This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Paulette Kay Boudreau,




Filed August 5, 2003

Reversed and remanded; motion denied
Forsberg, Judge


Hennepin County District Court

File No. 02073805


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


Jay M. Heffern, Minneapolis City Attorney, Karen S. Herland, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402-2453 (for appellant)


Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN  55401 (for respondent)


            Considered and decided by Hudson, Presiding Judge, Willis, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            After respondent Paulette Kay Boudreau pleaded guilty to misdemeanor prostitution, the district court ordered a stay of imposition of sentence for one year and dismissal and vacation of plea on the condition that Boudreau successfully complete the terms of her probation.  The State of Minnesota appeals.  Because the district court’s order is equivalent to a stay of adjudication, which is an appealable pretrial order, we deny Boudreau’s motion to dismiss this appeal.  But because the district court does not have the authority to stay imposition of sentence and dismiss and vacate upon completion of probation, we reverse and remand. 


            On September 11, 2002, Boudreau was arrested for offering to engage in sex with an undercover police officer in exchange for $40.  She was charged with prostitution, a misdemeanor under Minn. Stat. § 609.324, subd. 3 (2002).

            Boudreau thereafter decided to enter a guilty plea.  The district court indicated that it would stay imposition of sentence for one year and then dismiss and vacate the plea upon Boudreau’s successful completion of probation.  The state objected and stated that it would appeal.  During questioning, Boudreau was advised that should the state appeal the district court’s stay of imposition of sentence and be successful, Boudreau would have the option of withdrawing her plea.

            The court sentenced Boudreau as follows:

The Court is staying imposition of sentence for one year, and that will be for dismissal and vacating of the plea on condition, no prostitution-related charges, no use of alcohol or non-prescribed drugs, and random chemical testing to make sure you are not using.  You complete the Women’s Recovery Center program and follow all of their recommendations for treatment, and also all of the recommendations of Pride, so I want you to continue in Pride also, okay.  The Court is imposing the mandatory minimum fine of $50, however, I am suspending the fine and the surcharges due to your financial circumstances.


As its reasons for staying imposition of sentence, the court noted that Boudreau’s two prior convictions for prostitution were almost ten years ago, in July and November 1993, that she had no other prostitution convictions since that time, and that she appeared to have

taken steps by getting herself into Pride and into Women’s Recovery Center to deal with that issue, and the Court believes that once she has taken care of that issue, I don’t think we will see her back here[.]


Following the state’s filing of its notice of appeal, Boudreau moved to dismiss the appeal as from a nonappealable misdemeanor sentence; her motion has been deferred to this panel.


            This case is identical to State v. Ohrt, 619 N.W.2d 790 (Minn. App. 2000).  In Ohrt, the district court imposed a stay of imposition of sentence on a defendant’s guilty plea to misdemeanor fifth-degree assault and ordered the plea vacated and the charge dismissed at the end of the probationary period.  Id. at 791.  This court accepted jurisdiction over the appeal, concluding that it was equivalent to a stay of adjudication and appealable by the state as a pretrial order.  Id. (citing State v. Thoma, 569 N.W.2d 205, 208 (Minn. App. 1997), aff’d mem., 571 N.W.2d 773 (Minn. 1997)).  Similarly, we accept jurisdiction here, because the district court’s order is equivalent to a stay of adjudication, which is appealable as a pretrial order.  We therefore deny Boudreau’s motion to dismiss this appeal.[1]

            In Ohrt, 619 N.W.2d at 792, this court determined that a district court lacks authority to stay imposition of sentence and vacate and dismiss, absent “special circumstances” supporting a stay of adjudication under State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996) (holding that courts have inherent authority to stay adjudication to correct a clear abuse of the prosecutor’s discretion in charging).  This court discussed Minn. Stat. § 609.135 (1998) and City of St. Paul v. Froysland, 310 Minn. 268, 269, 246 N.W.2d 435, 436 (1976), and concluded that neither provides a district court with authority to stay imposition of sentence and vacate and dismiss.  Ohrt, 619 N.W.2d at 792.

            Following Ohrt, we conclude that the district court here lacked authority when, over the state’s objection, it ordered Boudreau’s guilty plea vacated and the charge dismissed if she successfully completed the terms of her probation.  A district court may stay imposition of a misdemeanor sentence for a period of up to one year and impose reasonable terms of probation.  Minn. Stat. § 609.135, subd. 1 (2002).  If the defendant successfully completes probation, he or she “shall be discharged.”  Minn. Stat. § 609.135, subd. 2(f) (2002).  If imposition of sentence is stayed and a defendant is thereafter discharged, the defendant still receives a conviction, which is “deemed to be for a misdemeanor for purposes of determining the penalty for a subsequent offense.”  Minn. Stat. § 609.13, subd. 3 (2002). 

            Here, however, the district court did not order that Boudreau be discharged from probation.  Instead, it ordered that her guilty plea be vacated and the charges dismissed after one year if she successfully completes probation.  As this court stated in Ohrt, nothing in Minn. Stat. § 609.135 or in Froysland authorizes a district court to dispose of a case as it did here unless there were “special circumstances” supporting a stay of adjudication under KrotzerOhrt, 619 N.W.2d at 792.

            Finally, as this court concluded in Ohrt, we conclude that the district court here erred in staying adjudication.  Id. at 792 (stating that to stay adjudication, “district court must find a clear abuse of discretion in the prosecutor’s exercise of the charging function”).  No special circumstances exist, and the reasons cited by the district court fail to justify a stay of adjudication.  See, e.g., id. at 792 (stating that lack of prior criminal record, amenability to probation, and benefits of avoiding criminal record are not “special circumstances” supporting stay of adjudication); State v. Leming, 617 N.W.2d 587, 589 (Minn. App. 2000) (“fact that a defendant has no criminal record” and his “[r]emorse and cooperation with authorities” are not special circumstances).

            We therefore deny Boudreau’s motion to dismiss this appeal, and reverse and remand the district court’s order staying imposition of sentence.  Although the district court has the authority to discharge Boudreau upon the successful completion of the terms of her probation, it does not have the authority to vacate and dismiss her plea.

            Reversed and remanded; motion denied.


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

[1]  In her brief on appeal, Boudreau also asserts that the matter should be remanded to allow the district court to enter an adjudication of guilt, citing State v. Hoelzel, 639 N.W.2d 605, 608-09 (Minn. 2002).  While we agree that this matter must be remanded, we disagree with Boudreau’s assertion that a remand ends the matter and that we need not address the merits of the case.