This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare of: G.J.B., Child.
Filed January 17, 2006
Stearns County District Court
File No. J8-04-51134
Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Peter
Cownan (certified student attorney),
Considered and decided by Peterson, Presiding Judge; Dietzen, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from an order denying appellant’s motion to dismiss the extended jurisdiction juvenile (EJJ) prosecution designation of a delinquency petition that charged appellant with offenses related to a home burglary, appellant argues that the state improperly filed the petition in an attempt to circumvent procedural timelines for commencing an EJJ proceeding and the district court erred in failing to issue written findings. We affirm.
After investigating a report that a man was robbed and assaulted in his home, police arrested 17-year-old appellant G.J.B. and his 20-year-old brother. On May 10, 2004, a delinquency petition was filed, and appellant made his first court appearance. During the first appearance, appellant made a speedy-trial demand. In an amended delinquency petition filed on May 14, 2004, appellant was charged with first-degree burglary, accomplice to first-degree burglary, accomplice to second-degree assault, and accomplice to theft. The prosecutor moved to have the alleged offenses certified for adult prosecution. Appellant moved to dismiss the certification motion on the basis that it was not served on appellant or his parents, and on June 11, 2004, the district court dismissed the certification motion after finding that the state failed to serve the motion on appellant’s mother within 10 days of appellant’s first appearance as required under Minn. R. Juv. Delinq. P. 18.02.
On July 27, 2004, the state filed a second delinquency petition charging the same offenses and designating the case as an EJJ prosecution. The state then moved to dismiss the proceeding on the first petition, and the district court granted the motion. Appellant moved to dismiss the EJJ-prosecution designation on the basis that a motion to designate the case as an EJJ prosecution was not filed on a timely basis according to Minn. R. Juv. Delinq. P. 19.01, subd. 4. In a February 14, 2005 order, the district court denied appellant’s motion to dismiss the EJJ prosecution as untimely. This appeal followed.
Appellant argues that the EJJ designation should be dismissed as untimely because under Minn. R. Juv. Delinq. P. 19.01, subds. 3-4, the prosecutor must either designate a delinquency petition as EJJ at the time the petition is filed or file a motion for EJJ designation within ten days of a juvenile’s first appearance, and the prosecutor failed to do either. We disagree.
Depending on the
circumstances of an alleged offense, there are two ways for a prosecutor to
initiate an EJJ proceeding. If an
offense meets the conditions of Minn. R. Juv. Delinq. P. 19.01, subd. 3, the
prosecutor may designate that the case should be an EJJ prosecution.
The court shall commence an extended jurisdiction juvenile proceeding when a delinquency petition filed pursuant to Rule 6:
(A) alleges a felony committed after the child’s sixteenth (16th) birthday and would, if committed by an adult, be a presumptive commitment to prison under the sentencing guidelines and applicable statutes, or a felony offense in which the child allegedly used a firearm; and
(B) the prosecuting attorney designated on the petition that the case should be an extended jurisdiction juvenile prosecution.
This designation may be made at the time the petition is filed, and may be withdrawn by the prosecuting attorney any time before jeopardy attaches.
an offense meets the conditions of Minn. R. Juv. Delinq. P. 19.01, subd. 4, the
prosecutor may initiate an EJJ proceeding by motion.
The prosecuting attorney may make a written motion pursuant to this Rule to have the court commence an extended jurisdiction juvenile proceeding when a delinquency petition has been filed pursuant to Rule 6 alleging a felony offense committed after the child’s fourteenth (14th) birthday. The motion may be made at the first appearance on the delinquency petition, or within ten (10) days after the first appearance pursuant to Rules 5 and 7 or before jeopardy attaches, whichever of the later two occurs first.
There is no dispute that the second delinquency petition alleges a felony committed after appellant’s 16th birthday that would, if committed by an adult, result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes, and appellant does not argue that the circumstances of the offenses alleged in the second petition do not meet the criteria for an EJJ prosecution. Appellant argues that the prosecutor’s attempt to initiate an EJJ proceeding is untimely because (1) at the time the first petition was filed, the prosecutor did not designate on the petition that the case should be an EJJ prosecution as required under Minn. R. Juv. Delinq. P. 19.01, subd. 3; and (2) the prosecutor did not make a written motion to have the court commence an EJJ proceeding within 10 days after appellant made his first appearance on the first petition as required under Minn. R. Juv. Delinq. P. 19.01, subd. 4.
Appellant’s claim that the prosecutor’s attempt to initiate an EJJ proceeding is untimely is based on the premise that the timing requirements of Minn. R. Juv. Delinq. P. 19.01, subds. 3-4, must be calculated with respect to the first petition, not the second petition. Appellant contends that the state may dismiss charges and file the same charges again only in rare circumstances where prosecutors encounter unavoidable circumstances while acting in good faith. Therefore, appellant contends, because the prosecutor’s decision to file the second petition was not due to extenuating circumstances beyond the prosecutor’s control, dismissing the first petition and filing the second petition is an impermissible attempt to manipulate the timing requirements of Minn. R. Juv. Delinq. P. 19.01, subds. 3-4.
But the state’s
authority to dismiss charges and file the same charges again is not as limited
as appellant contends. In City of St. Paul v. Landreville, 301
[j]eopardy has not attached . . . and the prosecution cannot be held to be prohibited from commencing another action should circumstances dictate. Nor is there a showing of a violation of due process, such as harassment, unfairness, loss of witnesses, or the like. Neither does the record indicate a want of prosecution denying the right of speedy trial under the Sixth Amendment. An attempt to so limit prosecutions by the court, through the use of such language, cannot be the controlling factor, for, as here, the facts indicate that the municipality may reopen the matter if it determines it is necessary.
In a juvenile proceeding,
jeopardy attaches when the juvenile court begins to hear evidence. Breed
v. Jones, 421
Appellant characterizes the prosecutor’s decision to dismiss the first petition and file the second petition as a bad-faith attempt to manipulate the timelines in the rules. But if the second petition is authorized, there has been no manipulation, and appellant has not presented a reason why the second petition is not authorized.
argues that the district court failed to issue a written order as required under
Minn. R. Juv. Delinq. P. 19.07, subd. 2(A).
If the prosecuting attorney has designated the proceeding an extended jurisdiction juvenile proceeding pursuant to Rule 19.01, subdivision 3 and the court finds that:
(1) probable cause exists for an offense that, if committed by an adult, would be a presumptive commitment to prison under the Sentencing Guidelines and applicable statutes or alleges a felony offense in which the child allegedly used a firearm; and
(2) the child was at least sixteen (16) years old at the time of the offense, the court shall order that the matter proceed as an extended jurisdiction juvenile prosecution pursuant to Rule 19.09.
The applicable rule does not require the district court to make written findings.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In a May 24, 2005 order, this court construed this appeal “as taken from the February 14, 2005, order for determination as an extended jurisdiction juvenile prosecution.”
 At his first appearance on the first petition, appellant made a speedy-trial demand, but he does not claim that his speedy-trial right has been violated.