IN SUPREME COURT
Court of Appeals
In re State of
Filed: November 2, 2006
Office of Appellate Courts
Beth Luann Hart,
S Y L L A B U S
A district court’s pretrial decision to dismiss a criminal case with prejudice in the interests of justice is not appealable. The state’s remedy is to refile its complaint, and a district court may be compelled, via a writ of mandamus, to make a probable cause determination on the refiled complaint.
Affirmed in part and reversed in part.
Heard, considered, and decided by the court en banc.
O P I N I O N
This case presents the narrow question of whether, after a district court issues a pretrial order dismissing a criminal complaint “with prejudice” and “in the interests of justice,” the state can refile the complaint and obtain a writ of mandamus compelling the district court to make a probable cause determination on the refiled complaint. The court of appeals granted, in part, the state’s petition for writ of mandamus and vacated the district court’s dismissal order, finding the order to be an abuse of discretion. The court of appeals concluded that the state was free to refile the complaint. Because we conclude that the district court had the authority to dismiss the case in the interests of justice, we reverse the decision of the court of appeals to the extent that it vacated the district court order. We also conclude, however, that the state could refile the complaint, and we affirm the court of appeals’ decision to the extent that it ordered the district court to make a probable cause determination on the refiled complaint.
On December 29, 2004, the state filed a complaint charging Beth Luann Hart with four counts of controlled substance crimes in the first degree. The complaint was twice amended and the omnibus hearing was rescheduled at least five times. Ultimately, the omnibus hearing was scheduled for September 16, 2005. The hearing was called at 10:00 a.m. on the morning of September 16. At 10:30 a.m., the prosecutor still had not appeared, and the district court granted Hart’s motion to dismiss. The district court signed a form on September 16 indicating that the case was dismissed for “lack of prosecution—with prejudice.”
Later that day, the state refiled the complaint against Hart. On September 19, the district court issued a formal order and memorandum dismissing the complaint “with prejudice.”  The memorandum indicates that the dismissal was made “in the interests of justice and as a deterrent to continued failures to appear.” Additionally, the memorandum notes that the “strong sanction of a dismissal” was appropriate in the case because the prosecutor was “cavalierly absent from the hearing.” The district court took no action on the refiled complaint except to write on the face of the document, “complaint denied see K6-04-1473” (which is the case number of the action the district court dismissed on September 16).
On October 19, the state petitioned the court of appeals for a writ of mandamus to require the district court to sign the state’s refiled complaint. The court of appeals granted the writ in part and vacated the “September 16 and September 19 dismissal orders.” We granted Hart’s petition for review, and we now affirm in part and reverse in part.
When there are
issues of law, we review the court of appeals’ decision to grant a writ of
mandamus using a de novostandard. McIntosh
On review of a
decision of the court of appeals, we determine whether each element of the
mandamus test is satisfied. McIntosh, 441 N.W.2d at 118. Thus, we ask (a) whether the district court
had either a clear and present duty to perform an act or abused its discretion
by not performing the act, and (b) whether alternative remedies were available
to the party seeking the writ making the issuance of a writ unnecessary.
existence of an adequate legal remedy precludes a party’s ability to seek a
writ of mandamus, we first address whether the state had a right to appeal the
district court’s dismissal of the complaint.
A prosecuting attorney may appeal “from any pretrial order of the trial
court, including probable cause dismissal orders based on questions of
law. However, an order is not appealable
* * * if it is an order dismissing a complaint [in the furtherance of justice]
pursuant to Minn. Stat. § 631.21 * * *.”
Hart argues that
the district court’s order was appealable.
Hart notes that the court can dismiss a case for unnecessary delay by
the prosecution under Minn. R. Crim. P. 30.02, and that dismissals under this
rule are appealable. The district court’s order, however, did
not make any reference to this rule or to an “unnecessary delay.” The order indicates that the complaint was
dismissed “with prejudice.” We have said
that this phrase “is inconsequential” when used, as in this case, before
jeopardy has attached. City of
appeal, our case law dictates that the state’s remedy, when a complaint has
been dismissed “in the interests of justice,” is to refile the complaint. See,
e.g., State v. Streiff, 673
N.W.2d 831, 838 (
Because the state could not appeal from the district court’s dismissal “with prejudice” and “in the interests of justice,” the state did not have an alternative, adequate remedy. Thus, the state was not procedurally precluded from petitioning for a writ of mandamus.
Amicus curiae Minnesota Attorney General and amicus
curiae State Public Defender note that allowing the state simply to refile a
complaint that was dismissed “in the interests” of justice undermines the
district court’s finding that the action needed to be dismissed to serve the
ends of justice. We acknowledge that our
jurisprudence has created a tension between a district court’s authority to
dismiss a complaint in the interests of justice, and the prosecutor’s right,
upon such a dismissal, to refile the complaint.
The limited record before us does not provide a vehicle for us to
address this tension. Accordingly, we
refer to the Supreme Court Advisory Committee on Rules of Criminal Procedure
the question of whether our rules should be amended to delete the prohibition
of appeals by the state from dismissals pursuant to
We turn next to
the substantive question, which asks whether the district court either (1) had
a clear and present duty to perform an act, or (2) abused its discretion by not
performing an act.
however, the state’s argument that the district court abused its discretion by
dismissing the complaint in the interests of justice. We reverse the decision of the court of
appeals insofar as it found, within the context of the limited record available
here, an abuse of discretion by the district court and insofar as it vacated
the district court’s dismissal order.
The district court had the authority to dismiss the case in the
interests of justice pursuant to Minn. Stat. § 631.21 and pursuant to its inherent
authority. The district court properly recognized that
“[i]t is the court’s responsibility to ensure that the calendar runs on time,” and
the district court indicated that it ordered the dismissal “as a deterrent to
continued failures to appear.” These are
legitimate concerns. Indeed, with regard
to the scheduling question the district court seemed to face here, we have said
that “the district court has considerable discretion in scheduling matters and
in furthering what it has identified as the interest of judicial administration
Our conclusion that mandamus was not procedurally precluded and was substantively available does not end the analysis. A court’s decision to grant a writ of mandamus is discretionary. See Minn. Stat. § 586.01 (“The writ of mandamus may be issued to any inferior tribunal * * * to compel the performance of an act which the law specially enjoins as a duty * * * [or] to exercise its judgment or proceed to the discharge of any of its functions.” (emphasis added)). Accordingly, we consider all the circumstances when determining whether a writ of mandamus should issue.
Amicus curiae Minnesota
Attorney General suggests that there is a separation of powers issue in this
case, due to the district court’s interference with the prosecutor’s charging
authority. We have addressed separation
of powers concerns previously, noting that “[u]nder established separation of
powers rules, absent evidence of selective or discriminatory prosecutorial
intent, or an abuse of prosecutorial discretion, the judiciary is powerless to
interfere with the prosecutor’s charging authority.” Krotzer,
548 N.W.2d at 254. We have held that
with regard to “bringing charges and plea bargaining, the discretion rests
almost entirely with the prosecutor.” Streiff, 673 N.W.2d at 836. Indeed, in our discussion of dismissals under
Minn. Stat. § 631.21 in Streiff, we concluded
that “dismissal of a charge under the statute would actually be less intrusive
[than accepting a plea to a lesser charge] because it would be without
prejudice to the reinstatement of charges.”
673 N.W.2dat 838. We also implied that if the dismissal
precluded further charges, then we might impose some restrictions on a district
court’s ability to make such an order. Id. (addressing the argument that a
section 631.21 dismissal might preclude further charges and concluding that “the
statute would raise the same separation of powers issues that were present in Carriere and led the court to imply
restrictions on the authority of the court to interfere with the prosecutor’s
charging function”). More recently, we held that “[s]ound policy
reasons grounded in separation of powers concerns support appellate review when
a district court judge directly interferes with the charging function of the
prosecutor.” State v. Lee, 706 N.W.2d 491, 494 (
At the time of the dismissal, the state had charged Hart but had not proceeded to any further stage of the prosecution. After the dismissal of the complaint, the state then refiled the complaint as an exercise of its “charging function.” According to our previous rulings, “discretion rests almost entirely with the prosecutor” at this stage. Streiff, 673 N.W.2d at 836. Neither the district court nor the court of appeals cited any evidence of “selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion” as required by Krotzer, 548 N.W.2d at 254.
In order to avoid a separation of powers problem, we conclude that mandamus should lie here. We hold that granting the writ of mandamus was proper to prevent a violation of the separation of powers doctrine.
Hart argues that, regardless
of whether mandamus was appropriate, Minnesota Rule of Civil Appellate
Procedure 120.02 was violated because Hart was not directly served with the
petition for writ of mandamus. Hart
concedes, however, that Hart’s attorney was served. We hold that service on Hart’s attorney satisfied
Rule 120.02. See
In conclusion, we hold that the court of appeals erred when it vacated the district court’s dismissal order. We affirm, however, the decision of the court of appeals to the extent that it required the district court to make a probable cause determination on the refiled complaint.
Affirmed in part and reversed in part.
 The form is labeled “Criminal Judgment and Warrant of Commitment.” The “dismissed” box is checked in the section labeled “non-conviction disposition,” and the words “lack of prosecution—with prejudice” are written under the checked box.
 The September 19 order and memorandum was the district court’s written explanation of its decision to dismiss the complaint on September 16.
 The court of appeals had jurisdiction to entertain the state’s petition pursuant to Minn. Stat. § 586.11 (2004) (“[W]here the writ is to be directed to a district court or a judge thereof in the judge’s official capacity, * * * the Court of Appeals has exclusive original jurisdiction * * *.”).
 Minnesota Statutes § 631.21 (2004) states, in pertinent part, that “[t]he court may order dismissal of an action either on its own motion or upon motion of the prosecuting attorney and in furtherance of justice.”
 Rule 30.02 provides that “[i]f there
is unnecessary delay in bringing a defendant to trial, the court may dismiss
the complaint.” We have required a
showing of prejudice for a dismissal under the rule. See,
e.g., State v. Borough, 287
 The court of appeals has also
recognized this rule. See City of West St. Paul v. Banning,
409 N.W.2d 530, 531 (
 Although there is a technical
difference between the phrase “in furtherance of justice” from Minn. Stat. §
631.21 and “in the interests of justice,” we treat these phrases
similarly. See, e.g., State v. Fleck,
269 N.W.2d 736, 737 (
 Minnesota Rule of Criminal Procedure 29.03 is the predecessor rule to the current Minn. R. Crim. P. 28.04. Although this comment was not carried forward to the new version of the rule, the language relating to appeals from section 631.21 orders did not change from Rule 29.03 to Rule 28.04. Thus, the comment continues to provide guidance today.
 The district court did not cite Minn.
Stat. § 631.21 in its memorandum. Amicus
curiae State Public Defender suggests that the dismissal in the interests of
justice may have been ordered pursuant the court’s “inherent authority,” as
opposed to the authority granted it in Minn. Stat. § 631.21, and that “inherent
authority” dismissals may be appealable.
We have not treated “interests of justice” dismissals differently based
on the source of the court’s authority (statutory or inherent powers) and we
decline to do so in this case. See City of St. Paul v. Landreville, 301
 Amicus curiae Minnesota Attorney General
suggests that we should rule that the standard for a dismissal in the interest
of justice is a “clear abuse of the prosecutorial charging function” (the same
as the standard for a stay of adjudication).
 Nothing we have said here should indicate how the district court should resolve this question. Nor should our opinion preclude the district court from considering a dismissal under Minn. R. Crim. P. 30.02 if appropriate at some stage.
 In Streif, we briefly summarized our opinion in Carriere:
To satisfy separation of powers concerns, Carriere conditioned the district court’s acceptance of the defendant’s motion [to plead guilty to a lesser included offense over the opposition of the prosecutor] on whether the prosecutor can “demonstrate to the trial court that there is a reasonable likelihood that the state can withstand a motion to dismiss the charge at the close of the state’s case in chief.” We concluded that if the prosecutor can satisfy this condition, the district court “should refuse to accept the tendered guilty plea.”
N.W.2d at 834 (quoting State v. Carriere,
290 N.W.2d 618, 619, 621 (
 Mandamus has been used in other jurisdictions when separation of powers concerns are implicated. See In re Vasquez-Ramirez, 443 F.3d 692, 700-01 (9th Cir. 2006) (holding that a writ of mandamus was the appropriate remedy based, in part, on separation of powers concerns when a district court refused to accept a defendant’s guilty plea); In re Ellis, 356 F.3d 1198, 1209-10 (9th Cir. 2004) (finding mandamus appropriate when the district court “effectively and improperly inserted itself into the charging decision” by vacating the defendant’s plea).