of technical violations; and (5) the policies favoring probation outweigh the need for confinement. We reverse.
During the early morning hours of July 30, 1994, Ornelas sexually assaulted an adult female co-worker by digitally penetrating her vagina without consent. Ornelas was intoxicated at the time of the assault. The state charged Ornelas with first- and third-degree criminal sexual conduct. On December 5, 1994, Ornelas pleaded guilty to third-degree criminal sexual conduct in exchange for the dismissal of the first-degree charge and a recommendation by the state that he receive a stayed sentence. The court sentenced Ornelas to a stayed 48-month prison term and 15 years' supervised probation. As part of the 15-year supervised probationary period, the court imposed the following conditions in writing: (1) that Ornelas was subject to all rules and regulations of the Department of Corrections; (2) that he remain law abiding and of good behavior; (3) that he serve one year in the county jail; (4) that he pay various fines; (5) that he complete a Rule 25 chemical dependency evaluation and follow all recommendations, including all aftercare, and provide collateral contacts; (6) that he follow the recommendations of the sex offender evaluation, including all aftercare; (7) that he have no contact with the victim; (8) that he abstain from the use of alcohol and controlled substances; (9) that he not enter any establishment serving or selling alcohol; (10) that he submit to random drug and alcohol testing; (11) that he have no same or similar offenses; (12) that he complete his GED while in jail; and (13) that he provide a DNA sample and register as a sex offender. A requirement that Ornelas have no contact with individuals under the age of 18 was not included as one of the conditions imposed.
Ornelas's annual progress reports dated April 16, 1996, and January 13, 1997, recommended that probation be continued and listed the same conditions as imposed at sentencing. In June of 1997, Ornelas admitted to violating his probation by consuming alcohol. The court reinstated Ornelas's probation but ordered him to serve 45 days in jail, complete 20 hours of community service at an alcohol recovery center, and pay certain outstanding financial obligations out of his next paycheck. The court ordered that all other terms and conditions of probation remain the same.
Ornelas's annual progress report dated December 11, 1997, again recommended that probation be continued and listed the same conditions as imposed at sentencing. In January of 2000, Ornelas admitted to violating his probation again by consuming alcohol. The court reinstated Ornelas's probation, this time ordering him to serve 60 days in jail with all other conditions of probation remaining the same.
On the evening of December 23, 2000, Ornelas's probation agent made a spot visit to Ornelas's home. The agent made the visit based on a call from a concerned person who alleged that Ornelas was using alcohol and drugs and that Ornelas's girlfriend's 14-year-old daughter L.H. was staying at the residence.*fn2 Ornelas was at home and the agent obtained permission from Ornelas's girlfriend to look around the house. The agent found a gun case containing a 30/30 rifle and ammunition in Ornelas's bedroom. Ornelas admitted the gun was his and admitted to consuming alcohol.
The state charged Ornelas with the felony offense of being a felon in possession of a firearm and violating his probation. On January 31, 2001, he pleaded guilty to a gross misdemeanor firearms possession offense and admitted that he violated his probation by possessing a firearm and consuming alcohol. On February 22, 2001, the probation agent filed a uniform case report addendum. The report recommended that the court reinstate Ornelas's probation in the criminal sexual conduct case under the same terms and conditions. The report also recommended that the court impose the following additional terms: (1) that Ornelas receive credit for 40 days served in jail; (2) that Ornelas follow the recommendation of the ...