This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Steven A. King,

Filed September 14, 1999
Amundson, Judge

Scott County District Court
No. 98-02716

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Thomas J. Harbinson, Scott County Attorney, Brent D. Wartner, Assistant County Attorney, Scott County Government Center, 200 West Fourth Avenue, Shakopee, MN 55379 (for respondent)

Mark C. Stafford, 201 West Burnsville Parkway, Suite 100, Burnsville, MN 55337 (for appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges a DWI charge, arguing that it was withdrawn and cannot in good faith be recharged. We affirm.


On February 23, 1998, a complaint was brought against appellant Steven King, charging him with theft of a motor vehicle. At a June 11, 1998 contested omnibus hearing, the state filed a notice of motion and motion to amend the complaint to include an additional charge of driving under the influence.

At the December 9, 1998 hearing, the state filed a formal amended complaint that included both charges. The district court dismissed the DWI charge for untimeliness because the motion to amend was brought in June 1998 and a formal amendment was not made until December 9, 1998. At the hearing on December 15, 1998, the state dismissed the theft charge and made a motion for reconsideration of the DWI charge. The court allowed the state to file another amended complaint charging the DWI count, and dismissed the theft charge, continuing the matter for yet another proceeding. The re-filed amended complaint was signed on December 18, 1998. At the final hearing on February 4, 1999, King filed a motion to dismiss the DWI charge arguing that it had previously been dismissed and could not be recharged, his motion was denied, and this court granted discretionary review.


It is undisputed that the district court dismissed the DWI charge on December 9, 1998 for untimeliness. The court stated:

As I indicated off the record, we all understand the situation where facts may be developed during a hearing which would lead to an amendment to add additional charges right up to the point in time where the jury begins its deliberations and that can occur * * * .

But we do still have a rule when a demand is made for the complaint on a misdemeanor matter that the state must honor that demand within 30 days, and it has not done so. Since it had not done so, this is a situation not similar to the trial situation where information developed where there is not surprise, where there's been no demand and that type of thing where the case should be legitimately given to a jury. This is a case where the state has been indicating for months that it was going to include a DWI charge and never did. Finally a formal demand was made. It still wasn't done and the formal demand was made more than two months ago, or about two months ago. In any event it's totally outside the time frame the rules require and since the state has not complied based upon this long-standing situation, again defense made its formal demand in October but they were demanding as early as February and June that if they were going to issue something, to issue it. Nothing was done.

So based upon all that, the court is going to dismiss the charge of driving under the influence. That charge is dismissed. The charge that is left is theft of a motor vehicle. That charge can be heard at the time scheduled for trial, which is now set for December 15 at 9:00 a.m.

This language appears to bar the DWI claim, however, the state claims that it can cure the timeliness defect under the rules.

Minn. R. Crim. P. 17.06, subd. 4(3) (1999), entitled "Dismissal for Curable Defect" provides:

If the dismissal is for failure to file a timely complaint as required by Rule 4.02, subd. 5(3), or for a defect that could be cured or avoided by an amended or new indictment, or complaint, further prosecution for the same offense shall not be barred, and the court shall on motion of the prosecuting attorney, made within seven (7) days after notice of the entry of the order granting the motion to dismiss, order that defendant's bail or the other conditions of his release be continued or modified for a specified reasonable time pending an amended or new indictment or complaint.

Under this rule, if an indictment is dismissed for a curable defect, dismissal is automatically stayed for 7 days, during which time the prosecutor may move for a continuance of the stay pending amendment of the defective complaint, or issuance of a new complaint. Id. If the motion is not timely made, further prosecution is barred. Id. at subd. 4; see also State v. Viergutz, 288 N.W.2d 693, 697 (Minn. 1980). Here the motion to amend was made in June 1998 and granted, but the state failed to actually amend the complaint. The actual dismissal was not until December 9, 1998 when the amended DWI charge was dismissed for untimeliness. Rule 17.06 takes effect only after the charge is dismissed.

Therefore, the state argues that it cured the defect by refiling its complaint within the seven-day period, and argues that the court must, on a timely motion of a prosecuting attorney, allow a reasonable time to file an amended complaint. Minn. R. Crim. P. 17.06, subd. 4(3). The timeliness defect found by the district court is curable, and the state is allowed the opportunity to recharge within seven days. Id.

Additionally, the seven days runs from the December 9, 1998 dismissal not including intermediary weekends and holidays; consequently the state had until December 18, 1998, to amend the complaint. The actual amendment was timely because it occurred on December 18, 1998. Furthermore, the district court has the discretion to allow the amendment of a complaint. See State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995) (stating that case law and rules of criminal procedure provide the district court with discretionary authority to determine whether to amend a complaint). We affirm the district court's decision to deny the dismissal of the DWI charge.