may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jamie Kay Ganske,
Filed June 16, 1998
Reversed and remanded
Washington County District Court
File No. K7971800
Tom Foley, Washington County Attorney, Robert J. Molstad, Jay A. Brunner, Assistant County Attorneys, 14900 61st Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for appellant)
Brian B. Huling, Calhoun Square, Suite 309B, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for respondent)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Mansur, Judge.*
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
U N P U B L I S H E D O P I N I O N
Appellant State of Minnesota argues that the district court erred in staying adjudication of a criminal charge against respondent Jamie Kay Ganske. We reverse and remand.
Ganske was charged with aiding and abetting theft of an automobile in violation of Minn. Stat. § 609.52, subd. 2(17) (1996), and aiding and abetting theft in violation of Minn. Stat. § 609.52, subd. 2(1). At her pretrial hearing, Ganske pleaded guilty to aiding and abetting theft of an automobile. The state dismissed the other charge.
The presentence investigation report recommended that the court stay adjudication and place Ganske on probation. The court, over the state's objection, stayed adjudication, placed Ganske on probation for five years, and ordered her to pay $1,072.23 in restitution and a $300 fine.
In State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996), the supreme court explained that its holding in Krotzer was
that if "special circumstances" are present, then a trial court may stay an adjudication of guilty over the prosecutor's objection without violating the separation-of-powers doctrine.
In Foss, the court further explained:
It was not our intention that mere disagreement by the trial court with the prosecutor's exercise of the charging discretion would constitute "special circumstances." Rather, it was our intention that the inherent judicial authority recognized in [Krotzer] 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.
Id. at 541.
Under Krotzer and Foss, the district court could stay adjudication only to avoid an injustice resulting from the prosecutor's clear abuse of discretion in deciding to charge Ganske. Appellant contends that because the district court found that "all counts of the Complaint are supported by probable cause," there was no abuse of discretion in charging Ganske. Therefore, appellant concludes, the district court should not have interfered with the prosecutor's exercise of discretion.
Appellant's contention that because there was probable cause to support all counts in the complaint, the district court should not have interfered with the prosecutor's discretion in charging Ganske is inconsistent with Krotzer. The facts in Krotzer were undisputed. 548 N.W.2d at 253. When Krotzer was charged with criminal sexual conduct, he had disclosed to a detective that he had engaged in consensual sexual intercourse with his 14-year-old girlfriend. Id. Krotzer admitted knowing that his girlfriend was about 14 or 15 years old. Id. Although the Krotzer opinion does not explicitly state that there was probable cause to support the criminal sexual conduct charge, it is clear that there was probable cause. See Minn. Stat. § 609.344, subd. 1(b) (1994) (statute under which Krotzer was charged). Nevertheless, the stay of adjudication was affirmed because it was warranted by the special circumstances of the case. Krotzer, 548 N.W.2d at 254-55. We conclude that under Krotzer, the existence of probable cause does not, by itself, prevent the district court from exercising its inherent power to stay adjudication. Even where there is probable cause, adjudication may be stayed under special circumstances.
Appellant argues that there are not special circumstances warranting a stay of adjudication in this case. We agree. In explaining its reason for staying adjudication, the district court stated:
But it appears to me that her role in this is less than those of the other co-defendants, and with her clean record and with the guidelines established for the policies of diversion by the County Attorney's Office it appears to me that diversion is appropriate.
The supreme court has provided little guidance in determining whether the circumstances of an individual case are special circumstances warranting a stay of adjudication. Thus far, only the circumstances in Krotzer have been determined by the supreme court to be such special circumstances that a stay of adjudication was warranted. But in Foss, the supreme court did state:
The case appears to be a typical case of misdemeanor assault. To the extent that the assault was less serious than the typical case of misdemeanor assault, the trial court was free to be lenient in sentencing the defendant, as by staying imposition of sentence with minimal conditions.
Foss, 556 N.W.2d at 541.
As in Foss, the mitigating circumstances in this case are not special circumstances warranting a stay of adjudication. To the extent that Ganske's offense was less serious than the typical case of aiding and abetting theft of an automobile, the district court was free to be lenient in sentencing. But Ganske's circumstances do not differ so greatly from the typical theft of an automobile case that they constitute special circumstances warranting a stay of adjudication.
The district court also concluded that it had the power to place Ganske in a diversion program because pursuant to State v. Olson, 325 N.W.2d 13 (Minn. 1982), when the legislature provides power to the prosecution to do an act it also provides that authority to the judiciary.
Olson does not hold that when the legislature provides power to the prosecutor to perform an act, it also provides authority to the judiciary to perform the act. Olson holds that because the imposition of a sentence within the limits prescribed by the legislature is purely a judicial function,
once the legislature has prescribed the punishment for a particular offense it cannot, within constitutional parameters, condition the imposition of the sentence by the court upon the prior approval of the prosecutor.
Id. at 18.
Reversed and remanded.