(dissenting).
I respectfully dissent. Appellant, Timothy Boutin, was charged with two counts of felony criminal sexual conduct in the third degree in violation of Minn.Stat. § 609.344, subd. 1(c) (1998), one count of felony assault in the third degree in violation of Minn.Stat. § 609.223 (1998), and one count of misdemeanor assault in the fifth degree in violation of Minn.Stat. § 609.224, subd. 1(1) or (2) (1998). Boutin pleaded guilty to the single count of third-degree assault and the other charges against him were dismissed.
The record is clear that at the time he entered his guilty plea, Boutin did not admit that he committed felony criminal sexual conduct and he makes no such admission on appeal. He did admit to the police that he had sexual intercourse with the complainant on both the evening and the morning in question, even though the complainant did not want to have intercourse. In his statement to the police, he admitted he was guilty of abuse, but adamantly denied he was guilty of criminal sexual conduct. When entering his guilty plea, Boutin agreed that he “had some sexual relations” with the complainant later that evening and early the next morning and that the court could take this fact into account when sentencing him for assault.
Boutin was sentenced on May 12, 1995 to 40 months in prison, an upward departure from the presumptive sentence of 25 months. He was given credit for time served since his initial incarceration on November 15, 1994. When entering his guilty plea and at sentencing, Boutin agreed that there were two aggravating circumstances that permitted the upward departure; one, his past history of domestic abuse of the complainant, and two, his having sexual intercourse with the complainant after having assaulted and inflicted substantial bodily harm upon her.
At Boutin’s sentencing hearing and in its sentencing order, the court did not make a finding that the dismissed felony criminal sexual conduct charges arose out of the same set of circumstances as the third-degree assault conviction. Further, it is undisputed that the court did not inform Boutin that as a result of his guilty plea he would be required to register as a predatory sex offender under Minn.Stat. § 243.166. Rather, prior to his release from prison and as required by the statute, the Commissioner of Corrections informed Boutin that he would be required to register as a predatory sex offender.
The relevant part of the sex offender registration statute is set forth in the majority’s opinion. Under the statute, if Boutin is to be required to register as a predatory sex offender, he must have been convicted of either an offense enumerated in the statute or “another offense arising out of the same set of circumstances.” It appears that the reference to the same set of circumstances contained in the statute refers to the charged enumerated offense.
Third-degree assault, Minn.Stat. § 609.223, the offense for which Boutin was convicted, is not one of the offenses enumerated in section 243.166; but felony criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(c), the offense for which Boutin was initially charged and which charge was subsequently dismissed pursuant to Boutin’s plea, is an enumerated offense under section 243.166. Therefore, under the statute, if Boutin’s third-degree assault conviction arose out of the same set of circumstances as the dismissed criminal sexual conduct charges, Boutin is apparently subject to the registration requirements in section 243.166.
*720To this point, I am in agreement with the majority’s analysis, but it is here that our respective analytical routes diverge. Specifically, the majority finds or assumes that the district court made a finding that the charged, but later dismissed, offenses of felony criminal sexual conduct arose out of the same set of circumstances as the third-degree assault. My review of the record convinces me that the district court did not make a specific finding either that the criminal sexual conduct with which Boutin was charged occurred or that the events leading to this charged offense arose out of the same set of circumstances as the crime of conviction, third-degree assault. It seems fundamental to me that if the serious consequences of section 243.166 are to be imposed upon Boutin or anyone else, we must, at a minimum, require that the district court make such a specific finding. As an appellate judge, I am unwilling to make a factual finding so critical to the outcome of this case.
There should be no mistaking that, at the time of his assault upon the complainant, Boutin was a very unsympathetic person. He had a history of domestic abuse which found its roots in a jealous and possessive attitude towards the complainant. He had seriously mistreated her in a manner that a civilized society cannot countenance. On the night in question, he brutally assaulted the complainant by throwing her against a wall with such force that her head was severely lacerated and the wall was damaged. Later that same evening and early the next morning, he exploited the complainant’s vulnerable condition and on two occasions engaged in sexual relations with her. The fact that Boutin and complainant had “been together” for seven years, shared an apartment, were the parents of a four and one-half-year-old son, and both may have been intoxicated does not mitigate, much less excuse, such behavior.
Boutin’s behavior was such that he was charged with felony criminal sexual conduct and he was convicted of felony third-degree assault. But the former charges against him were dismissed pursuant to a plea agreement agreed to by the state. Moreover, as I previously stated, the record before us lacks any finding that an essential element of section 243.166 was either admitted or proved — that the felony third-degree assault of which Boutin stands convicted arose out of the same circumstances as the dismissed charges of felony criminal sexual conduct.
There is no doubt that the consequences of section 243.166 are serious and, because of these serious consequences, that procedural due process must be followed. The statute imposes on Boutin conditions that are rigorous and confining. Upon release from prison, Boutin must register with his corrections agent as soon as one is assigned. See Minn. Stat. § 243.166, subd. 3(a) (1998). If he does not have a corrections agent because he is not under supervision, then he must register with the local law enforcement agency in the community where he resides. See id. The form used for registration is labeled “Sex Offender Notification and Registration Form — State of Minnesota Statute 243.166.” The form is sent to (a) the Bureau of Criminal Apprehension (b) the offender’s corrections agent; (c) corrections CO records; and (d) the offender. A photograph and fingerprint card must be enclosed with the form. See Minn.Stat. § 243.166, sübd. 4(a) (1998). When signing the form, the offender must acknowledge that he understands the following:
I have been notified of my duty to register as a sex offender in accordance with Minn. Stat. 243.166. I understand that I must register for a period of ten years from the date that I was initially registered, or until my probation, supervised release, or conditional release period expires, whichever occurs later. If I was committed under Minn.Stat. 253B.185, the ten year registration period does not include the period of commitment. I understand that I must register all changes of address at least 5 days prior to changing residence, including moving to another state. I will make this notification in writing to my current Minnesota or Federal corrections agent, or, if I do not have a corrections agent, I must notify the law enforcement agency in the community in which I reside.
I understand that I am legally required to supply the requested data under Minn. *721Stat. 243.166. I also understand that failure to comply or to provide false information is a gross misdemeanor and any subsequent violation is a felony.
I understand that the information provided will be used for law enforcement purposes, and other purposes established by law. I also understand that it is a gross misdemeanor to provide false information in the completion of this form and I attest to its accuracy of information.
As the aforementioned acknowledgment sets forth, the offender must register for a minimum period of ten years from the date of the initial registration and must give notice every time his residency is changed, which notice must be in writing and given five days before each move. See Minn.Stat. § 243.166, subds. 3(b) and 6 (1998). If the offender fails to comply with the registration statute, he faces a substantial penalty — a gross misdemeanor conviction. See Minn. Stat. § 243.166, subd. 5 (1998). A second violation constitutes a felony. See id. Further, at the time Boutin was required to register, an offender was deemed to have moved when he stayed at any address longer than three days and evinced an intent to take up residence there. See Minn.Stat. § 243.166, subd. 3(b) (1996).
Because the consequences of falling under the purview of section 243.166 are serious, I, unlike the majority, would not use the modifier “only” when referring to the fact that an offender must register as a sexual predator or that the period of registration lasts for a minimum of ten years. These are serious restrictions for a person living in a free society such as ours. It is worthy to note that what separates our society from totalitarian states is that we take individual freedoms seriously and will not deprive citizens of those freedoms without strict adherence to the procedural requirements of the law. Unfortunately, absent a finding by the district court, procedural due process was not met in this case.
Had the district court made a finding that the criminal sexual conduct charges arose out of the same set of circumstances ás the assault, I have no doubt that we would not have before us today the issue of whether Boutin is required to register as a sex offender. With this procedural safeguard in place, Boutin would undoubtedly have been more fully aware of the consequences of his guilty plea and we would not be tempted to make factual findings at this stage of the proceedings. But, as tempting as it may be to make our own finding based upon police reports and unverified statements, to do so is improper. Therefore, I conclude that we have no choice but to reverse the court of appeals and remand this matter to the district court.
Because I would reverse and remand on the grounds that the district court failed to make a proper finding as to an essential element of Minn.Stat. § 243.166, I conclude that it is unnecessary to reach the statutory interpretation and constitutional issues addressed by the majority.