This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-96-618

State of Minnesota,
Appellant,

vs.

Mary Katherine Reiser,
Respondent.

Filed August 13, 1996
Reversed
Davies, Judge

Hennepin County District Court
File No. 96003604


Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 
445 Minnesota St., St. Paul, MN 55101 (for Appellant)

Paul D. Baertschi, 4640 IDS Center, 80 S. Eighth St., 
Minneapolis, MN 55402 (for Appellant)

Faison T. Sessoms, 840 Midland Square Bldg., 331 Second Ave. 
S., Minneapolis, MN 55401 (for Respondent)

	Considered and decided by Willis, Presiding Judge, 
Davies, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge
	State appeals from an order ruling that a gross 
misdemeanor prosecution of respondent was barred by a previous 
dismissal.  We reverse.

FACTS

	Respondent Mary Katherine Reiser was tab charged with 
gross misdemeanor DWI.  At her first appearance in early 
November 1995, she requested the issuance of a formal 
complaint, but when she appeared to receive the complaint in late 
December 1995, it had not yet been filed.  District court Judge 
Fitzgerald denied the state's request for a continuance to file a 
complaint, stating, "Denied. That will be dismissed."
	About two weeks later, the state filed a formal complaint 
charging Reiser with gross misdemeanor charges of driving 
under the influence and having an alcohol concentration of .10 or 
more within two hours of driving, in violation of Minn. Stat. 
 169.121, subds. 1(a), (e), and 3(c)(1) (1994).  After a first 
appearance on the formal complaint, district court Judge Carey 
granted Reiser's motion to dismiss, stating:
This matter was dismissed with prejudice by the 
Honorable Patrick W. Fitzgerald, Judge of the 
District Court.  Thus, the State's remedy was to 
appeal said order to the higher court and seek its 
reversal.  However, it is inappropriate for the State 
to simply ignore the order of Judge Fitzgerald and 
recharge the defendant.


D E C I S I O N

I.

	Though the parties state the issue several ways, there is 
actually only one substantive issue here:  Did Judge Fitzgerald 
bar further prosecution of this case by stating, "Denied. That will 
be dismissed."?
	To prevail in this pretrial appeal, the state must show 
clearly and unequivocally that Judge Carey erred as to the legal 
effect of Judge Fitzgerald's order.  See State v. Kim, 398 N.W.2d 
544, 547 (Minn. 1987) (to prevail on pretrial appeal, state must 
demonstrate "clearly and equivocally" that trial court erred in its 
judgment and that error will have critical impact  on outcome at 
trial unless reversed).  The state met its burden, for, contrary to 
Judge Carey's conclusion, it is unclear from Judge Fitzgerald's 
ruling--or at least not as clear as the rules of criminal procedure 
require--whether he meant to bar further prosecution.
	Under Minn. R. Crim P.  17.06, subd. 4(3),
[i]n misdemeanor cases and also in gross 
misdemeanor cases under Minn. Stat.  169.121 
* * * dismissed for failure to file a timely 
complaint within the time limits as provided by 
Rule 4.02, subd. 5(3), further prosecution shall not 
be barred unless additionally a judge or judicial 
officer of the court has so ordered. 

(Emphasis added.)  A comment to the rule reiterates that,
in misdemeanor cases and also in gross 
misdemeanor cases under Minn. Stat.  169.121 
* * * dismissed for failure to file a timely 
complaint within thirty (30) days pursuant to Rule 
4.02, subd. 5(3), further prosecution is not 
automatically barred, but is barred only if so 
ordered by the court.

Minn. R. Crim. P. 17.06, subd. 4(3) cmt. (emphasis added).
	Judge Fitzgerald did not state that "further prosecution is 
barred."   He simply said, in response to the state's request for a 
continuance, "Denied. That will be dismissed."  This falls short 
of barring further prosecution for, on its face, it merely denies a 
request for a continuance and dismisses the case from the court's 
calendar.  It was error to construe it as doing more than this.
	Minn. R. Crim. P. 4.02, subd. 5(3), contemplates that a 
complaint can be filed even after a charge has been dismissed for 
failure to file a valid complaint.  By his ruling, Judge Carey 
erroneously denied this reality.  We reverse.

II.

	Reiser has moved for an award of $840 in attorney fees 
and $46.38 in briefing expenses incurred on appeal.  We award 
her these amounts pursuant to Minn. R. Crim. P. 28.04, subd. 
2(6), which provides that a defendant forced to respond to a 
pretrial appeal by the state is entitled to reasonable attorney fees 
and costs.

	Reversed.


       As the prosecution was dismissed here, the critical-impact 
requirement is plainly met.
       A line of cases states that even the words "with prejudice" 
alone may not be determinative in a criminal case.  See, e.g., 
City of St. Paul v. Halvorson, 301 Minn. 48, 51, 221 N.W.2d 535, 
537 (1974) ("[I]t is not the words utilized by the lower court in its 
dismissal but rather the basis of the dismissal itself that is 
controlling for our purposes."); City of St. Paul v. Landreville, 
301 Minn. 43, 46, 221 N.W.2d 532, 534 (1974) ("[W]hen 
referring to dismissals the words 'with prejudice' or 'permanently' 
must be held to be superfluous."); City of West St. Paul v. 
Banning, 409 N.W.2d 530, 531 (Minn. App. 1987) ("The phrases 
'with prejudice' and 'without prejudice' are irrelevant to a 
determination of the finality of a dismissal in a criminal case.").