This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jerome James Cubus,




Filed December 19, 2000


Halbrooks, Judge


Hennepin County District Court

File No. 99040352



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


Brian H. Gaviglio, Associate Bloomington City Attorney, Bloomington City Attorney’s Office, 2215 West Old Shakopee Road, Bloomington, MN 55431 (for respondent)


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



            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant, convicted of gross misdemeanor DWI, argues that the trial court erred in denying his motion to dismiss the complaint because it was untimely filed.  Because the complaint was timely filed, we affirm.


            Appellant Jerome Cubus was charged with enhanced gross-misdemeanor driving under the influence (DWI) and refusal to submit to chemical testing (third offense within ten years).  Following the release of Baker v. State, 590 N.W.2d 636 (Minn. 1999), holding that the enhanced gross-misdemeanor statute under which appellant was charged is unconstitutional, appellant moved to dismiss the enhanced gross-misdemeanor charges pursuant to Baker and respondent State of Minnesota moved to amend the complaint to add gross-misdemeanor charges not affected by Baker.

            The district court granted appellant’s motion, denied respondent’s motion, and issued findings of fact, conclusions of law, and order for dismissal on March 25, 1999.  Respondent received them on March 29, 1999, and on April 7, 1999, filed a new complaint, this time charging appellant with standard gross-misdemeanor DWI and refusal to submit to chemical testing (second offense within five years).  Following a Lothenbach stipulation and a bench trial, appellant was convicted of gross-misdemeanor charges of DWI and refusal to submit to chemical testing.


            The interpretation of the rules of criminal procedure is a question of law subject to de novo review.  State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).

            Appellant contends that the complaint under which he was convicted should have been dismissed because it was not timely filed.  Minn. R. Crim. P. 17.06, subd. 4, provides that:

            (3) If the dismissal [of the complaint] is for failure to file a timely complaint as required by Rule 4.02, subd. 5(3), or for a defect that could be cured or avoided by an amended or new indictment, or complaint, further prosecution for the same offense shall not be barred, and the court shall on motion of the prosecuting attorney, made within seven (7) days after notice of the entry of the order granting the motion to dismiss, order that defendant’s bail or the other conditions of his release be continued or modified for a specified reasonable time pending an amended or new indictment or complaint.


* * * The specified time for such amended or new indictment or complaint shall not exceed sixty (60) days for filing a new indictment or seven (7) days for amending an indictment or complaint or for filing a new complaint.


(Emphasis added.)  Minn. R. Crim. P. 34.01 provides that neither the day from which a period begins to run nor Saturdays and Sundays are included in the computation of a period of seven or fewer days.

            Respondent received notice on Monday, March 29.  Excluding that day and also Saturday, April 3, and Sunday, April 4, from the computation pursuant to Minn. R. Crim. P. 34.01, respondent had until Wednesday, April 7, to file the complaint.  It filed on April 7.  See State v. Pettee, 538 N.W.2d 126, 131 (Minn. 1995) (holding that the state satisfies the requirement of Minn. R. Crim. P. 17.06, subd. 4(3), “either by moving for a continuance of the stay or by filing a new or amended indictment or complaint within that seven-day period”) (emphasis deleted).

            Appellant’s reliance on State v. Chamberlain, 373 N.W.2d 854 (Minn. App. 1985) (upholding an order dismissing a gross misdemeanor complaint for failure to timely file), is misplaced.  In Chamberlain, the prosecutor asked for seven days on January 3; the seven-day period expired on January 14, and the complaint was not filed until January 25.  Id. at 855-56.  Here, the complaint was timely filed on the last day of the seven-day period.