This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Patrick Allan Anderson,



Filed May 1, 2001
Amundson, Judge


Stearns County District Court
File No. K8-99-1625


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


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


Robert S. Van Heel, Stearns County Attorney, Stearns County Courthouse, 725 Courthouse Square, P.O. Box 1168, St. Cloud, MN  56302 (for respondent)


            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from a conviction for second-degree burglary, appellant argues that the conviction was barred by double jeopardy where appellant had already pleaded guilty in another county to possessing or receiving stolen property that appellant and an accomplice had taken in the burglary.  We reverse.


On October 6, 1998, Patrick A. Anderson was with Michael Jablonski at the apartment of Heidi Fischer, Jablonski’s former girlfriend.  Jablonski told Fischer that he was going to get her some new things for her apartment and would return with them soon.  In the early morning hours of the next day, Anderson and Jablonski burglarized Paul Lyons’s home in Stearns County and immediately returned to Fischer’s home in Kandiyohi County with the stolen goods.  Fischer took some items and Jablonski took the bulk of the stolen items.

An anonymous tipster informed the police that Fischer’s new property was stolen.  Police searched Fischer’s home and found items belonging to Lyons.  Other property belonging to Lyons was later found in Jablonski’s car.

Anderson was charged with possessing stolen property in Kandiyohi County, and with theft and second-degree burglary in Stearns County.  Anderson pleaded guilty to the Kandiyohi County charge.  In Stearns County, Anderson moved to dismiss the charge on the grounds that Minn. Stat. § 609.035 (2000) prohibited the state from prosecuting him in Stearns County when it had already prosecuted him for the same conduct in Kandiyohi County.  The district court concluded that Minn. Stat. § 609.035 did not bar prosecution of the burglary charge, but did bar prosecution of the theft charge.  After a bench trial, Anderson was convicted of burglary, and this appeal followed.


Anderson challenges the district court’s conclusion that Minnesota’s double jeopardy statute, Minn. Stat. § 609.035 (2000), does not prohibit prosecution of his second-degree burglary charge.  The district court’s conclusion was based on its determination that Minn. Stat. § 609.585 (2000) creates an exception to the double jeopardy statute for burglary crimes.[1]  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

Minnesota’s double jeopardy statute provides:

Except as provided in * * * section[ ]  609.585, if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.  All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.

Minn. Stat. § 609.035, subd. 1.  The burglary exception provides that,

a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.

Minn. Stat. § 609.585.  Here, the crime of possession of stolen property was committed while in Lyons’s home.  Therefore, the plain language of section 609.585 indicates that prosecution for burglary is not a bar to the prosecution of, in this case, possession of stolen property.

Although Anderson clearly could have been charged with both offenses, he raises the question of whether he may be prosecuted in a series of prosecutions or only in a single prosecution.  Section 609.035 protects against the dangers of both multiple punishment and serial prosecution.  State v. Prudhomme, 303 Minn. 376, 378, 228 N.W.2d 243, 245 (1975).  Each protection is based on a different purpose.  The protection against multiple punishment is designed to ensure that punishment will be commensurate with culpability, whereas the prohibition against serialized prosecution protects defendants from harassment by repeated prosecution for the same conduct until a desired result is reached.  Id. 

In contrast, section 609.585 addresses, and expressly permits, only the former concern and is silent on the issue of serial prosecutions.  This court "cannot supply that which the legislature purposely omits or inadvertently overlooks.State v. Corbin, 343 N.W.2d 874, 876  (Minn. App. 1984) (quoting Northland Country Club v.Commissionerof Taxation, 308 Minn. 265, 271, 241 N.W.2d 806, 809 (1976).  Furthermore, the predecessor to section 609.585, Minn. Stat. § 621.12 (1961) (repealed 1963), specifically permitted serial prosecutions.  The fact that the current statute does not address serial prosecutions indicates that the legislature no longer intended for the burglary exception to apply to serial prosecutions.  See Northern States Power Co. v. Commissioner of Revenue, 571 N.W.2d 573, 575-76 (Minn. 1997) (“When the legislature changes a statute, the courts are to presume that the legislature intends a change in the law unless it appears that the legislature only intended to clarify the earlier statute.”) (citation omitted).  As it does not appear that the legislature’s omission of the serial prosecution language in section 609.585 was without meaning, the district court erred in concluding that serialized prosecution was permissible in this case.




[1] Although the applicability of section 609.585 is premised on the applicability of the double jeopardy statute, this threshold question is not before the court.  In applying section 609.585, the district court implicitly found that the burglary and the possession stemmed from a “single behavioral incident.”  See State v. Meland, 616 N.W.2d 757, 759 (Minn. App. 2000) (“In determining whether section 609.035 bars prosecution for multiple offenses, a court must ascertain whether the charged offenses resulted from a single behavioral incident.”) (citing State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 524 (1966)).  This conclusion was not appealed, nor did the state respond to Anderson’s appeal.  Issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).