This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Amy Margery Prior,


Filed July 1, 1997

Reversed and Remanded

Schumacher, Judge

Isanti County District Court

File No. K894624

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

Jeffrey R. Edblad, Isanti County Attorney, G. Paul Beaumaster, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for Appellant)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Schultz, Judge.[*]



Appellant State of Minnesota challenges the district court's grant of a stay of adjudication, claiming that special circumstances did not exist. Respondent Amy Margery Prior claims that because the state did not raise this issue at the sentencing hearing, it is precluded from raising the issue for the first time on appeal. Because we conclude that special circumstances did not exist to justify granting a stay of adjudication, we reverse and remand.


Between January 1991 and March 1993, Prior periodically received public assistance listing her eldest daughter, L.M., as a resident of her household. L.M. had actually been residing with Prior's parents. As a result of the misinformation, Prior received A.F.D.C. and food stamp overpayments. Prior spent a portion of the money allocated for L.M. to pay for L.M.'s rent, food, shelter, and expenses while L.M. resided with Prior's parents. Prior's parents did not have legal custody of L.M. and were not eligible to receive public assistance on L.M.'s behalf.

In 1994, the state charged Prior with six felony counts of welfare fraud based on Prior's misrepresentations regarding L.M.'s residence. In November 1996, the parties submitted a plea agreement to the court that included, among other things, a stay of imposition of sentence and dismissal of five counts of welfare fraud. During the sentencing hearing, Prior asked for a stay of adjudication. The state did not object specifically to the stay. The district court stayed adjudication for five years, stating:

Ms. Prior, * * * I have at least in my memory never considered a stay of adjudication on a welfare violation before. But I also have to in considering the alternative the stay of imposition, I also understand that after five years or when the State would seek to ask that you be off probation, which could be less, it would turn into a misdemeanor, but for the next five years you would be saddled with a felony record and that would affect your ability to get a job. And, of course, what we are trying to do in this whole system is we want to get people back on their feet so that they are not in need of that. And how do we do that but to try and give you every benefit to try and get a job so that you don't continue to ask and need assistance. It's there if you need it. So I have to look at what is best in the situation. * * * It is very important for me to know * * * were you using this money inappropriately. And it sounds from what you're saying, I didn't take testimony, that you were taking this money and helping supplant, your parents who were good enough to take your child, for your mom who had a little over a five dollar an hour job and your dad wasn't working obviously they needed money. * * * I don't know how they could take your child in without that. So I believe you when you say you spent at least a share for that child on this. And for those reasons Ms. Prior I'm going to stay adjudication of your sentence.

The state appeals.


1. Prior asserts that the state may not challenge the stay of adjudication's propriety on appeal because the state did not object. The state's letter brief asserts that the district court stayed adjudication for felony welfare fraud "over the prosecutor's objection[.]" The record does not disclose an objection.

Usually, we will not decide issues which are not first addressed by the trial court and are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure. * * * We may, however, at our discretion, decide to hear such issues when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party.

State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (citations omitted). This rule from Sorenson is equally applicable when a party fails to object. See State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993) (holding criminal defendant waived right to challenge award of restitution because he did not object to restitution during plea hearing or sentencing), review denied (Minn. Dec. 22, 1993); State v. Batzer Const. Co., 405 N.W.2d 523, 526-27 (Minn. App. 1987) (holding "by failing to object at the time of sentencing to waiver of the surcharge * * *, the State forfeited its right to appeal"), review denied (Minn. July 15, 1987). Thus, the question becomes whether the interests of justice require that we decide this case.

To decide what the interests of justice mandate, we examine whether the district court violated the separation of powers doctrine in this case. The state asserts that by staying adjudication instead of abiding by the terms of the plea negotiation, the district court usurped the power of the executive branch of government. See State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996) (holding power to decide what charges to file against a criminal defendant rests exclusively within domain of executive branch under Article III, Section 1 of Minnesota Constitution). The judiciary is ordinarily powerless to interfere with the prosecutor's charging authority. Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668-69 (1978)). "The final disposition of a criminal case is ultimately a matter for the presiding judge," however, and once the legislature has defined the range of permissible punishments, it cannot "'condition the imposition of the sentence by the court upon the prior approval of the prosecutor.'" Id. (quoting State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982)). A judge may stay adjudication in accordance with a judge's capacity to dismiss under Minn. Stat. § 631.21 (1996). Id. at 255. Specifically, a judge may stay adjudication in lieu of abiding by the terms of a plea agreement without impinging upon prosecutorial powers when a stay of adjudication is necessary for the "furtherance of justice" and is warranted by "special circumstance[.]" See id. at 254-55 (upholding stay of adjudication because of special circumstances of Krotzer's case). Thus, the interests of justice require that we determine whether a stay of adjudication was necessary and justified by special circumstances.

2. The state claims no special circumstances existed. In State v. Foss, 556 N.W.2d 540 (Minn. 1996), the Minnesota Supreme Court clarified when special circumstances are present, stating:

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. * * * [However,] [i]t 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 injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.

Id. at 540-41.

After Foss, in an unpublished decision that was later reversed by order of the Minnesota Supreme Court, this court analyzed a case similar to the one here. State v. Hauer, C5-96-249 (Minn. App. Sept. 3, 1996), rev'd, (Minn. Dec. 11, 1996). In Hauer, the defendant was charged with felony theft for wrongfully obtaining public assistance. Hauer asked for a stay of adjudication because she was obtaining an education and receiving grants that would be lost with a felony conviction. The trial court granted the stay of adjudication because Hauer had previously paid restitution. We affirmed. Id., unpub. op. at 3-4.

In reversing, the supreme court quoted this court's dissent, stating:

Anyone convicted of a crime must deal with the personal effects of the conviction. In my view, it is not the business of the judiciary to use its inherent powers to enable a person convicted of a crime to relieve the personal consequences that commonly attend the conviction.

State v. Hauer, C5-96-249 (Minn. Dec. 11, 1996). The supreme court continued, stating:

In almost every case of felony theft by wrongfully obtaining assistance, a case can be made that it might make more sense to stay adjudication. And it may be that the legislature at some point will give trial courts broader authority to stay adjudication. Under the present circumstances, however, to allow trial courts to routinely stay adjudication in cases like this is in effect to give trial judges the power now given to prosecutors.

In summary, we do not find anything in the record to support the conclusion that "special circumstances" like those in Krotzer were present or that the prosecution in any way abused its broad discretion in charging the defendant with felony theft for wrongfully obtaining public assistance. As we said in another case, State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981), "The purpose of the trial judge's [decision], which was to avoid burdening the defendant with a felony criminal record, could be substantially accomplished by staying the imposition of sentence rather than by staying execution of sentence."


Despite Prior's attempts to distinguish Hauer, we conclude the supreme court's rationale for reversing in Hauer is not distinguishable from the case at bar. In Hauer, the supreme court was aware that Hauer's reason for requesting a stay of adjudication was so that she may continue pursing her education and, presumably, discontinue her dependence on public assistance. Despite these circumstances, the supreme court concluded that there were not "special circumstances" to justify the trial court's stay of adjudication. Relying on Hauer, we determine that no special circumstances existed in this case. Thus, the stay of adjudication was an abuse of discretion.

Reversed and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.