State v. Lee

693 N.W.2d 216, 2005 Minn. App. LEXIS 300, 2005 WL 590052

• Court: Court of Appeals of Minnesota
• Decided: March 7, 2005
• Docket: A04-1402
• Status: Published

Opinions

OPINION

KLAPHAKE, Judge.

After respondent Dennis Gordon Lee pleaded guilty to charges of driving after revocation and failure to provide insurance, the district court granted a stay of adjudication and imposed conditions that included service of jail time. The state filed this appeal, arguing that the district court erred in sentencing Lee, over the state’s objection, to a stay of adjudication in the absence of a clear abuse of discretion by the state in the exercise of its charging function. Lee challenges the state’s right to appeal. Because Minn. R.Crim. P. 28.04 does not authorize an appeal by the state from a sentence in a non-felony case, we dismiss this appeal.

FACTS

On February 9, 2004, Lee’s vehicle was stopped by police officers in the City of Long Prairie, which is located in Todd County, Minnesota. The officers stopped Lee because one of them recognized him and knew, based on a check of his license a few days earlier, that his license was revoked. Lee also admitted to the officers that he did not have insurance on the vehicle he was driving.

Lee was charged by formal complaint with three misdemeanors:. (1) driving after revocation under Minn.Stat. § 171.24 (2002); (2) failure to provide proof of insurance under Minn.Stat. § 169.791 (2002); and (3) failure to provide insurance under MinmStat. § 169.797 (2002).

On June 21, 2004, Lee pleaded guilty to driving after revocation and failure to provide insurance. The court ordered a pre-sentence investigation (PSI) and set a date for sentencing.

The transcript of the July 28, 2004 hearing begins: “Then I’ll call for sentencing hearing the matter of the State v. Dennis Gordon Lee.” The PSI was submitted and indicated that Lee “lost his license” in 1999 and 2004 for failure to pay child support. The PSI further noted that “there appears to be a disagreement regarding the possibility of defendant receiving a stay of adjudication” and that “I cannot recommend a stay of adjudication in this matter.” The PSI finally noted that “should [Lee] get adjudicated on this matter, he will lose his license for another year[J”

The prosecutor argued that there was no abuse of discretion in the charging decision, that there were no substantial and compelling reasons for a stay of adjudication, and that the collateral consequence of yet another license violation was not a special circumstance warranting a stay of adjudication. Defense counsel argued that none of Lee’s license violations involved driving conduct and that his record was driven by economics: (1) his first violation occurred at age 21 when he lost his license as a consequence of failure to provide insurance; (2) he thereafter had two violations for driving after withdrawal; (3) his license was reinstated, but thereafter suspended for failure to pay a fíne; (4) after “falling behind on his child support,” his license was again suspended; (5) during this suspension, he incurred two more violations for driving after withdrawal; and (6) after his license was reinstated, he was laid off of work and could not afford insurance, which resulted in another license withdrawal. At the time of the hearing, Lee’s license had been reinstated. In addition, Lee had insurance, was current in his child support, was living in Long Prairie, and was employed by a St. Cloud construction firm and working in Clear-water. Defense counsel pleaded with the district court to help Lee get off this “merry-go-round.” In response, the prosecutor objected and argued that “I don’t think that a stay of adjudication is an appropriate sentence[.]”

The district court agreed with the state that this was not “an abuse of discretion in charging.” The district court went on to state: “I also believe ... that if we have a full-time employed person now with a driver’s license, with insurance, with child support ... I don’t think we serve the public interest by stopping that. And so, I am going to stay adjudication on some pretty strict eonditions[.]” The district court further noted that Lee’s guilty plea represented a violation of a prior probationary order.

The district court imposed the following conditions on Lee: (1) pay $500 toward the cost of prosecution on each of two counts; (2) serve 90 days in county jail on each of two counts, one-half suspended; and (3) have no further moving, license, or insurance violations and file proof of insurance every three months with the court. The court also issued a sentencing order with the following conditions: (1) 45 days in jail on each of two counts, stayed for one year; (2) 45 days to be served in jail at defendant’s expense on each of two counts; (3) $60 surcharge on each plea; (4) $5 law library fee on each plea; and (5) $500 prosecution fee on each plea.

ISSUE

Can the state appeal from a stay of adjudication in a non-felony case that includes service of jail time?

ANALYSIS

The right of the state to appeal in criminal cases is strictly construed. State v. Kivi, 554 N.W.2d 97, 100 (Minn.App.1996) (stating that state’s right to appeal in criminal case is strictly construed, and state may appeal only where expressly authorized by statute), review denied (Minn. Dec. 17, 1996); State v. Rhines, 435 N.W.2d 542, 544 (Minn.App.1989) (same), review denied (Minn. Mar. 17, 1989). Under the rules of criminal procedure, the state may appeal from a sentence only in a felony case. Minn.R.Crim. P. 28.04, subd. 1(2).

In State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn.1997), this court held that a district court’s stay of adjudication in a non-felony case was appealable by the state as a “pretrial order” under Minn. R.Crim. P. 28.04, subd. 1(1). Thoma, 569 N.W.2d at 206-07, involved four petty misdemeanors for shoplifting and one misdemeanor for underage drinking and driving. In each of the four petty misdemeanors, the district court accepted the defendants’ guilty pleas and stayed adjudication; our decision does not specify whether there were other consequences. Id. In the case involving the underage drinking and driving charge, the defendant agreed to plead guilty in exchange for the prosecutor’s agreement that there would be no “executed jail time.” Id. at 207. The district court stayed adjudication for 90 days and ordered the defendant to pay $50 for the costs of prosecution and to comply with other conditions that were not specified in our decision. Id. Thus, none of the Thoma cases resulted in served jail time as a condition of the stay of adjudication.

Thoma has been followed in subsequent cases from this court. See, e.g., State v. Ohrt, 619 N.W.2d 790, 792 (Minn.App. 2000); Smith v. State, 615 N.W.2d 849, 851 (Minn.App.2000), review denied (Minn. Sept. 26, 2000); State v. Prabhudail, 602 N.W.2d 413, 414 (Minn.App.1999), review denied (Minn. Jan. 18, 2000). However, none of these cases discuss or appear to involve service of jail time. Although one case from this court involved a four-day jail sentence, the majority in that case did not discuss the jurisdictional issue, even though the dissent did. See State v. Scaife, 608 N.W.2d 163, 164-65 (Minn.App.2000), revieiv denied (Minn. May 16, 2000). Because this case involves an appeal from a stay of adjudication that included service of jail time, we believe it must be characterized as an appeal from a non-felony sentence and not from a pretrial order as in Thoma.

In addition, for all intents and purposes, the stay of adjudication here was treated as part of a sentencing proceeding, not as part of any pretrial proceedings. In particular, after Lee entered his guilty plea on two misdemeanor charges, the district court ordered a PSI and set a date for sentencing. At that hearing, the state was given an opportunity for allocution, during which the prosecutor argued that a stay was not an appropriate sentence for Lee. The district court issued an order in which it recited two misdemeanor counts, imposed a jail sentence of 45 days on each of these two counts, and ordered payment of the costs of jail, surcharges, and law library fees, all of which are generally associated with sentencing — and not pretrial— orders. The state’s appeal papers indicated that it was appealing from the “sentence” of July 28, 2004 and that its appeal challenged “the district court’s stay of adjudication of the guilty plea as part of the court’s sentencing order.” Characterizing Lee’s stay of adjudication as a “pretrial” order ignores these additional facts, which are unique to sentencing proceedings.

Finally, our decision here is entirely consistent with the supreme court’s description of a stay of adjudication as a “final disposition of a criminal case” and a “sentencing option.” State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996). Moreover, the state has not called our attention to any authority that would authorize the imposition of jail time as a sanction at pretrial stages of criminal proceedings, or at any other time before sentencing, and we are aware of no such authority. Unlike the consequences in Thoma, the consequences here, which included service of 45 days in jail, cannot be characterized as anything but a sentence. We therefore distinguish this case from Thoma and expressly limit our holding to cases involving non-felony stays of adjudication that include service of jail time.¹

DECISION

Because the non-felony stay of adjudication involved here included jail time that must be served, it cannot be considered a “pretrial” order subject to appeal by the state. We therefore dismiss this appeal as unauthorized by Minn.R.Crim. P. 28.04. See State v. Loyd, 627 N.W.2d 653, 655 (Minn.App.2001) (dismissing state’s appeal from district court’s modification of gross-misdemeanor sentence).

Appeal dismissed.

1 . We recognize that the supreme court has issued decisions in at least two cases involving appeals by the state from non-felony stays of adjudication. See, e.g., State v. Cash, 558 N.W.2d 735 (Minn. 1997); State v. Foss, 556 N.W.2d 540 (Minn.1996). We further recognize that the supreme court has cited Thoma as authority in at least two cases involving felony appeals. See, e.g., State v. Hoelzel, 639 N.W.2d 605, 608 (Minn.2002); State v. Verschelde, 595 N.W.2d 192, 196 (Minn.1999). In none of these cases, however, did the supreme court decide the issue presented here: whether the state has the right to appellate review of a non-felony stay of adjudication that includes jail time that must be served.