This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Sergey Mikhaylovich Selyukov,
Elvira (NMN) Zderchuk,
Anoka County District Court
File Nos. K8994774, K6994773
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for appellant)
Steven J. Meshbesher, Meshbesher & Associates, 225 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.
In these consolidated appeals, appellant seeks review of trial court orders continuing for dismissal respondents’ charges of theft by swindle and theft by false representation. Appellant argues that respondents’ payment of restitution, amenability to probation, age, and remorse are not “special circumstances” justifying a stay of adjudication or continuance for dismissal of their convictions. Appellant also maintains that the unexpressed reason for the decision of the trial court was the possible deportation of respondents if judgments of conviction were entered. Because no “special circumstances” involving a clear abuse of prosecutorial discretion are present in these cases, we reverse.
The facts in these cases are not in dispute. Respondents Sergey Mikhaylovich Selyukov and Elvira Zderchuk were charged with theft by false representation in excess of $35,000 in violation of Minn. Stat. § 609.52, subds. 2(3)(i), 3(1) (1998), and abetting theft by swindle in excess of $35,000 in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1) (1998). Selyukov opened a checking account at Sheet Metal Worker’s Credit Union (Credit Union), and made deposits totaling $99,000 into that account using checks written by Zderchuk on a defunct Twin City Federal account formerly held by her. Selyukov withdrew funds from the Credit Union account in the form of money orders and checks payable to himself or Zderchuk. Selyukov admitted knowing that the Twin City Federal account was closed and Zderchuk admitted knowing that there was no money in the Twin City Federal account to cover the checks she wrote to Selyukov.
At the omnibus hearing, respondents moved to dismiss the charges based upon their payment of restitution and the likely deportation consequences of a conviction. The omnibus court found that no special circumstances existed to justify dismissal, stating that restitution is not a substitute for criminal liability and leaving the issue of deportation to the federal authorities.
Respondents again moved for dismissal before the trial court. The court denied the motion, but, over the objection of appellant State of Minnesota, continued the cases for dismissal for up to 20 years on conditions that respondents remain law abiding and of good behavior, perform 500 hours of community work service, and that they pay $500 toward costs of prosecution. These appeals resulted.
D E C I S I O N
A ruling on a request for a continuance is within the district court’s discretion. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). The district court has the inherent power to order the functionally equivalent dispositions of continuance for dismissal or stay of adjudication, even over the prosecutor’s objection, where the case involves “special circumstances.” State v. Prabhudail, 602 N.W.2d 413, 414 (Minn. App. 1999). Such “special circumstances,” however, must involve an abuse of prosecutorial discretion in charging; absent this, “the judiciary is powerless to interfere with the prosecutor’s charging authority.” State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996) (citation omitted). The power of a trial court to stay adjudication or grant a continuance for dismissal has been very narrowly construed in cases subsequent to Krotzer. The court has cautioned that the inherent judicial authority recognized in Krotzer was to
be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.
State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (emphasis in original).
In the present cases, the trial court cited several factors in granting the continuance for dismissal, including the fact that respondents made full restitution to the credit union and that the legal costs of this recovery were minimal. The court also recognized that the respondents were remorseful and seemed to be amenable to probation, noted that respondent Zderchuk was only 18 years old at the time of the offense, and stated that a continuance was necessary to further the interests of justice.
Our review of the factors listed by the trial court compels us to conclude that none qualify as the “special circumstances” demanded by the Minnesota cases addressing the exercise of judicial authority to stay adjudication or grant continuances for dismissal. There is no allegation, let alone any evidence, that the prosecution clearly abused its discretion. Absent any abuse of that discretion, we are unable to identify an injustice. The factors cited by the trial court would certainly have been appropriate ones to be considered in the event leniency was granted in sentencing. See Foss, 556 N.W.2d at 541 (suggesting that the trial court could stay imposition of sentence with minimal conditions to reflect the less-serious nature of a particular charge for misdemeanor assault). But affirming the continuance for dismissal in these cases would require that this court reject strong existing precedent to the contrary. This we are unable to do.
Finally, present in these cases is a factor raised repeatedly before the trial court, but not cited by the court in its continuance for dismissal: the probable deportation of respondents if their guilt was adjudicated. Throughout the trial court proceedings, respondents argued the potentially devastating consequences of deportation to Chechnya, a country torn by war, and argue here that if the trial court considered deportation consequences in making its decision, it was only because the interests of justice required such consideration.
Appellant argues that the trial court presumably was aware that, absent an abuse of prosecutorial discretion, deportation, a collateral consequence of conviction, could not be deemed a “special circumstance.” While the extent to which possible deportation influenced the trial court’s decision is not evident, we must agree with appellant’s characterization of the law on this issue. In Prabhudail, a divided panel of this court (a strong and articulate dissent urged that stays of adjudication and continuances for dismissal should be reviewed under an abuse-of-discretion test applied against the judge, not the prosecutor), reversed a trial court continuance for dismissal that had as its asserted “special circumstance” the possible deportation of the accused. 602 N.W.2d at 414. In light of Prabhudail, the trial court here prudently did not list deportation as a factor supporting continuance for dismissal. There is no doubt, however, that deportation consequences were an important issue in these cases.
In the absence of “special circumstances” involving a clear abuse of prosecutorial discretion, we reverse the continuances for dismissal granted by the trial court.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Both charged offenses are ranked as severity level VI under the Minnesota Sentencing Guidelines. Each respondent had a criminal history score of 0. The presumptive sentence is 21 months stayed.