This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
State of Minnesota,
Dean Lawrence Brooks,
Scott County District Court
File No. 9718876
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Thomas John Harbinson, Scott County Attorney, Michael J. Groh, Assistant Scott County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)
F. Clayton Tyler and Christopher Lawrence Goodman, 230 Midland Square, 331 Second Avenue South, Minneapolis, MN 55401 (for respondent)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
After two years of delayed proceedings, the state, unable to locate a witness, filed a motion for a continuance two days before the scheduled trial date. The district court denied the state’s motion as untimely and dismissed the complaint. The state appeals those rulings. Because the district court’s order permitted the state to refile the complaint and did not foreclose the state’s ability to successfully prosecute respondent, the state has not met its burden of clearly and unequivocally showing that the disposition was an error that had a critical impact on future prosecution. We dismiss the appeal.
In November 1997, the state charged respondent Dean Lawrence Brooks with second-degree assault in violation of Minn. Stat. § 609.222, subd. 2 (1996), and third- degree assault in violation of Minn. Stat. § 609.223, subd. 1 (1996), for allegedly assaulting A.W. In January 1998, the district court ordered a competency evaluation and suspended criminal proceedings pending the outcome. In April 1998, the state charged respondent with the murder of K.T., and the parties agreed to continue the assault case until the murder charges were resolved. Respondent pleaded guilty to second-degree murder in November 1998.
The assault proceedings resumed in April 1999, and the parties agreed to an August 1999 trial date. A few days before trial, the district court judge ordered a new competency evaluation. Respondent was found competent to stand trial and the parties agreed to yet another new trial date -- December 16, 1999.
Two days before trial, the state filed a motion for a continuance. The state requested the continuance because A.W. had not responded to the out-of-state subpoena to testify at trial. At the December 16, 1999 hearing, respondent asked the district court to dismiss the complaint. Respondent’s attorney argued that respondent’s speedy trial rights had been violated, but specifically suggested that the district court dismiss the complaint without prejudice. The district court denied the continuance as untimely and dismissed the complaint without prejudice. The order of dismissal expressly allowed the state to refile the complaint, and effectively granted the state the time it needed to locate the missing witness. The state appeals that ruling.
D E C I S I O N
As a “threshold requirement to review,” this court must decide whether the district court’s pretrial order is appealable. State v. Joon Kyu Kim, 398 N.W.2d 544, 550 n.10 (Minn. 1987). In order to prevail in an appeal from a pretrial order, the state must clearly and unequivocally show that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977); State v. Jones, 518 N.W.2d 67, 69 (Minn. App. 1994), review denied (Minn. July 27, 1994). The question before us is whether the district court’s dismissal of the complaint “without prejudice” meets this critical impact test. Since the words “without prejudice” alone are not determinative in a criminal case, we assess the dismissal’s actual effect on the proceedings. See City of St. Paul v. Halvorson, 301 Minn. 48, 51, 221 N.W.2d 535, 537 (1974) (“[I]t is not the words utilized by the lower court in its dismissal but rather the basis for the dismissal itself that is controlling * * * .”).
The general rule is that critical impact is shown if a pretrial order “significantly reduces the likelihood of a successful prosecution.” Joon Kyu Kim, 398 N.W.2d at 551. Critical impact exists where a complaint is dismissed for lack of probable cause, if the dismissal “effectively prevents further prosecutions and [makes] reissuing of the complaints pointless.” State v. Aarsvold, 376 N.W.2d 518, 520 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985). But where the dismissal does not make the reissuing of a complaint pointless, that is, the state still has the evidence with which to recharge, a pretrial dismissal of the charge does not have a critical impact on the success of future prosecution. See id. (applying the rule in a suppression of evidence context).
The state argues that the district court’s failure to grant a continuance was an error that had a critical impact on the prosecution because the viability of its case rests on procuring witnesses. But the state has not shown that the district court’s order bars the state from refiling the complaint, thereby gaining the additional time it needs to locate critical witnesses. Because the state does not adequately explain how its ability to successfully prosecute respondent has been foreclosed, the state has not clearly and unequivocally shown that the critical impact test is met. Because we find that the state has not met the critical impact test, we dismiss this appeal. See Jones, 518 N.W.2d at 69 (“[D]ismissal is * * * a proper disposition when the state has not shown critical impact.”).
Arguing that he has been denied his right to a speedy trial, respondent asks that we dismiss this action with prejudice, thereby barring the state from refiling the complaint. The record shows, however, that appellant’s attorneys agreed to, and in some cases requested, the delays in this case until the December 16, 1999, hearing. At that hearing, respondent’s attorney, while not waiving respondent’s right to a speedy trial, specifically suggested that the district court dismiss the state’s complaint without prejudice to allow the state to locate the missing witness. Based on these arguments, the district court rested its decision to dismiss on grounds other than respondent’s speedy trial claims. Because the record shows that the speedy trial issue was not fully litigated by the parties and was not decided by the district court, we do not decide it. See State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989) (declining to rule on an issue due to the trial record’s insufficiency).
 The general rule that an order of dismissal is not appealable by the state unless it bars further prosecution has generally been confined to dismissals of complaints for lack of probable cause or dismissals brought pursuant to motion by the prosecution or the court. See Minn. R. Crim. P. 28.04, subd. 1; see also State v. Chamberlain, 373 N.W.2d 854 (Minn. App. 1985) (applying rule). Because the dismissal in this case did not concern probable cause, and neither the prosecution nor the court moved to dismiss, we assess the merits of the state’s appeal under a critical impact analysis.