This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-478

 

 

State of Minnesota,
Appellant,

vs.

Shea Lamar Manns,
Respondent.

 

 

Filed October 24, 2006

Reversed and remanded

Peterson, Judge

Dissenting, Randall, Judge

 

 

Ramsey County District Court

File No. K9-05-3095

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN† 55102-1657 (for appellant)

 

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN55414 (for respondent)

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† In this appeal from a stay of adjudication of a felony-theft charge, appellant State of Minnesota argues that the district court erred in staying adjudication when it did not find that there was a clear abuse of the prosecutorial charging function, and the record would not support such a finding.† We reverse and remand.

FACTS

††††††††††† Police officers responding to a call about a male suspect stealing items from parked cars in White Bear Lake found respondent Shea Lamar Manns in the front seat of a car that was registered to someone who lived in the neighborhood.† Respondent got out of the car, picked up a bicycle, and began running through yards.† As he ran, he dropped several bottles of beer and handfuls of change.† The officers arrested respondent.

††††††††††† When he was arrested, respondent was carrying several bottles of beer, a radar detector, a CD player, and about $20 in loose change. †Respondent also had a backpack that contained a folding knife, a digital recorder, a CD case with 100 CDs, and a palm pilot.[1]† An officer also recovered a cigar that respondent had dropped a few feet away.

††††††††††† Respondent was charged by complaint with one count each of felony theft in violation of Minn. Stat. ß 609.52, subds. 2(1), 3(3)(a) (2004 & Supp. 2005) (value of property more than $500 but not more than $2,500) and third-degree burglary in violation of Minn. Stat. ß 609.582, subd. 3 (2004).† Respondent pleaded guilty to the felony-theft charge, and the burglary charge was dismissed.† At the plea hearing, respondent testified that the beer he was carrying belonged to him.† He admitted stealing cigars, the CD case containing 100 CDs, an electronic multiple-listing-service key, about $20 in change, a palm pilot, and possibly a couple of other items.† Respondent admitted that the value of the stolen property exceeded $500.

††††††††††† Respondent had three prior misdemeanor-theft convictions.† The current offense is his first felony.† Over the stateís objection, the district court ordered a stay of adjudication at sentencing and placed respondent on probation.† At the sentencing hearing, the district court stated:

[T]he prosecutor just told me that the law says I canít do a stay of adjudication. . . . And the prosecutor may be right about that.† According to that case [State v. Foss] that would appear to be the case.† But judges are allowed a certain amount of discretion.† Judges are expected to do what we think is the appropriate thing to do on a case-by-case basis, and thatís why Iíve done this here.† Youíve had trouble keeping a job because you have misdemeanor convictions on your record, and this is a felony theft.

 

††††††††††† . . . .

 

††††††††††† . . . So letís see if this helps you out.† But you cannot afford to screw up at all on this.† Given this chance, you should have no problem doing every single thing Iíve laid out here and every single thing the probation officer tells you to do.† You ought to be the star pupil in the Department of Corrections. . . . Do you understand that?† You should be, because not everybody gets a chance like this, especially when the prosecutor opposes it.†

 

††††††††††† The state appealed, challenging the stay of adjudication.† This court dismissed the appeal as untimely.† The supreme court reversed the order dismissing the appeal and remanded for a decision on the merits.† State v. Manns, No. A06-478 (Minn. May 24, 2006) (order).† By order filed May 30, 2006, this court reinstated the appeal.

D E C I S I O N

††††††††††† 1.†††††††† Citing State v. Lee, 706 N.W.2d 491 (Minn. 2005), respondent argues that this appeal should be dismissed as untimely.† In Lee, which involved a stay of adjudication of misdemeanor charges, the supreme court held that stays of adjudication are pretrial orders for purposes of appeal.† Id. at 493.† But in the order reversing this courtís order dismissing this appeal, the supreme court clarified that its

holding in State v. Lee, that stays of adjudication are to be treated as pretrial orders for purposes of appeal, applies only to stays of adjudication in misdemeanor cases.† Appeals from stays of adjudication in felony cases are to be treated as appeals from sentencings, from which an appeal may be taken as provided in Minn. R. Crim. P. 28.02, subd. 2, and 28.04, subd. 1, as the court of appeals correctly held prior to Lee in State v. Wright, 699 N.W.2d 782 (Minn. App. 2005).

 

State v. Manns, No. A06-478 (Minn. May 24, 2006) (order).† The supreme courtís order resolves appellantís claim that this appeal should be dismissed as untimely.

††††††††††† 2.†††††††† Appellant argues that the stay of adjudication of respondentís theft charge does not meet the standard for a stay of adjudication set forth in State v. Foss, 556 N.W.2d 540 (Minn. 1996).† We agree.† In Foss, the supreme court held that the inherent judicial authority to stay adjudication must ďbe relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutorís clear abuse of discretion in the exercise of the charging function.Ē† Id. at 541.† In Lee, the supreme court affirmed the standard for a stay of adjudication that it announced in Foss and reiterated that ďclear abuse of the prosecutorial charging function must be found by the court before it may order a stay of adjudication over the prosecutorís objection.Ē† Lee, 706 N.W.2d at 496.

††††††††††† Under the standard for a stay of adjudication set forth in Foss and Lee, the district court abused its discretion by ordering a stay of adjudication of the theft charge against respondent.† The district court did not find that there was a clear abuse of the prosecutorial charging function, and the findings it made do not support a stay of adjudication.† Minn. Stat. ß 609.52, subd. 2(1) (Supp. 2005), defines theft as intentionally taking possession of anotherís movable property without that personís consent and with the intent to deprive the owner permanently of possession of the property, and Minn. Stat. ß 609.52, subd. 3(3)(a) (2004), makes theft a felony offense when the value of the property taken is greater than $500.† See Minn. Stat. ß 609.02, subd. 2 (2004) (stating that a felony is a crime for which a sentence of imprisonment for more than one year may be imposed).† Respondent admitted that he stole numerous items from cars and that the value of the items exceeded $500.† Therefore, respondentís conduct fits within the statutory definition of felony theft, and there is a basis for a felony-theft charge.† The supreme court has held that the possibility that a defendant may lose a job as a result of a conviction is not a sufficient basis for the district court to stay an adjudication of guilt over the prosecutorís objection.† State v. Twiss, 570 N.W.2d 487 (Minn. 1997).† Therefore, the district courtís finding that respondent has had trouble keeping a job because he has misdemeanor convictions is not a sufficient basis to stay adjudication of the felony-theft charge.

††††††††††† Reversed and remanded.


RANDALL, Judge (dissenting).

††††††††††† I respectfully dissent.† At the sentencing hearing, the district court was straightforward.† The court stated in relevant part:

[T]he prosecutor just told me that the law says I canít do a stay of adjudication. . . . And the prosecutor may be right about that.† According to that case [State v. Foss] that would appear to be the case.† But judges are allowed a certain amount of discretion.† Judges are expected to do what we think is the appropriate thing to do on a case-by-case basis, and thatís why Iíve done this here.† Youíve had trouble keeping a job because you have misdemeanor convictions on your record, and this is a felony theft.

 

††††††††††† . . . .

 

††††††††††† . . . So letís see if this helps you out.† But you cannot afford to screw up at all on this.† Given the chance, you should have no problem doing every single thing Iíve laid out here and every single thing the probation officer tells you to do.† You ought to be the star pupil in the Department of Corrections. . . . Do you understand that?† You should be, because not everybody gets a chance like this, especially when the prosecutor opposes it.

 

I suggest the district court had it right.† Judges on criminal sentencings are allowed a certain amount of discretion and are expected to do the right thing on a case-by-case basis.† In the administration of justice, I see no reason for the state to have even bothered to appeal this sentence, but since they did, I suggest the district court handled it properly and reasonably.† I would have affirmed.



[1] The CDs were valued at $1,000, and the palm pilot was valued at $100.