This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Carlos Lopez Sosa,



Filed November 16, 2004


Kalitowski, Judge


Anoka County District Court

File No. K3-04-2124


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Respondent Carlos Lopez Sosa pleaded guilty to criminal damage to property in the first degree and gross misdemeanor driving while impaired for intentionally ramming a vehicle occupied by his wife, children, and relatives while he was driving and intoxicated.  At sentencing, the district court stayed adjudications of guilt on the charges over the prosecutor’s objection and placed respondent on probation for five years citing immigration consequences and the fact that if respondent was deported, he would lose contact with his children in Minnesota.  Appellant state challenges the grant of the stays of adjudication.  We reverse.


            Appellate courts review a district court’s imposition of a stay of adjudication to determine if the prosecutor has clearly abused his or her discretion in the charging function.  State v. Colby, 657 N.W.2d 897, 898-99 (Minn. App. 2003).  In Colby,the court of appeals specifically rejected appellate review of the district court’s decision under the abuse of discretion standard set out in State v. Lattimer, 624 N.W.2d 284, 290 (Minn. App. 2001), review denied (Minn. May 15, 2001), because the Lattimer standard conflicts both with supreme court precedent and with the legislature’s expressed preference that a district court adjudicate a defendant guilty following a guilty plea or finding of guilt.  Colby, 657 N.W.2d at 899 (referencing supreme court decisions in State v. Krotzer, 548 N.W.2d 252 (Minn. 1996); and State v. Foss, 556 N.W.2d 540 (Minn. 1996)).


            The state appealed the imposed stays of adjudication as pretrial orders under Minn. R. Crim. P. 28.04, subd.1(1) (2004).  Stays of adjudications are considered “pretrial orders,” subject to appeal by the state.  State v. Thoma, et al., 569 N.W.2d 205, 208-09 (Minn. App.), aff’d mem., 571 N.W.2d 773 (Minn. 1997).  Initially, respondent challenges the state’s appeal contending that the appeal violates his right to due process, is a violation of fundamental fairness, and is improper because the state failed to show critical impact.

            Respondent argues that his due process rights are violated if the state is allowed to appeal a stay of adjudication as a pretrial order because he is not guaranteed an appeal under the rules of criminal procedure.  We disagree.  The supreme court has rejected this argument and has explained why this rule is proper in State v. Verschelde, 595 N.W.2d 192, 196 (Minn. 1999). 

            Respondent also argues that the doctrine of fundamental fairness is violated when a defendant is given criminal sanctions for his actions although a stay of adjudication is not considered a sentence.  But the supreme court in Krotzer held that the district court has authority to impose criminal sanctions as conditions of a stay of adjudication.  Krotzer, 548 N.W.2d at 256.

            Finally, respondent argues that appellant failed to show “critical impact” as required under Minn. R. Crim. P. 28.04, subd. 2(1).  When the state appeals a pretrial order under Minn. R. Crim. P. 28.04, subd. 1(1), a reviewing court will reverse “only if the state demonstrates clearly and unequivocally that the district court erred in its judgment and, unless reversed, the error will have a critical impact on the outcome of the trial.”  State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001) (citing State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987)).

            Here, the prosecutor objected to the use of the stay of adjudication as an inappropriate sanction.  The district court issued the stay to give respondent an opportunity to avoid a conviction by successfully completing probation conditions.  Therefore, by refusing to adjudicate respondent guilty, the district court denied the state the possibility of using appellant’s conviction for enhancement purposes in potential future prosecutions.  We conclude that critical impact was shown given the district court’s refusal to adjudicate respondent guilty.


            Appellant contends the district court erred, arguing that the circumstances of this case and the record do not support a stay of adjudication because there is no evidence of abuse of prosecutorial discretion in charging.  We agree.  The district court’s decision to stay adjudication is within the court’s “inherent judicial power” when the decision is supported by “special circumstances.”  Krotzer, 548 N.W.2d at 254-55.  But the power to stay adjudication is to be “relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.”  Foss, 556 N.W.2d at 541 (emphasis in original); see also State v. Ohrt, 619 N.W.2d 790, 792-93 (Minn. App. 2000) (reversing stay of adjudication when the district court made no findings regarding an abuse of prosecutorial discretion).  The Foss court also noted that “mere disagreement” by the trial court with the prosecutor’s exercise of charging would not constitute “special circumstances” justifying a stay under KrotzerFoss, 556 N.W.2d at 541.   

            The record does not show, and respondent does not argue, that the prosecutor abused his discretion when charging and prosecuting the matter.  Rather, the district court based the stay of adjudication on other grounds, including respondent’s status as a parent facing deportation and separation from his children.  But the appellate courts have rejected attempts to enlarge the definition of “special circumstances” to include other circumstances like avoiding a criminal record (Ohrt, 619 N.W.2d at 792); low degree of injury or harm during commission of offense (Foss, 556 N.W.2d at 541); loss of job (Leming, 617 N.W.2d at 589); and deportation consequences (State v. Prabhudail, 602 N.W.2d 413, 415 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000)).

            In conclusion, as Krotzer, Foss, and their progeny make clear, absent clear abuse of prosecutorial discretion in charging, a district court errs by imposing a stay of adjudication.


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