This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Lance Elliott Kabanuk,




Filed ≠≠≠November 20, 2001


Mulally, Judge*



Hennepin County District Court

File No. 1037459



Francis J. Rondoni, Michele R. Wallace, Rondoni, MacMillan & Schneider, Ltd., 505 North Highway 169I, Suite 175, Minneapolis, MN 55441 (for appellant)



Paul B. Ahern, Paul B. Ahern, P.A., 5101 Thimsen Avenue, Minnetonka, MN 55345 (for respondent)



††††††††††† Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Mulally, Judge.

U N P U B L I S H E D†† O P I N I O N



††††††††††† Respondent moved the district court to dismiss his DWI-related charges on† grounds that the state failed to provide timely discovery.† The district court granted respondentís motion.† The state then filed a formal complaint based on the same charges, and respondent again moved to dismiss, arguing violations of his constitutional right to a speedy trial and Minn. R. Crim. P. 17.06ís requirement that when a complaint is dismissed because of a curable defect, a new complaint be filed within seven days.† The district court granted respondentís motion and dismissed the complaint.† Because we conclude that respondentís constitutional rights were not violated and that Minn. R. Crim. P. 17.06 does not apply to dismissal for a discovery violation, we reverse.†


††††††††††† On December 1, 2000, a state trooper tab charged respondent Lance Elliott Kabanuk with driving under the influence of alcohol, driving with an alcohol concentration of 0.10 or more, and speeding.† At a pretrial conference on December 28, 2000, respondent moved to dismiss the case for the prosecutorís failure to provide an audiotape five days before the pretrial conference in violation of Hennepin Countyís fast-track policy for alcohol-related traffic offenses.† The district court granted respondentís motion and dismissed the charges.

††††††††††† The state filed a formal complaint on April 16, 2001, after receiving the audiotape.† Respondent again filed a motion to dismiss, arguing that because the earlier dismissal was based on a defect in the tab charge, Minn. R. Crim. P. 17.06 required the state to file a new complaint within seven days of the earlier dismissal.† Respondent also argued that his constitutional right to a speedy trial had been violated.† The district court dismissed the charges ďwith prejudice,Ē[1] finding that respondentís constitutional rights to due process, equal protection, and a speedy trial had been violated.† The district court also incorporated the time limitations of Minn. R. Crim. P. 17.06 and 9 in its reasoning.†

††††††††††† The state appeals.



††††††††††† An appellate court independently reviews the district courtís legal determination.† State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).

1.††††††††††† Constitutional Grounds

The district court dismissed the case on multiple constitutional grounds, invoking the constitutional rights to a speedy trial, due process, and equal protection.

A.††††††††††† Speedy Trial

A criminal defendant is guaranteed a speedy trial under the Sixth Amendment to the United States Constitution and Article 1, Section 6 of the Minnesota Constitution. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).† A defendant must be charged with a crime, not merely arrested, for the right to a speedy trial to attach.† State v. Huddock, 408 N.W.2d 218, 220 (Minn. App. 1987).† See also United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459 (1971)).† If charges are dismissed by the court, rather than the prosecutor, the right lapses; it reattaches if and when a new complaint is filed.† See In re Welfare of G.D., 473 N.W.2d 878, 882 (Minn. App. 1991); c.f. State v. Kasper, 411 N.W.2d 182, 184 (Minn. 1987) (holding that if state dismisses complaint, then re-files speedy trial period is not interrupted).††

Respondentís right to a speedy trial first attached with his tab charge on December 1, 2000; it lapsed when the district court dismissed the charges on December 28, 2000; it reattached on April 16, 2001, when the state filed a formal complaint.† Respondent filed a motion to dismiss on May 21, 2001.† In Minnesota, a defendantís speedy trial rights are presumed violated when a delay is over 60 days.† Windish, 590 N.W.2d at 315.† The time line in this case does not create a presumption of a Sixth Amendment violation.† Furthermore, respondentís failure to demand a speedy trial weighs heavily against finding a violation.† See State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993) (noting defendantís failure to make prompt and forceful demand and finding no violation).† Respondentís right to a speedy trial was not violated.†

B.†††††††† Due Process

To show a violation of due process rights resulting from delay in prosecution, respondent must show both actual prejudice and improper state purpose.† Huddock, 408 N.W.2d at 221; Fitzgerald v. Commír of Pub. Safety, 356 N.W.2d 843, 845 (Minn. App. 1984) (citing U.S. v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 2048 (1977)).† Respondent shows no improper state purpose.† The state did not seek a delay in prosecution since its earlier charge was based on the same incident.† The delay was apparently caused by an administrative oversight in getting the tape; this oversight does not rise to the level of an improper state purpose.† Respondentís due process rights were not violated.

C.††††††† Equal Protection

To establish an equal protection violation, respondent must show†

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the governmentís discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional right.


State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984) (citation omitted).

††††††††††† Because respondent is contesting not his prosecution but rather the delay in prosecution, he makes no equal protection argument.† Moreover, he offers no evidence that the prosecution acted in bad faith, that its acts were based on impermissible considerations, or that the delay was caused by anything more than an administrative oversight.† Respondentís equal protection rights were not violated.†

††††††††††† None of respondentís constitutional arguments has merit.

2.†††††††† Rules Violations††

††††††††††† Respondentís reliance on three rules of Criminal Procedure is misplaced.† He relies on Minn. R. Crim. P. 17.06 which provides that, when a court grants dismissal for a defect that can be cured by a new or amended complaint, the prosecution has seven days to file a new or amended complaint or be barred from further prosecution.† But Rule 17.06 does not apply to dismissals for discovery defects.† See State v. Burns, 632 N.W.2d 794, 797 (Minn. App. 2001).† Therefore, the state was not required to file its complaint within seven days of the earlier dismissal.[2]

††††††††††† Respondent also relies on Minn. R. Crim. P. 9.01, subd. 2, which requires a prosecutor to act in good faith and within a reasonable time in discovery matters in felony and gross misdemeanor cases.† This case is neither a felony nor a gross misdemeanor; therefore, the rule does not apply.

††††††††††† Finally, appellant relies on Minn. R. Crim. P. 30.02.† This rule allows a court to dismiss a complaint ď[i]f there is unnecessary delay by the prosecution in bringing a defendant to trial.Ē† Id.† The state filed the new complaint once it received the audiotape from the state patrol.† Because the case had been dismissed earlier for the stateís failure to provide respondent with the audiotape, the state could not have refiled the complaint before receiving the tape and providing it to respondent.† Therefore, the delay was not unnecessary and Rule 30.02 provides no basis for dismissal.††††

The delay in prosecution did not violate respondentís constitutional rights or the rules of criminal procedure.† Consequently, the complaint should not have been dismissed.




* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.


[1] We note that the phrases ďwith prejudiceĒ and ďwithout prejudiceĒ do not apply in criminal cases. See City of West St. Paul v. Banning, 409 N.W.2d† 530, 531 (Minn. App. 1987).


[2] We note that Burns had not been released when the district court issued its opinion.