State v. Barrientos, Minn.Ct.App., 7/9/2012. Ms. Barrientos pleaded guilty to second degree burglary. The trial court stayed execution of a 23 months sentence and placed her on probation for five years, even though it could have set the probation period at ten years. Among other conditions of probation, the court ordered her to pay restitution.
As the five year term of probation neared, the state asked that Ms. Barrientos’ probation be extended for an additional five years because she had not paid the ordered restitution. The court first granted this request, thus extending Ms. Barrientos’ term of probation to the maximum allowable period, ten years. However, on her request, the court amended that order to extend the probation period for only one year. The state appealed.
And lost. The court of appeals looks at the restitution statute and finds clear support for the trial court’s decision. Minn.Stat. 609.135, subd. 2(g) authorizes the trial court to extend the term of probation for failure to pay restitution, but only in one year increments.
Notwithstanding the maximum periods specified for stays of sentences under paragraphs (a) to (f), a court may extend a defendant’s term of probation for up to one year if it finds, at a hearing conducted under subdivision 1a, that: (1) the defendant has not paid court-ordered restitution in accordance with the payment schedule or structure; and (2) the defendant is likely to not pay the restitution the defendant owes before the term of probation expires.
The same statute authorizes the district court to do this one more time, for a total extension of two years. Period. Done. The court of appeals upholds the trial court.
The court of appeals does note that had the trial court initially set the term of probation at the maximum allowed, ten years, the trial court likely had the authority to extend the term of probation another two years for failure to pay restitution. That question was not before them so this was just a little hint.
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