District Court Has the Authority to Extend the Term of Restitution Up to Statutory Maximum For Failure to Pay Restitution

State v. Barrientos, Minn.S.Ct., 9/25/2013.  Ms. Barrientos pleaded guilty to second degree burglary, which carries a statutory maximum sentence of ten years.  The district court stayed execution of sentence and placed Ms. Barrientos on probation for five years.  Among other conditions, the court ordered her to pay some twenty grand in restitution.  As the five year mark approached, Ms. Barrientos had not paid much of the restitution so the state asked the court to extend her probation to the maximum allowed, ten years.  At first, the district court granted that request but then thought better of it, concluding that Minn.Stat. 609.135, subd. 2(g) limited such an extension to two one year extensions.  The state appealed this ruling, but the court of appeals upheld the district court.

The Supreme Court, Justice Wright writing for a five member majority (Justice Lillehaug not participating and Justice Page dissenting), overturns the court of appeals.  Justice Wright said that Minn.Stat. 609.135, grants the district court broad powers over the length and terms of probation.  Indeed, the only limitation on the trial judge under subdivision 1a is that the term of probation cannot exceed the statutory maximum sentence.  Subdivision 1a addresses the case of a defendant who has failed to pay restitution.  Provided that the procedural requirements of the subdivision are met the court may “take appropriate action, including action under subdivision 2, paragraph (g), before the defendant’s term of probation expires.  Under this reading, action under subdivision 2, paragraph (g) is only one of several options, which includes the broad, general powers to set the term of probation.

Justice Wright, however, is actually saying much more than this.  The Court re-wrights paragraph (g) narrowly – very narrowly -  by limiting its application to extensions of the term of probation that exceed the statutory maximum.  The court acknowledges that this creates an Apprendi/Blakley problem but that’s for another day because here, the requested five year extension is within that statutory maximum. (Just what that Apprendi/Blakley trial would look like and just what the state would have to prove is also not addressed.)  Implicitly, however, the court is pretty strongly giving the green light to extensions of the term of probation, well, forever in the right circumstances, provided a deadbeat probationer is given a jury trial before it happens.  The court gives passing lip service to the district court’s ability to refer the restitution to collections or reduce it a judgment.  Otherwise, the court’s opinion leaves the putative probationer with the option either to suffer probation forever or to execute the sentence.  Debtor’s prison.

Justice Page dissented, arguing that subdivision 2(g) places a limit on the district court’s power to extend probation for failure to pay restitution.