This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,


Douglas Stephen Silus,



Filed February 12, 2002

Appeal dismissed

Peterson, Judge



Hennepin County District Court

File No. 01041577



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


Michele R. Wallace, Rondoni, MacMillan & Schneider, Ltd., 505 North Highway 169, Suite 175, Minneapolis, MN  55441-6406 (for appellant)


Rachael Goldberger, Jerry Strauss, Strauss & Associates, 250 Second Avenuye South, Suite 240, Minneapolis, MN  55401-2169 (for respondent)



            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a pretrial order dismissing a criminal complaint with prejudice, the state asks to be allowed to initiate a second prosecution.  Because we conclude that the state’s request is a request for an advisory opinion, we dismiss the appeal.


            On May 17, 2001, state troopers arrested respondent Douglas Stephen Silus in Hennepin County for driving while intoxicated.  The Hennepin County District Court has a fast-track policy for alcohol-related traffic offenses that requires a trial to be set within 45 days of the date of a defendant’s first appearance.  Silus made his first court appearance on June 6, 2001, and trial was scheduled for July 18, 2001, at 8:30 a.m.  On June 22, 2001, the trooper who arrested Silus was notified of the trial date.

            On July 18, the scheduled trial date, the parties attempted to negotiate a plea, but when their efforts failed, they went to a courtroom at about 3:00 p.m. to have the case assigned for trial.  Because there was not enough time to hold a Rasmussen hearing before trial that day, the case was scheduled for trial the following day, July 19.

            At about 5:15 p.m. on July 18, the prosecuting attorney was informed that the state trooper who arrested Silus would not be available on July 19 or 20.  On July 19, the prosecutor moved to dismiss the complaint against Silus pursuant to Minn. R. Crim. P. 30.01 because the trooper was not available.  Rather than dismiss the complaint pursuant to rule 30.01, the court dismissed the complaint pursuant to Minn. R. Crim. P. 30.02 and stated that it did so in the interest of justice.  The court also stated that the dismissal was with prejudice.  The district court record does not include a written order.


            It is well established that in determining whether a dismissal of a case prevents further prosecution,

the words ‘with prejudice’ are alone in no way determinative.  In dismissing a case, the court should add supportive reasoning.  Those reasons will speak for themselves as to whether there is some legal or constitutional impediment to the institution of a subsequent proceeding.  Further, this reasoning will eliminate any need by the lower court to comment upon the finality or prejudice of the proceeding before it.  To reiterate, it is not the words utilized by the lower court in its dismissal but rather the basis of the dismissal itself that is controlling for our purposes.


City of St. Paul v. Halvorson, 301 Minn. 48, 51, 221 N.W.2d 535, 537 (1974).  

            In dismissing the complaint, the district court stated that it did so in the interest of justice.  Those words are not supportive reasoning that indicates there is some legal or constitutional impediment to a subsequent prosecution. 

            Citing City of St. Paul v. Halvorson and City of St. Paul v. Landreville, 301 Minn. 43, 221 N.W.2d 532 (1974), the state correctly contends that in criminal cases, the fact that a dismissal is “with prejudice,” does not mean that further prosecution is not permitted.  The state also addresses several circumstances where a subsequent prosecution would not be permitted, such as a violation of a defendant’s right to a speedy trial, and argues that none of those circumstances are present here.  But in spite of the state’s recognition that there is no supportive reasoning in the district court’s order that provides a basis for barring further prosecution and that several circumstances where a subsequent prosecution would not be permitted are not present here, the state asks this court to determine that the state can initiate a second prosecution.  In essence, before the state initiates a second prosecution, it is asking this court to determine that it may do so.

We conclude that the state’s request for relief is a request for an advisory opinion. 

The existence of a justiciable controversy is prerequisite to adjudication.  The judicial function does not comprehend the giving of advisory opinions.  No controversy is presented, absent a genuine conflict in the tangible interests of opposing litigants.


Izaak Walton League of Am. Endowment, Inc. v. Dep’t of Natural Res., 252 N.W.2d 852, 854 (Minn. 1977).  See also City of St. Cloud v. Voigt, 388 N.W.2d 790 (Minn. App. 1986) (trial court’s dismissal of charges “with prejudice” in the interest of justice not appealable);  In re Welfare of J.H.C., 384 N.W.2d 599 (Minn. App. 1986) (trial court’s dismissal of a complaint “with prejudice in the furtherance of justice” was not a final order and therefore not appealable).

            Because the district court’s dismissal of the complaint does not by itself present a legal or constitutional impediment to a subsequent prosecution, and the state has not been prevented from initiating a subsequent prosecution, no justiciable controversy is presented by the dismissal order.  Accordingly, we dismiss the appeal.

            Appeal dismissed.