This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-172

 

State of Minnesota,

Respondent,

 

vs.

 

Brendan Mark Christenson,

Appellant.

 

Filed October 10, 2000

Affirmed

Shumaker, Judge

 

Isanti County District Court

File No. K29828

 

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Jeffrey R. Edblad, Isanti County Attorney, 555 Eighteenth Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

Peter C. Mayrand, Post Office Box 120884, St. Paul, MN 55112 (for appellant)

 

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

 

U N P U B L I S H E D O P I N I O N

 

SHUMAKER, Judge

 

Appellant claims that the state was barred from prosecuting him when it dismissed the complaint against him and failed to timely file a new complaint. Because the state's filing of an amended complaint was timely, we affirm.

FACTS

 

The state charged appellant Brendan Mark Christenson with six crimes by formal complaint dated January 9, 1998. Christenson claims that he moved to dismiss the case at his initial court appearance on January 28, 1998. He contends that the court continued the motion for hearing on March 4, 1998. The record does not reflect that motion.

In the interim, on February 11, 1998, the state dismissed the original complaint and filed an amended complaint charging seven offenses. The court dismissed three of the charges for lack of probable cause. On February 23, 1998, the state dismissed the amended complaint and filed a second amended complaint charging seven offenses. The court dismissed one of the charges for lack of probable cause.

Christenson appeared for an omnibus hearing on March 4, 1998, and moved to dismiss the remaining counts in the second amended complaint. While this motion was under advisement, the state moved on February 10, 1999, to amend the second amended complaint with a third amended complaint, charging seven offenses. The court granted the motion.

On June 9, 1999, Christenson and the state submitted the case for bench trial on stipulated facts. The court found Christenson guilty of all seven charges.

Contending that the state was barred from prosecuting further when it dismissed the original complaint and failed to move for a stay or to file a new complaint within seven days, Christenson appeals.

D E C I S I O N

 

A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Christenson contends that under Minn. R. Crim P. 17.06, subd. 4, and State v. Chamberlain, 373 N.W.2d 854 (Minn. App. 1985), the state was barred from prosecuting him because the state failed to file a new complaint within seven days of dismissing the original complaint.

The trial court rejected Christenson's claim, ruling that rule 17.06 "is applicable only when a Motion attacking the complaint is brought." It is not clear from the record that Christenson moved to dismiss the original complaint. But even if he did, the state did not violate rule 17.06. The state dismissed the original complaint on February 11, 1998, and at the same time filed an amended complaint. The rule allows the filing of an amended complaint to cure defects in the original complaint. Because of the simultaneous dismissal and re-filing, there never arose an issue of the timeliness of the first amended complaint. Furthermore, Chamberlain dealt with a dismissal for failure to file a timely complaint and is not apposite here. The trial court did not err in denying Christenson's motion to dismiss the prosecution.

Affirmed.