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,
Cynthia Ann King,
Filed July 8, 1997
Reversed and remanded
Scott County District Court
File No. 968436
Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)
Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Angela M. Helseth, Brent Schafer, Assistant County Attorneys, 206 Scott County Courthouse, 428 South Holmes Street, Shakopee, MN 55379 (for Appellant)
John M. Stuart, State Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for Respondent)
Timothy C. Cook, Moore, Costello & Hart, PLLP, 1350 Craig-Hallum Center, 701 Fourth Avenue South, Minneapolis, MN 55415-1823 (for Respondent)
Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]
The State of Minnesota appeals the district court's order staying adjudication of one felony count of financial transaction card fraud. Because we conclude that there was no clear abuse of the prosecutor's discretion in the exercise of the charging function, we reverse the district court's order and remand for sentencing.
On May 3, 1996, King called the victim's home and left a message on her answering machine admitting that she had stolen the victim's credit card and used it to obtain money. Three days later, King called the Prior Lake Police Department and confessed to the crime.
On October 17, 1996, respondent pleaded guilty to one felony count pursuant to a plea agreement providing that the other felony count would be dismissed and the prosecutor would recommend a stay of imposition of sentence pursuant to Minn. Stat. § 609.135 (1996). On December 9, 1996, King appeared in district court for sentencing before a different judge. Following allocution, King requested a stay of adjudication. The district court agreed, and over the prosecutor's objection, ordered a two-year stay of adjudication. (Sent. T. 10). The conditions of the stay were that King (1) perform 120 hours of community service work related to her field of psychiatric nursing, (2) pay restitution in the amount of $1,061.98 to Chase Visa, (3) submit verification of completion of the Vanguard program (a treatment program for compulsive gamblers) and follow her after-care plan, (4) keep the court informed of her residence and employment, and (5) remain law-abiding. This appeal by the state followed.
In cases following Krotzer, the supreme court has emphasized that stays of adjudication authorized in Krotzer were meant to be used sparingly and only where an injustice resulted from the prosecutor's clear abuse of discretion in bringing a charge. See e.g. State v. Cash, 558 N.W.2d 735, 735-36 (Minn. 1997) (reversing stays of adjudication of DWI charges for three defendants); State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (reversing stay of adjudication in "typical case of misdemeanor assault" finding that no "special circumstances" indicated that the prosecution had "in any way abused its broad discretion in charging the defendant with misdemeanor assault"). In Foss, the supreme court clarified the Krotzer decision stating:
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 that case 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.
Foss, 556 N.W.2d at 541.
Here, the district court found that a stay of adjudication was justified by these special circumstances: (1) King's immediate remorse, (2) her cooperation with authorities, (3) the fact that she did "not jack the State around," and (4) her compulsive gambling disorder. On appeal, King argues that these factors warrant a stay of adjudication because without her confession she likely would not have been charged and because a criminal record may impede her ability to practice in her field of psychiatric nursing. First, we find that the record does not support King's contention that without her confession she would have not been charged with the crime. The complaint indicates that King was a suspect before she contacted the police. Second, as indicated in the dissent in State v. Hauer, No. C5-96-249 (Minn. App. Sept. 3, 1996), review granted (Minn. Dec. 11, 1996):
Anyone convicted of a crime must deal with the personal effects of the conviction. * * * [It] is not the business of the judiciary to use its inherent powers to enable a person convicted of crime to relieve personal consequences that commonly attend the conviction.
Moreover, the factors cited by the district court are not the type of special circumstances contemplated by the supreme court in Foss. Here, no facts even remotely show that the prosecutor abused his discretion in charging King. Accordingly, we have no difficulty concluding that the prosecutor's decision to bring charges was not a "clear abuse of discretion in the exercise of the charging function." See Foss, 556 N.W.2d at 541. Finally, the district court could have taken these factors into account by granting King favorable sentencing treatment without repudiating the charging decision. See id. at 441 (district court may take into account severity of offense in allowing stay of imposition of sentence); see also State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981) (district court could avoid burdening defendant with felony criminal record by staying imposition of sentence). Had the district court stayed imposition of King's sentence, and she successfully fulfilled the conditions of the stay, King's conviction would not result in a felony on her record.
We reverse the order staying adjudication and remand to the district court for sentencing in accordance with law.
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.