This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Bradley Larry Hatch,



Filed ­­­August 8, 2006


Dietzen, Judge


Hennepin County District Court

File No. 5039843


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


Steven M. Tallen, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for respondent)


            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the district court order dismissing a reissued criminal complaint with prejudice and barring further prosecution of respondent for driving while impaired (DWI), careless driving, and hit and run, arguing that the district court erred by dismissing the reissued complaint.   Because we conclude that appellant’s dismissal under Minn. R. Crim. P. 30.01 was not in bad faith and did not violate respondent’s speedy-trial rights, we reverse. 



            In June 2005, respondent Bradley Larry Hatch was charged with two counts of third-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1; careless driving in violation of Minn. Stat. § 169.13, subd. 2; and failing to stop and notify police of damage to property in violation of Minn. Stat. § 169.09, subd. 5; after a witness reported that respondent drove his vehicle into a pole and then fled the scene. 

            On the first day of the scheduled trial in August 2005, appellant notified the court that it was unable to proceed because its chief witness was unavailable to testify due to paternity leave.  When respondent refused appellant’s offer to dismiss the remaining counts if respondent pleaded guilty to careless driving, appellant moved to dismiss the case, stating its intention to promptly recharge respondent.  Over respondent’s objection, the court dismissed the case without prejudice. 

            One week later, appellant reissued the complaint, recharging respondent with the same counts.  A trial was scheduled for early December 2005, but was continued until late January 2005, after respondent served a notice to remove the assigned judge. 

On the first day of the trial, respondent moved to bar further prosecution arguing that, “The state abused its discretion in dismissing and then recharging by doing so exclusively to get a tactical advantage and to circumvent the court’s jurisdiction and violated the due process rights of [respondent].”  Respondent argued that the dismissal and recharging constituted an improper “continuance de facto.”

            The district court granted the motion on two grounds.  First, the district court stated that appellant abused its discretion in dismissing the original complaint under Minn. R. Crim. P. 30.01.  Second, the court indicated that dismissal of the reissued complaint was warranted because the prosecutor’s untimely dismissal of the original complaint, after respondent was fully prepared to proceed to trial, violated respondent’s rights.  This appeal follows.




            Initially, appellant argues that its appeal is proper because a dismissal has a critical impact on its case.  Although respondent did not file a brief, we decide the appeal on the merits.  Minn. R. Civ. App. P. 142.03.

            “Critical impact is a threshold showing that must be made in order for an appellate court to have jurisdiction.”  State v. Baxter, 686 N.W.2d 846, 850 (Minn. App. 2004).  In reviewing a pretrial order, this court “will only reverse the determination of the district court if the state demonstrates clearly and unequivocally that the [district] court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.”  State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (quotation omitted).  A district court’s dismissal of a charge “clearly has a critical impact on the outcome of the trial.”  Id. Therefore, we turn to whether the district court erred by dismissing the charges.


            Appellant argues that it was not an abuse of its discretion under Minn. R. Crim. P. 30.01 to dismiss and recharge respondent’s case, and, therefore, the district court erred by dismissing the reissued complaint and barring further prosecution.[1] 

            Construction of a rule of procedure is a legal question, which we review de novo.  State v. Breuhl, 615 N.W.2d 375, 377 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).  Minn. R. Crim. P. 30.01 provides: “The prosecuting attorney may in writing or on the record, stating the reasons therefor, including the satisfactory completion of a pretrial diversion program, dismiss a complaint or tab charge without leave of court . . . .”  “A dismissal under rule 30.01 is without prejudice, and the state, provided it is not acting in bad faith, may later reindict based on the same or similar charges.”  State v. Couture, 587 N.W.2d 849, 853 (Minn. App. 1999) (upholding prosecutor’s dismissal of original complaint for driving after cancellation and no proof of insurance under rule 30.01, and
later recharging defendant with driving while impaired), review denied (Minn. Apr. 20, 1999) (quotation omitted). 

            Here, appellant dismissed the original complaint, stating on the record its intention to recharge at a later date.  And appellant explained the rationale for the dismissal; namely, that it had just learned that its chief witness was unavailable and unaware of the court appearance due to a clerical mix-up at the police station.  Under the plain language of rule 30.01, this dismissal was a proper exercise of prosecutorial discretion. 

Further, there is no indication that the dismissal and recharging was done in “bad faith.”  See id. (permitting dismissal and later recharging under rule 30.01 in absence of bad faith).  The record demonstrates that appellant believed that the officer would appear for trial; reported the discovery of the officer’s unavailability to both defense counsel and the court as soon as it became aware of the problem; offered to let respondent plead guilty to the lesser disposition of careless driving in lieu of trial; and fully explained the situation to defense counsel and the district court, including its intent to recharge, before dismissing the complaint under rule 30.01.  And the district court acknowledged that the dismissal occurred “for reasons that [the prosecutor] indicated, none of which were his fault and none of which were anyone’s fault[.]”  Consequently, there is no indication of “bad faith” in appellant’s dismissal under rule 30.01. 

The district court also concluded that the dismissal constituted a de factocontinuance that violated respondent’s rights.  Implicitly, the district court concluded that the de factocontinuance resulted in a violation of respondent’s Sixth Amendment right to a speedy trial.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 6, of the Minnesota Constitution.  Whether a pretrial delay constitutes a deprivation of this right depends on the balancing of four factors:  “(1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his or her right to a speedy trial, and (4) whether the delay prejudiced the defendant.”  State v. DeRosier, 695 N.W.2d 97, 108-09 (Minn. 2005) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)). 

The first factor, length of delay, is a triggering mechanism that determines whether consideration of the other factors is necessary.  Barker, 407 U.S. at 530, 92 S. Ct. at 2192.  Here, the record indicates that six months passed between respondent’s not guilty plea and demand for a jury trial in July 2005 and the commencement of his trial on the reissued complaint in late January 2006.  See State v. Kasper, 411 N.W.2d 182, 184 (concluding that “if charges are dismissed and new charges are brought, the time period should not start again from zero with the new complaint” for speedy-trial purposes).  Although not extensive, this six-month delay clearly exceeds the presumptive 60-day time period set forth in Minn. R Crim. P. 11.10, which states “[o]n demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown . . . .”  Such a delay warrants consideration of the remaining factors. 

The second factor focuses on the reasons for the delay and the weights to be assigned to those reasons.  State v. Brooke, 381 N.W.2d 885, 888 (Minn. App. 1986).  “A deliberate attempt to delay trial to harm the defense is weighed most heavily against the State.”  Id.  Here, the delay caused by appellant’s dismissal and recharging resulted from the unavailability of an essential witness, not from “legal maneuvering,” and, therefore, should not be counted against appellant.  Cf. Kasper, 411 N.W.2d at 185 (noting that dismissing and recharging to circumvent a defendant’s right to a speedy trial constituted impermissible legal maneuvering).  And the state immediately recharged appellant after the dismissal.  The additional delay was caused by respondent’s removal of the assigned trial judge.  Thus, the reasons for delay are not solely attributable to and do not weigh heavily against appellant. 

The third factor involves the “frequency and force” of a defendant’s assertion of his right to a speedy trial.  State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).  Here, the record does not indicate that respondent ever invoked his right to a speedy trial under Minn. R. Crim. P. 11.10.  And respondent did not request that the district court dismiss the reissued complaint under Minn. R. Crim. P. 30.02, which empowers the district court to dismiss a complaint “[i]f there is unnecessary delay by the prosecution in bringing a defendant to trial[.]”  See State v. Favors, 482 N.W.2d 226, 227 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992) (noting that defendants who suffer actual prejudice from a delay in prosecution have other remedies, including requesting relief under rule 30.02). 

The fourth factor, whether a defendant has been prejudiced by the delay, encompasses three concerns: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety of the accused; and (3) limiting impairment of the defense.  Barker, 407 U.S. at 532, 92 S. Ct. at 2193.  The court should consider “prejudice from interference with the person’s liberty, disruption of employment, financial hardship, strain on friendships and associations, and anxiety and stress to the defendant and the defendant’s family.”  Brooke, 381 N.W.2d at 889.  Here, respondent was not incarcerated and did not allege that his defense was impaired or that he experienced anxiety in excess of that suffered by any other defendant awaiting disposition of a criminal case.  Consequently, respondent was not improperly denied a speedy trial.

Because appellant properly exercised its discretion under Minn. R. Crim. P. 30.01 in dismissing the original complaint and recharging respondent and, in so doing, did not violate respondent’s speedy-trial rights, the district court erred by dismissing the reissued complaint and barring further prosecution. 


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

[1] Jeopardy was not raised by respondent or the district court, and appellant properly concludes that jeopardy is not an issue in this case.  Jeopardy does not attach until after the jury is impaneled and sworn in.  State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974).  Here, the district court dismissed the jury panel before the jury was selected and sworn in, and, therefore, jeopardy did not attach.