may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Randy Lee Schmidt,
Filed August 17, 1999
Reversed and remanded
Kandiyohi County District Court
File No. K497847
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for appellant)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for respondent)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
The state appeals from an order granting respondent Randy Lee Schmidt's motion to dismiss two charges alleged in an amended complaint, arguing the district court erred in concluding that Minn. Stat. § 609.035, subd. 1 (1998), bars the state from retrying Schmidt on these charges. We reverse and remand.
In July 1997, the state filed a complaint against Schmidt, alleging eight counts of harassment/stalking, in violation of Minn. Stat. § 609.749, subd. 2(7) (1996) (providing that person who engages in harassing conduct that interferes with another person or intrudes on person's privacy or liberty is guilty of harassment/stalking). After a two-day trial, the jury returned its verdict in November 1997, finding Schmidt guilty of five counts and not guilty of three counts.
Schmidt then moved the district court for a judgment of acquittal on all counts or, in the alternative, for a new trial. In January 1998, the Minnesota Supreme Court released its decision in State v. Machholz, 574 N.W.2d 415, 422 (Minn. 1998) (declaring Minn. Stat. § 609.749, subd. 2(7), unconstitutionally overbroad on its face and as applied), rev'g, 561 N.W.2d 198 (Minn. App. 1997). Following this decision, Schmidt submitted a supplemental motion, calling Machholz to the district court's attention and again requesting the same posttrial relief.
In March 1998, the district court issued an order (1) denying Schmidt's request for entry of a judgment of acquittal on all counts; (2) granting Schmidt's request for a new trial as to the first two counts on which the jury found him guilty; (3) denying Schmidt's request for a new trial as to the other three counts on which the jury found him guilty; (4) granting Schmidt's request to set aside the verdict and to dismiss as to those same three counts; and (5) denying Schmidt's request to set aside the verdict and to dismiss as to the first two counts.
Schmidt appealed to this court from the district court's order of March 1998. Schmidt then appealed from this court's opinion to the supreme court, and on remand, we issued an amended order opinion that reversed only that part of the district court's order that directed a new trial on the first two counts of the original complaint. We remanded the matter to the district court, and on remand, the district court entered a judgment of acquittal on those counts.
While Schmidt's appeal was pending, the state filed an amended complaint, alleging two counts of harassment/stalking, in violation of Minn. Stat. § 609.749, subd. 2(2) (1996) (providing that person who stalks, follows, or pursues another is guilty of harassment/stalking), based on the same conduct alleged in the first two counts of the original complaint. Machholz did not affect section 609.749, subdivision 2(2).
The district court, pursuant to Minn. Stat. § 609.035, subd. 1, granted Schmidt's motion to dismiss the two charges alleged in the amended complaint. This appeal follows.
The state appeals to this court pursuant to Minn. R. Crim. P. 28.04, subd. 1(1) (allowing appeal to court of appeals from any pretrial order of district court). This court will reverse a district court's dismissal of charges only if the state
clearly and unequivocally shows that the district court erred in its judgment, and that the error, unless reversed, will have a critical impact on the outcome of the prosecution.
State v. Bunde, 556 N.W.2d 917, 918 (Minn. App. 1996) (citation omitted); see also State v. Olson, 478 N.W.2d 218, 220 (Minn. App. 1991) (stating that district court's dismissal of complaint has critical impact on outcome of prosecution).
The district court dismissed the two charges alleged in the amended complaint, concluding that Minn. Stat. § 609.035, subd. 1 (1998), which prohibits serialized prosecution, bars the state from retrying Schmidt on these charges. Section 609.035, subdivision 1, provides that
if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Id. The construction of a statute is a question of law, subject to de novo review. State v. Brown, 486 N.W.2d 816, 817 (Minn. App. 1992).
The prohibition against serialized prosecution "shields a defendant `from harassment by repeated prosecution for the same conduct.'" State v. Martinez, 530 N.W.2d 849, 851 (Minn. App. 1995) (quoting State v. Prudhomme, 303 Minn. 376, 378, 228 N.W.2d 243, 245 (1975)), review denied (Minn. June 14, 1995). But "[o]nly a prior conviction or acquittal bars prosecution for other offenses arising out of a single behavioral incident." State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980) (citing State v. Simon, 275 N.W.2d 51 (Minn. 1979); State v. Gaulke, 281 Minn. 327, 161 N.W.2d 662 (1968)). The state claims that the trial did not result in a conviction or acquittal on the first two counts of the original complaint and that, therefore, the district court erred in dismissing the two charges alleged in the amended complaint, which arose out of the same behavioral incidents as those in the original complaint.
When a statute is declared unconstitutional, "`the statute is not a law; it is just as inoperative as had it never been enacted.'" State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998) (quoting McGuire v. C & L Restaurant Inc., 346 N.W.2d 605, 614 (Minn. 1984)). The state therefore argues that, after the jury found Schmidt guilty of five counts of harassment/stalking, in violation of Minn. Stat. § 609.749, subd. 2(7) (1996), the district court should have set aside the verdict and dismissed the five counts for failure to charge an offense. See Minn. R. Crim. P. 26.04, subd. 2 (providing that court, on motion of defendant, shall vacate judgment and dismiss case if complaint does not charge offense); see also Machholz, 574 N.W.2d at 422 (declaring section 609.749, subdivision 2(7), unconstitutionally overbroad on its face and as applied).
The Minnesota Supreme Court has concluded that a conviction set aside on appeal is not a "final conviction under [Minn. Stat. § 609.035] so as to bar the State's prosecution of the other offenses arising out of the same conduct." Spaulding, 296 N.W.2d at 875. Minnesota courts have held that section 609.035 has not barred subsequent prosecutions in other circumstances as well. See, e.g., Gaulke, 281 Minn. at 329, 161 N.W.2d at 663 (noting that dismissal for failure to charge offense did not amount to acquittal so as to bar second prosecution).
We recently concluded that charges tried but unresolved are subject to retrial. State v. Sater, 588 N.W.2d 512, 514 (Minn. App. 1998) ("Retrial is merely the continuation of an incomplete prosecution."), review denied (Minn. Feb. 18, 1999). The state cannot file a new complaint "to begin prosecution of any new charge following a trial that resolved a charge arising from that same behavioral incident." Id. (stating that charges are resolved or "disposed of" by conviction, acquittal, entry of plea, or dismissal). But, like Sater, this case involves an "incomplete prosecution" for which retrial is permitted. See id. at 514; see also Black's Law Dictionary 1221 (6th ed. 1990) ("To `prosecute' an action is not merely to commence it, but includes following it to an ultimate conclusion.").
In the amended complaint, the state alleged two charges not included in the original complaint but based on the same conduct as the first two charges of the original complaint. But neither the jury trial, in light of Machholz, nor the district court's posttrial orders disposed of the first two charges of the original complaint on which the jury found Schmidt guilty. Because there was no conviction or acquittal on these two charges, and because the amended complaint is merely the continuation of an incomplete prosecution for which retrial of the unresolved charges is permissible, the district court clearly erred in concluding that Minn. Stat. § 609.035, subd. 1, bars the state from retrying Schmidt on the two charges alleged in the amended complaint.
The state also claims that Schmidt waived his right to challenge the amendment of the complaint by not raising the issue before the district court or in a cross-appeal. Alternatively, the state asserts that, in any event, the district court properly allowed it to amend its complaint. Because Schmidt did not specifically challenge in the district court the appropriateness of amending the complaint, we need not address this issue. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts generally review only those issues raised before district court).
Schmidt claims that, in addition to Minn. Stat. § 609.035, subd. 1, the Double Jeopardy Clauses of the United States and Minnesota Constitutions also bar a second trial. See U.S. Const. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * * ."); Minn. Const. art. I, § 7 (providing language almost identical with U.S. Const. amend V). But Schmidt sought posttrial relief in the district court. And the court's orders granting him such relief were not based on insufficiency of the evidence. See State v. Harris, 533 N.W.2d 35, 36 (Minn. 1995) (stating that order granting defendant posttrial relief, on grounds other than insufficiency of evidence, does not constitute acquittal barring retrial on double jeopardy grounds) (citing State v. Brecht, 41 Minn. 50, 55, 42 N.W. 602, 604 (1889)); see also United States v. Arache, 946 F.2d 129, 139-40 (1st Cir. 1991) (concluding that district court's order granting defendant's motion for new trial, on grounds other than insufficient evidence, does not bar retrial based on double jeopardy). We therefore conclude that double jeopardy does not bar the state from retrying Schmidt on the two charges alleged in the amended complaint.
Reversed and remanded.
 Counts one, four, and six related to the harassment/stalking of J.L.S. Counts two and seven related to M.N.; counts three, five, and eight related to L.R.N.
 Count one of the amended complaint related to the harassment/stalking of J.L.S.; count two related to M.N.
 The district court set aside the verdict and dismissed three of the five counts, but the court denied Schmidt's motion with respect to the first two counts on which the jury found him guilty. The state claims the district court erred by subsequently entering a judgment of acquittal on these two counts.
 The district court eventually entered a judgment of acquittal on these two charges. But "what constitutes an `acquittal' is not to be controlled by the form of the judge's action." State v. Gurske, 395 N.W.2d 353, 356 (Minn. 1986) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354 (1986) (citations omitted)). Rather, appellate courts must determine whether the judge's ruling "actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. (quoting Martin Linen, 430 U.S. at 571, 97 S. Ct. at 1355). The district court's ruling did not go "to the merits of the case." See id. (citation omitted).