(dissenting).
Because the appellant acknowledges that his probation condition included a no-unsupervised contact with a minor provision and because the appellant did not raise the issue in the district court, the court of appeals, or his petition for review to this court, I respectfully dissent.
In my view, it is incongruous to acknowledge that Ornelas waived the probation condition issue and then proceed to comb the record — or more accurately, the lack thereof — to determine whether the no-contact requirement was actually imposed. Here, the majority recognizes that Ornelas acknowledged that the no-contact condition was a term of probation in his brief to the court of appeals and in his petition for review. Nonetheless, while recognizing that the probation condition was never contested, the majority concludes that “there is nothing in the record indicating that the no-contact provision was ever made a condition of Ornelas’s probation.”
How or why Ornelas “knew” that such a condition was a condition of probation could have been clarified had Ornelas contested the issue below. Instead, without *82the benefit of a developed record, the majority rules on the issue emphasizing the need for defendants to understand the probationary terms imposed. While I agree that probationary conditions need to be understandable and communicated, there is no evidence that such flaws in the imposition of probation occurred here. We should not equate the waiver of an issue and therefore a lack of a developed record with proof that a condition was not properly imposed.
Finally, it is particularly troubling that the majority’s holding rewards litigants who do not raise issues in the lower courts and therefore deprive opposing parties of an opportunity to respond. This injustice is further underscored by the facts of this case wherein Ornelas agrees with the state that the no-contact provision was a probation condition.
For the reasons stated above, I would affirm the lower court’s rulings and uphold the district court’s revocation of Ornelas’s probation. In the alternative, I would remand the case to the district court so that both parties could be heard and a record developed. Such a holding would be more in line with the duty of appellate courts to address the issues presented in a case and not usurp the role of the fact finder. See Haugen v. Peterson, 400 N.W.2d 723, 726-27 (Minn.1987). I respectfully dissent.