Opinion
No. C4-02-866.
Filed October 15, 2002.
Appeal from the District Court, St. Louis County, File No. K997300637.
Mike Hatch, Attorney General, and Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, (for respondent)
John M. Stuart, Minnesota Public Defender, Jodie L. Carlson, Assistant State Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Michael Stanley Hecimovich appeals from the district court's order extending his probation by three years for failure to complete restitution payments. Because appellant has failed to pay his court-ordered restitution, we affirm the district court's order, but we modify the extension of appellant's probation to one year.
FACTS
On June 25, 1997, respondent State of Minnesota charged appellant with second-degree arson, in violation of Minn. Stat. § 609.562 (1996), and first-degree tampering with a witness, in violation of Minn. Stat. § 609.498, subd. 1(f) (1996). On May 9, 1999, appellant pleaded guilty to the charge of tampering with a witness. The state dismissed the arson charge. Appellant's petition to enter a plea of guilty acknowledged that he would be liable for restitution.
The district court sentenced appellant to the commissioner of corrections for 18 months. The court stayed execution of sentence for three years and placed appellant on probation for three years. As a condition of probation, the court ordered appellant to serve one year at the Northeast Regional Corrections Center. The court also ordered appellant to pay restitution. Appellant signed a restitution agreement on April 29, 1999, agreeing to pay restitution in the amount of $6,655.71. The agreement provided that appellant had to make monthly payments in the amount of $50 and was to have paid the full amount by April 25, 2002, the expiration of his probation.
On March 15, 2002, appellant's probation officer submitted a report to the court indicating that appellant "has complied with all of the conditions of probation with the exception that he has a balance of $2,805.71 on his restitution." The probation officer recommended that appellant remain on probation for an additional three years so that appellant would continue to make payments.
On April 5, 2002, at a sentence-review hearing, appellant's attorney requested that the court discharge appellant from probation and enter a civil money judgment for the remainder of the restitution that he owed. The district court denied this request and ordered appellant to remain on probation for three additional years but noted that the court would discharge appellant early if he paid off the balance owed for restitution. This appeal followed.
DECISION
Appellant contends that the district court erred by extending his probation because Minn. Stat. § 609.135, subd. 2(g) (2000), which authorizes the courts to extend a defendant's probationary term, does not apply to him. Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).
Pursuant to Minn. Stat. § 609.135, subd. 2(g), a court may extend a defendant's term of probation for up to one year if, after a hearing, it finds that:
(1) the defendant has not paid court-ordered restitution or a fine in accordance with the payment schedule or structure; and
(2) the defendant is likely to not pay the restitution or fine the defendant owes before the term of probation expires.
Appellant asserts that Minn. Stat. § 609.135, subd. 2(g), does not apply to him because he made his monthly payments as required. The district court acknowledged that appellant made his payments on time, but the court also found that appellant had failed to pay the entire balance of his restitution. Despite the requirement of a minimum payment of $50 per month, appellant knew that payment of the full amount of restitution was due before his probation expired. By signing the restitution agreement, appellant acknowledged that restitution "must be paid in full" before the court could discharge him from probation. Because appellant failed to complete his restitution payments in accordance with the structure established by the court, the district court had authority to extend appellant's probation pursuant to Minn. Stat. § 609.135, subd. 2(g).
In this case, however, the district court erred by extending appellant's probation by three years because a court may only extend probation for one year at a time. The statute permits a court to extend a defendant's term of probation" for up to one year." Minn. Stat. § 609.135, subd. 2(g) (emphasis added). As a result, we affirm the district court's order extending appellant's probation but we modify the term of extension to one year.
If, after one year, appellant has still not completed his restitution payments, the district court may extend his probation for an additional year. See Minn. Stat. § 609.135, subd. 2(g) ("This one-year extension of probation for failure to pay restitution or a fine may be extended by the court for up to one additional year if the court finds * * * that the defendant still has not paid the court-ordered restitution * * *.")