State Of Minn. v. Strok, No. A10-273.
| Decision Date | 20 July 2010 |
| Docket Number | No. A10-273. |
| Citation | 786 N.W.2d 297 |
| Parties | STATE of Minnesota, Appellant,v.Evialina STROK, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Minn. R.Crim. P. 28.04, subd. 1(1) (2009), authorizes the state to pursue a pretrial appeal from a district court's continuance for dismissal.
2. A district court may not order a continuance for dismissal over the state's objection unless the prosecutor has committed a clear abuse of the prosecutorial discretion in the exercise of the charging function.
Lori Swanson, Attorney General, St. Paul, MN; and Anna Krause Crabb, Rolf A. Sponheim, City of Minnetonka, Minnetonka, MN, for appellant.
Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN, for respondent.
Considered and decided by JOHNSON, Presiding Judge; STAUBER, Judge; and WILLIS, Judge.*
Evialina Strok was charged with gross-misdemeanor theft after she was observed stealing clothing from a department store. Before trial, the district court, over the state's objection, continued the case for dismissal for one year. The state appeals. We conclude that the district court erred by continuing the case for dismissal over the prosecutor's objection without finding that the prosecutor committed a clear abuse of the prosecutorial discretion in the exercise of the charging function. Therefore, we reverse and remand for further proceedings.
On June 23, 2009, Strok was arrested for committing theft at Macy's department store in Ridgedale Mall in the city of Minnetonka. A Macy's security employee, using the store's video-surveillance system, saw Strok enter a fitting room with numerous items and saw her leave the fitting room carrying only two items and a shopping bag. The detective later saw Strok take additional items from a rack of clothing and put them into her shopping bag. Strok exited the store without attempting to pay for the merchandise in her possession. Macy's employees stopped Strok outside the store and asked her to return so that they could inspect her shopping bag. Inside Strok's shopping bag and purse they found 20 items of merchandise valued at approximately $844.
In July 2009, the state charged Strok with one count of gross-misdemeanor theft in violation of Minn.Stat. § 609.52, subds. 2(1), 3(4) (2008). Strok pleaded not guilty. At a hearing in February 2010, the district court stated its intention to refer Strok to the De Novo Program, a pretrial diversion program operated by the Hennepin County Attorney's Office see Minn.Stat. § 401.065 (2008), and to continue the case for one year until dismissal. The state made a timely objection. The district court stated the following reasons for its decision to continue the case for dismissal:
As we discussed in chambers, ... if these acts had been done a year and a half ago that this would have been a felony amount and if it had been a felony amount then and she had gone through the County Attorney and through Property Drug Court where I routinely have been sitting then she would have gotten diversion on the felony. And if she had stolen more items at Macy's or shoplifted more items so she was down facing felony charges she would get diversion. And it seems ironic then that someone with a gross misdemeanor amount has a stiffer sentence than someone with a felony amount. And so based on that and my understanding of the De Novo Program where there are classes and hours of community service and other things I think that this in some ways is going to require her to do more with regard to a diversionary sentence than if I were to give her a misdemeanor. And so it's on that basis that she is in some ways being treated differently than people who commit more serious crimes by statutory definition. So that's the basis of my agreeing to a diversion in this case.
The state appeals.
I. May the state pursue a pretrial appeal from the district court's continuance for dismissal?
II. Did the district court err by continuing the case for dismissal over the prosecutor's objection?
State v. C.P.H., 707 N.W.2d 699, 703 (Minn.App.2006) (citation omitted).
As a threshold matter, we first must analyze Strok's responsive argument that the state is not entitled to appellate review of the district court's order. We apply a de novo standard of review to Strok's argument, which concerns the proper interpretation of a rule of court. See State v. Barrett, 694 N.W.2d 783, 785 (Minn.2005).
The state's right to pursue an appeal before trial of a criminal case is a limited right. “There must be a statute or court rule that permits the appeal, or the issue must arise by necessary implication from an issue where the State's right to appeal is expressly provided.” State v. Rourke, 773 N.W.2d 913, 923 (Minn.2009) (quotation omitted). Generally, the state's right to appeal is governed by rule 28.04, subdivision 1, of the Minnesota Rules of Criminal Procedure, which describes seven types of district court decisions that may be appealed by the state as of right. Barrett, 694 N.W.2d at 787; Minn. R.Crim. P. 28.04, subd. 1. The relevant parts of that rule provide as follows:
Minn. R.Crim. P. 28.04, subd. 1 (2009).1
We are aware of only one published opinion concerning a case in which the state appealed from a continuance for dismissal. In State v. Prabhudail, 602 N.W.2d 413 (Minn.App.1999) review denied (Minn. Jan. 18, 2000), this court held that the district court erred by continuing the case for dismissal because there was “no evidence of abuse of prosecutorial discretion.” Id. at 414. It does not appear that the defendant-respondent challenged the state's right to appeal from the district court's order. Nonetheless, before addressing the merits of the appeal, we stated, “A continuance for dismissal and a stay of adjudication are ... appealable by the state in nonfelony cases, despite any inclusion of criminal sanctions.” Id. Our opinion does not identify a particular provision within rule 28.04 as the basis of the state's appeal. See id.
Strok contends that Prabhudail no longer applies because of a subsequent amendment to rule 28.04. In 2007, subdivision 1(4) was amended to make specific reference to a stay of adjudication. See Minn. R.Crim. P. 28 cmt. Strok notes that this court has stated that “[a] continuance for dismissal and a stay of adjudication are functionally equivalent.” Prabhudail, 602 N.W.2d at 414. According to Strok, if subdivision 1(4) applies to a stay of adjudication, and if a stay of adjudication and a continuance for dismissal are functionally equivalent, then subdivision 1(4) also should apply to a continuance for dismissal. Strok wishes to apply subdivision 1(4) because that part of the rule permits an appeal from a stay of adjudication only if “the defendant pleaded guilty or was found guilty at a trial,” Minn. R.Crim. P. 28.04, subd. 1(4), and it is undisputed that Strok did not plead guilty and was not found guilty at trial. Thus, according to Strok's argument, the state's appeal does not satisfy the requirements of subdivision 1(4).
The weakness of Strok's argument is that subdivision 1(4), by its plain language, applies only to a stay of adjudication. A stay of adjudication and a continuance for dismissal are not the same thing. Although we once said that the two terms are “functionally equivalent,” Prabhudail, 602 N.W.2d at 414, we also have said that they “mean very different things,” C.P.H., 707 N.W.2d at 702. A stay of adjudication is a procedure that is used “upon a defendant's guilty plea or a fact-finder's determination of guilt.” C.P.H., 707 N.W.2d at 702. But a continuance for dismissal “involves neither a guilty plea nor a finding of guilt.” Id. at 703. Thus, subdivision 1(4) applies only if a district court stays adjudication after a finding of guilt. Subdivision 1(4) does not apply to a continuance for dismissal, which is what the district court ordered in this case.
The state relies primarily on subdivision 1(1), which concerns pretrial orders. A continuance for dismissal is a pretrial order in that it occurs before a trial and before any determination of guilt. Strok makes no argument why subdivision 1(1) does not apply other than her argument that subdivision 1(4) applies. Thus, we conclude that subdivision 1(1) of rule 28.04 permits the state to appeal from the district court's order continuing the case for dismissal.2
As stated above, the state argues that the district court erred by ordering a continuance for dismissal over the state's objection. A continuance for dismissal is authorized by rule 27.05 of the Minnesota Rules of Criminal Procedure, which is entitled “Pretrial Diversion”:
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