This opinion will be unpublished and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,
City of Taylors Falls,
Harvey Anthony Chichester,
Reversed and remanded
Chisago County District Court
File No. T9003374
Mike Hatch, Attorney General, 525 Park Street, St. Paul, MN 55103; and
Song Lo Fawcett, Robert J. Fowler, Kelly & Fawcett, P.A., 2350 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)
Daniel R. Trost, Schreiber & Jarstad, 104 South Washington, Lake City, MN 55041 (for respondent)
Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
Appellant City of Taylors Falls (city) challenges the trial court’s pretrial order dismissing a complaint alleging ordinance violations. The city contends (1) the court erred in finding that charges against respondent Harvey Chichester constituted serialized prosecution contrary to Minn. Stat. § 609.035 (2000), and (2) the court further erred by not allowing the city to cure the defective complaint. Because Minn. R. Crim. P. 17.06, subd. 4(3), allows for seven days to cure a defective complaint and because the charges did not constitute serialized prosecution, we reverse and remand.
Respondent raises two issues in his brief: (1) appellant’s brief was untimely filed and therefore the appeal should be dismissed, and (2) certain documents in appellant’s brief and appendix must be stricken as they are not part of the record. Because appellant’s brief was timely filed, we deny respondent’s request for dismissal. Because the offending documents have no effect on our decision, we deny the motion to strike as moot.
In August 1999, Chichester began constructing a retaining wall for his property without obtaining the necessary permits. A citation was issued on August 18, 1999, alleging an ordinance violation. Since this was a violation of Chichesters's probation, the court revoked probation and ordered Chichester to appear before the court. On October 5, 1999, Chichester pleaded guilty, and his probation was reinstated with the condition that he “comply with all zoning ordinances [and] codes * * *.”
On August 1, 2000, Chichester was again cited for violating various building codes and ordinances as a result of his continuing attempt to construct a retaining wall without the necessary building permits. The citation included a charge of violating Taylors Falls, Minn., Zoning Ordinance 1000.001, subd. 8, the same charge to which Chichester pleaded guilty on June 1, 1999. Subsequently the city filed a formal complaint, alleging six counts of ordinance violations. Chichester moved to dismiss the complaint, and on December 4, 2000, the court granted the motion. The state is appealing on behalf of the city.
Chichester argues that appellant’s brief was untimely filed. Upon an appeal by the prosecuting attorney, the appellant’s brief, together with proof of service upon the respondent, shall be filed with the clerk of the appellate courts “[w]ithin fifteen (15) days of delivery of the transcripts.” Minn. R. Crim. P. 28.04, subd. 2(3). The Minnesota Supreme Court has held
in a number of cases that generally we will dismiss the state’s appeal if this rule is not complied with unless there are special circumstances which would justify our exercising appellate jurisdiction.
State v. Keith, 325 N.W.2d 641, 642 (Minn. 1982) (citing State v. Olson, 294 N.W.2d 320, 321 (Minn. 1980)). This rule is to be applied strictly. See Olson, 294 N.W.2d at 321 (dismissing appeal when appellant’s brief was filed one day late).
The record indicates that the transcripts, together with the reporter’s certificate as to transcript delivery, were delivered by mail on December 20, 2000. Because the transcripts were delivered by mail, three days must be added to the prescribed period, making the deadline January 8, 2001. Minn. R. Civ. App. P. 125.03, 126.01. The state filed its brief on January 5, 2001, and it was therefore timely filed. Respondent’s request to dismiss the appeal is denied.
The state may appeal “probable cause dismissal orders based on questions of law.” Minn. R. Crim. P. 28.04, subd. 1(1). However, the court can only reverse a pretrial determination if the state clearly and unequivocally demonstrates 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. Kim, 398 N.W.2d 544, 547 (Minn. 1987); see Minn. R. Crim. P. 28.04, subd. 2(2) (requiring state to include in its notice of appeal of pretrial determinations a statement “as to how the trial court’s alleged error, unless reversed, will have a critical impact on the outcome of the trial”). In the present case, since the trial court’s order has the effect of terminating the present prosecution and precluding further criminal prosecution, the state has demonstrated critical impact. See State v. Ohrtman, 466 N.W.2d 1, 2 (Minn. App. 1991) (stating that an order for dismissal plainly has critical impact on a case).
We turn next to examine the grounds on which the trial court dismissed the complaint. A dismissal based on statutory interpretation is a question of law subject to de novo review. State v. Kiminski, 474 N.W.2d 385, 389 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991). Here, the trial court ruled that because Chichester had already pleaded guilty to a similar charge on June 1, 1999, Minn. Stat. § 609.035, subd. 1 (2000), barred the new prosecution. Section 609.035, subdivision 1, reads in part:
[I]f 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.
Municipal ordinance violations that might result in incarceration are included within the ambit of this statute. State v. Johnson, 358 N.W.2d 127, 130 (Minn. App. 1984). Taylors Falls, Minn., Zoning Ordinance 1000.0311 reads:
Any person who violates any provision of this Ordinance shall, upon conviction thereof, be fined not more than seven hundred dollars ($700) for each offense, or be imprisoned for not more than ninety (90) days, or both. Each day that the violation is permitted to exist constitutes a separate offense.
However, because of the provision in the ordinance that “[e]ach day that the violation is permitted to exist constitutes a separate offense,” the bar against serialized prosecution does not apply in the present case. The quoted language has the effect of making the violation continuous, and continuous violations are not subject to the prohibition against serialized prosecutions. In State v. Erickson, 367 N.W.2d 539, 540 (Minn. App. 1985), this court held that a violation of a city nuisance ordinance constituted a continuing offense. The court ruled “repeated prosecutions may proceed over claims of double jeopardy until the nuisance is abated.” Id. (quotation & citation omitted). We concluded that multiple citations were consistent with public policy because it would be unjust to allow individuals to simply pay the fine for the original charge and then leave the nuisance uncorrected. The same reasoning applies here: an owner should not be able to simply pay a one-time fine and then finish a building project without abiding by the appropriate codes and ordinances. See Itasca County v. Rodenz, 268 N.W.2d 423, 424 (Minn. 1978) (violation of a zoning ordinance was of a “continuous nature” allowing for injunctive relief).
For these reasons, the trial court’s dismissal of the complaint based on serialized prosecution is reversed.
Since the case is being remanded, it is essential to address the city’s claim that the trial court erred in employing the rules of civil procedure when it dismissed the complaint. The trial court relied on Minn. R. Civ. P. 8.05(a) and 10.02 in making its decision to dismiss. In particular, the trial court ruled that the complaint was deficient because the claims were not listed in separate, numbered paragraphs and each count merely cited a city ordinance without specifically alleging that Chichester violated the ordinance. By not following this procedure, the court said, the city “failed to identify the precise claims being brought, and thus the complaint [was] insufficient, and [did] not support a finding of probable cause.”
We agree with the city; the rules of civil procedure do not apply to criminal cases. Minn. R. Crim. P. 1.01 states the rules of criminal procedure govern “prosecutions for felonies, gross misdemeanors, misdemeanors, and petty misdemeanors in the district courts in the State of Minnesota.” The rule goes on to state:
Except where expressly provided otherwise, misdemeanors as referred to in these rules shall include * * * local ordinances * * * punishable either alone or alternatively by a fine or by imprisonment of not more than 90 days.
Thus, the complaint here is not subject to the rules of civil procedure, but is governed by the rules of criminal procedure.
In any event, even if the complaint were deficient, the defects noted by the trial court are curable because they were all technical violations concerned with the organization of the complaint. If a complaint is dismissed for a defect that can be cured, under the criminal rules the prosecution can make a motion to amend within seven days. Minn. R. Crim. P. 17.02, subd. 4(3). In addition, dismissal is automatically stayed for seven days. Minn. R. Crim. P. 17 cmt. The state has filed an amended complaint, which should be considered upon remand.
Finally, in his brief, Chichester requests that certain documents in appellant’s brief and appendix be stricken as they are not part of the record. “The record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceeding, if any.” Minn. R. Crim. P. 28.02, subd. 8. In this case, to reach a decision we need only to consider the complaint, the district court ruling, city ordinances, and prior prosecutions. Other than one city ordinance, of which we took judicial notice, the offending documents are part of the record presented to the district court. The documents of which Chichester complains are of no consequence to our decision. The motion to strike is therefore denied as moot.
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
1 Even though this ordinance was not presented to the trial court, both trial and appellate courts have traditionally taken judicial notice of city ordinances. Thompson, Minnesota Evidence § 201.03 (“Minnesota courts consider printed copies of * * * municipal ordinances”); see also Minn. Stat. § 599.13 (2000).