This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Mohmed Elsayed Eldeeb,


Filed August 11, 1998

Reversed and remanded; motion granted

Schumacher, Judge

Dissenting, Randall, Judge

Stearns County District Court

File No. T0981155

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jan F. Petersen, City Attorney, Brian L. Williams, Assistant City Attorney, St. Cloud City Attorney's Office, 400 Second Street South, St. Cloud, MN 56301 (for appellant)

Carol M. Klaphake, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.



The State of Minnesota appeals from an order staying adjudication of respondent Mohamed Elsayed Eldeeb's petty misdemeanor guilty plea. Eldeeb moves for attorney fees and costs on appeal of $2,312.50, under Minn. R. Crim. P. 28.04, subd. 2(6) (allowing reasonable costs and attorney fees to defendant for services made necessary when prosecution appeals). We reverse and remand for further proceedings. We grant Eldeeb $2,000 in attorney fees and costs.


On January 22, 1998, Eldeeb was backing out of a driveway when he struck an unattended vehicle that was legally parked on the street. Eldeeb left the accident scene, but was subsequently identified as the driver of the striking vehicle. A St. Cloud police officer issued Eldeeb a citation for petty misdemeanor inattentive driving under Minn. Stat. § 169.14, subd. 1 (1996).

Prior to his scheduled court trial, Eldeeb agreed to plead guilty. The court negotiated a plea agreement with Eldeeb, with little input or approval from the prosecutor. The court then stayed adjudication and informed Eldeeb that the charge would be dismissed in three months on the conditions that Eldeeb not be charged with or convicted of any misdemeanor or greater traffic offenses, that Eldeeb pay restitution to the owner of the vehicle he struck, and that Eldeeb pay $60 for costs of prosecution. This appeal followed.


1. Eldeeb initially argues that this appeal should be dismissed, claiming the prosecutor never objected to the trial court's stay of adjudication and, in fact, assisted the trial court in determining the costs of prosecution. However, a reading of the transcript establishes that on two separate occasions, the trial court expressly told Eldeeb that the state could appeal the court's actions. Thus, the court and the parties contemplated that the state would appeal this matter. We therefore reject Eldeeb's argument that this appeal should be dismissed. See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (within appellate court's discretion to decide issue in interests of justice and when neither party unfairly surprised).

A trial court has "inherent judicial power" to stay adjudication if "special circumstances" exist warranting this "unusual judicial measure[.]" State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996). A stay of adjudication should be used only "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.

State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (emphasis in original). The trial court in this case failed to specifically refer to any "special circumstances," other than the fact that it considered its stay of adjudication as an effort to achieve a "halfway point" between the parties and to "make this easy." Eldeeb argues that the following facts, which may be gleaned from the record,[1] constitute "special circumstances": (1) Eldeeb was unaware that he had struck the other vehicle while he was backing out of a driveway; (2) there was no evidence of speed or inattentive driving by Eldeeb, which are elements of inattentive driving under Minn. Stat. § 169.14, subd. 1 ("No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions"); and (3) the other vehicle sustained only minor damage, which was satisfied by Eldeeb's insurance.

Eldeeb further argues that this case presents an example of a prosecutor's abuse of the charging function because: (1) this was only a petty offense based upon a police officer's citation, and it was never reviewed by the prosecutor prior to its issuance or by the district court to determine probable cause; and (2) the trial court summarized the prosecutor's charging rationale as "every traffic accident must be cited for some reason" and expressed its concern "about the use of [the] statute [169.14, subd. 1] as a catch-all."

While these facts may indicate that the prosecutor had a weak case or that mitigating factors existed which might excuse Eldeeb's conduct, they are not "special circumstances" to warrant the trial court's "unusual judicial measure" of ordering a stay of adjudication. Krotzer, 548 N.W.2d at 254. Appellate courts recognize that a trial court has other, proper options available when it believes a defendant has been mischarged or when it believes mitigating circumstances are present, including dismissal of the charge or imposition of a lenient sentence, even in petty misdemeanor prosecutions. See Foss, 556 N.W.2d at 541 (trial court free to be lenient in sentencing defendant); Krotzer, 548 N.W.2d at 255 (district court may dismiss charges "in furtherance of justice" pursuant to Minn. Stat. § 631.21); State v. Thoma, 569 N.W.2d 205, 208-09 (Minn. App. 1997) (reversing stays of adjudication in petty misdemeanor cases because no special circumstances present), aff'd, 571 N.W.2d 773 (Minn. 1997). Absent "special circumstances," a trial court cannot order a stay of adjudication merely because it disagrees with the prosecutor's charging rationale.

Eldeeb finally argues that, independent of Krotzer, the long-standing rule is that a trial court possesses sentencing discretion, and that this matter is more a sentencing issue. We disagree. Appellate courts treat and analyze stays of adjudication as pretrial orders, not as sentencing issues. See, e.g., Thoma, 569 N.W.2d at 207-08. The trial court's stay of adjudication is reversed and this matter is remanded for further proceedings.

2. Eldeeb seeks attorney fees and costs on appeal under Minn. R. Crim. P. 28.04, subd. 2(6) ("[r]easonable attorney's fees and costs incurred shall be allowed to the defendant on such appeal which shall be paid by the governmental unit responsible for the prosecution involved").

The state opposes Eldeeb's motion and insists that Eldeeb's decision to contest the state's appeal and incur costs and fees is unsupported by the facts of this case, contradicts established case law, and "borders on bad faith." We disagree. Although most appellate cases since Krotzer have reversed stays of adjudication, all recognize that a stay of adjudication might be proper, given special circumstances. In addition, while it appears that the state made some effort to discourage Eldeeb from participating in this appeal and that Eldeeb's attorney responded with a motion for attorney fees, we cannot agree that Eldeeb's position is without merit, unfounded or asserted in bad faith. Because Eldeeb had a right to respond to this appeal, we grant his motion for attorney fees and costs of $2,000, under Minn. R. Crim. P. 28.04, subd. 2(6).

Reversed and remand; motion granted.

Randall, Judge (dissenting).

I respectfully dissent.

[1] The record includes all documents filed in the trial court, including the incident report, the traffic accident report, the officer's investigative report, and the traffic citation. See Minn. R. Civ. App. P. 110.01 (appellate record includes papers filed in trial court, exhibits, and transcript of proceedings, if any). We therefore reject the state's claim that these documents must be stricken from Eldeeb's appendix.