IN COURT OF APPEALS
Jean Pierre Wright,
Filed June 28, 2005
Cass County District Court
File No. K2-04-677
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Earl E. Maus, Cass County Attorney,
Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*
A stay of adjudication of a felony conviction is appealable by the state as a sentence under Minn. R. Crim. P. 28.05, subd. 1(1). Accordingly, the state has ninety (90) days from the date of the sentencing order to file an appeal.
O P I N I O N
Respondent, Jean Pierre Wright, pleaded guilty to first-degree driving while impaired (DWI) and gross-misdemeanor driving after cancellation as inimical to public safety. The district court then stayed adjudication of respondent’s conviction. The state appealed 27 business days after the district court’s decision in reliance on Minn. R. Crim. P. 28.05, subd. 1(1), which allows the state to appeal felony sentences within 90 days of the sentencing order. A special term panel of this court questioned jurisdiction, but deferred ruling on the issue. At special term, respondent argued that the state’s appeal was not timely, claiming the state had only 5 days, not 90, to file its appeal.
The state argues that Minn. Stat. § 169A.276, subd. 1(b) (2002) prohibits the district court from staying adjudication in felony DWI cases. The state also argues that no special circumstances exist warranting a stay of adjudication, and neither the probation officer’s recommendation nor the impact of a conviction on respondent’s employment are sufficient to support a stay of adjudication.
First, the state’s appeal is from a sentence. Thus, this court has jurisdiction to decide this case on its merits. We conclude the district court erred by staying adjudication of respondent’s conviction on these facts. We reverse and remand for resentencing.
On September 7, 2004, respondent pleaded guilty to first-degree DWI and gross-misdemeanor driving after cancellation as inimical to public safety. This was respondent’s fourth alcohol-related driving offense.
Respondent appeared before the district court on October 18, 2004, for sentencing. At the hearing, respondent argued that he was turning his life around and had found success working as a slots manager at the Northern Lights Casino. Respondent argued that he would lose his job if he was convicted of a felony and, thus, he requested that the court stay adjudication of his conviction. The PSI recommended that the court stay adjudication.
The state, while sympathizing with respondent’s plight, opposed a stay of adjudication and, instead, recommended a stay of execution. In support of its argument, the state noted that this was respondent’s fourth alcohol-related driving offense, that respondent had been convicted of burglary in 1996, and certain evidence indicated that respondent would lose his job as slots manager even if the court stayed adjudication.
The district court followed the recommendation of the PSI and stayed adjudication of respondent’s conviction. While the court did not make lengthy findings regarding its decision, it did state that respondent “will probably get his job back” as a result of the stay of adjudication. The court then ordered respondent to abide by the terms of the stay of adjudication for seven years (no further arrests, abstaining from alcohol, and attending counseling); serve six months in the Cass County Jail; undergo 30 days of home monitoring with an alco-sensor; and pay $1,625 in fines. The state’s appeal followed.
Does this court have jurisdiction over the state’s appeal, despite the state’s failure to file within five days as required by Minn. R. Crim. P. 28.04, subd. 2(1) (governing procedure for appeal of pretrial orders)?
The state filed its appeal from the district court’s stay of adjudication on November 24, 2004, 27 business days after entry of the district court’s order. On December 22, 2004, a special-term panel of this court questioned jurisdiction over the state’s appeal based on the language of State v. Thoma, 569 N.W.2d 205, 208 (Minn. App. 1997), aff’d mem., 571 N.W.2d 773 (Minn. 1997) (classifying stays of adjudication as pretrial orders for purposes of appeal). Compare Minn. R. Crim. P. 28.04, subd. 2 (allowing for appeal from a pretrial order within 5 days of notification of the decision) (emphasis added), with Minn. R. Crim. P. 28.05, subd. 1(1) (allowing the prosecutor to appeal from an imposed or stayed felony sentence within 90 days of entry of an order) (emphasis added). The special term panel deferred the jurisdictional question to this panel. Before reaching the merits of the state’s argument, we need to determine whether this appeal should be classified as an appeal from a pretrial order or an appeal from a sentence.
In State v. Thoma, this court consolidated five appeals where
the state was contesting stays of adjudication on misdemeanor charges. 569 N.W.2d at 206-07. The Thoma
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).
As the state points out in its brief
to the special term panel, there is precedent for its argument that stays of
adjudication in felony proceedings are appealable as sentences rather than
pre-trial orders. See State v. Krotzer, 548 N.W.2d 252, 254-55 (
Logic dictates that whether a district court (1) executes a sentence and incarcerates a person, (2) stays execution or imposition of a sentence coupled with terms of probation that may include incarceration up to 12 months, or (3) stays adjudication of guilt but imposes a sentence consisting of terms of probation that may include incarceration up to 12 months, that each disposition is a sentence.
The state also points to this
court’s decision in State v. Angotti, 633 N.W.2d 554, 556 (Minn. App.
2001). In Angotti, this court was
faced with a stay of adjudication of a felony charge where the district court
had ordered five years of probation and no jail time.
in support of his argument that the state’s appeal is untimely, relies on State
v. Verschelde, 595 N.W.2d 192, 196 (
Here, the district court stayed adjudication of respondent’s conviction over the state’s objection. The state did believe respondent had effected some meaningful change in his behavior and would have gone along with a stay of execution. But it is crystal clear that the state did not consent to the court’s stay of adjudication. The state’s position here is not at all similar to the defendant’s position in Verschelde.
The district court stayed
adjudication of a felony conviction and imposed extensive conditions of
probation on respondent, including ordering that respondent abide by the terms
of the stay for seven years (no further arrests, abstaining from alcohol, and
attending counseling); serve six months in the Cass County Jail; undergo 30 days of home monitoring with an alco-sensor; and pay $1,650 in fines. We find the reasoning of Krotzer, Lattimer,and Angotti to be persuasive.
The language of Minn. Stat.
§ 169A.276 (2002) supports our conclusion that the state is appealing a
sentence rather than a pretrial order.
Section 169A.276 sets forth a minimum mandatory sentence of three years
in prison for first-degree DWI convictions in
We conclude the state’s appeal is from a sentence rather than a pretrial order; the state’s appeal is timely; and we will address the merits.
The state argues that the circumstances of this case and the record do not support a stay of adjudication. First, it is clear the district court’s decision to stay adjudication is within the court’s “inherent judicial power” when the decision is supported by “special circumstances.” Krotzer, 548 N.W.2d at 254-55. A clear-abuse-of-discretion standard applies to appellate review of stays of adjudication. Angotti, 633 N.W.2d at 556.
Here, the district court stayed
adjudication based on the fact that respondent would lose his job as a slots
manager if a felony conviction were entered.
We can understand the district court’s motive, but it is not at all
clear that the potential loss of employment is sufficient, by itself, to support
a stay of adjudication on a felony. See
State v. Twiss, 570 N.W.2d 487, 487 (
Importantly, the record indicates that respondent’s employer considered his stay of adjudication to be the equivalent of a conviction until respondent satisfied the seven years of his probation. The record contains evidence of the employer’s intention to terminate respondent regardless of what the sentence was called. The record does not support the conclusion that the district court’s attempt to save respondent’s job was successful.
This was respondent’s fourth alcohol-related driving offense. Thus, respondent was charged with first-degree DWI under Minn. Stat. § 169A.24, subd. 1(1) (2002). As stated above, the Minnesota Legislature has attempted to prohibit district courts from staying adjudication in first-degree DWI cases. Minn. Stat. § 169A.276, subd. 1(b). We do not rest our decision on that statute. The constitutionality of a statute attempting to limit the inherent sentencing powers of the judiciary was not raised, briefed, or argued on a “separation-of-powers” basis. Thus, we do not address that issue. It is enough to note that the legislature has indicated a clear intent to bar stays of adjudication on felony DWI convictions. Since any statute stands until successfully challenged, that legislative expression, at the very least, heightens the threshold for facts and circumstances justifying a stay of adjudication on this new statute, meaning, Minnesota’s first felony DWI statute.
We conclude the district court erred when it stayed adjudication of respondent’s sentence for felony DWI on these facts. We reverse and remand for resentencing.
D E C I S I O N
The state appealed a stay of adjudication on a felony charge where part of the district court’s sentence included jail time as a condition of the stay. The state’s appeal is from a sentence. Accordingly, pursuant to Minn. R. Crim. P. 28.05, subd. 1(1), the state had ninety (90) days to file its appeal, and this court accepts jurisdiction.
The district court erred by staying adjudication of respondent’s conviction on these facts.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We note that the issue of jurisdiction was not discussed in either decision.
 Respondent, in apparent reliance on his jurisdictional argument to the special term panel, did not submit a brief challenging the merits of the state’s appeal.
 The language of section 152.18, which addresses deferral of prosecution for certain first-time drug offenders, has not changed since the supreme court issued its decision in Verschelde.