This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-538

 

 

In the Matter of the Welfare of: G.J.B., Child.

 

Filed January 17, 2006

Affirmed

Peterson, Judge

 

Stearns County District Court

File No. J8-04-51134

 

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Peter Cownan (certified student attorney), 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant G.J.B.)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Janelle P. Kendall, Stearns County Attorney, Janis L. Hovda, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303 (for respondent State of Minnesota)

 

            Considered and decided by Peterson, Presiding Judge; Dietzen, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from an order denying appellant’s motion to dismiss the extended jurisdiction juvenile (EJJ) prosecution designation of a delinquency petition that charged appellant with offenses related to a home burglary, appellant argues that the state improperly filed the petition in an attempt to circumvent procedural timelines for commencing an EJJ proceeding and the district court erred in failing to issue written findings.  We affirm.

FACTS

After investigating a report that a man was robbed and assaulted in his home, police arrested 17-year-old appellant G.J.B. and his 20-year-old brother.  On May 10, 2004, a delinquency petition was filed, and appellant made his first court appearance.  During the first appearance, appellant made a speedy-trial demand.  In an amended delinquency petition filed on May 14, 2004, appellant was charged with first-degree burglary, accomplice to first-degree burglary, accomplice to second-degree assault, and accomplice to theft.  The prosecutor moved to have the alleged offenses certified for adult prosecution.  Appellant moved to dismiss the certification motion on the basis that it was not served on appellant or his parents, and on June 11, 2004, the district court dismissed the certification motion after finding that the state failed to serve the motion on appellant’s mother within 10 days of appellant’s first appearance as required under Minn. R. Juv. Delinq. P. 18.02.

On July 27, 2004, the state filed a second delinquency petition charging the same offenses and designating the case as an EJJ prosecution.  The state then moved to dismiss the proceeding on the first petition, and the district court granted the motion.  Appellant moved to dismiss the EJJ-prosecution designation on the basis that a motion to designate the case as an EJJ prosecution was not filed on a timely basis according to Minn. R. Juv. Delinq. P. 19.01, subd. 4.  In a February 14, 2005 order, the district court denied appellant’s motion to dismiss the EJJ prosecution as untimely.  This appeal followed.[1]

D E C I S I O N

I.

Appellant argues that the EJJ designation should be dismissed as untimely because under Minn. R. Juv. Delinq. P. 19.01, subds. 3-4, the prosecutor must either designate a delinquency petition as EJJ at the time the petition is filed or file a motion for EJJ designation within ten days of a juvenile’s first appearance, and the prosecutor failed to do either.  We disagree.

Depending on the circumstances of an alleged offense, there are two ways for a prosecutor to initiate an EJJ proceeding.  If an offense meets the conditions of Minn. R. Juv. Delinq. P. 19.01, subd. 3, the prosecutor may designate that the case should be an EJJ prosecution.  Minn. R. Juv. Delinq. P. 19.01, subd. 3, states:

The court shall commence an extended jurisdiction juvenile proceeding when a delinquency petition filed pursuant to Rule 6:

(A)      alleges a felony committed after the child’s sixteenth (16th) birthday and would, if committed by an adult, be a presumptive commitment to prison under the sentencing guidelines and applicable statutes, or a felony offense in which the child allegedly used a firearm; and

                        (B)      the prosecuting attorney designated on the petition that the case should be an extended jurisdiction juvenile prosecution.

            This designation may be made at the time the petition is filed, and may be withdrawn by the prosecuting attorney any time before jeopardy attaches.

 

If an offense meets the conditions of Minn. R. Juv. Delinq. P. 19.01, subd. 4, the prosecutor may initiate an EJJ proceeding by motion.  Minn. R. Juv. Delinq. P. 19.01, subd. 4, states:

The prosecuting attorney may make a written motion pursuant to this Rule to have the court commence an extended jurisdiction juvenile proceeding when a delinquency petition has been filed pursuant to Rule 6 alleging a felony offense committed after the child’s fourteenth (14th) birthday.  The motion may be made at the first appearance on the delinquency petition, or within ten (10) days after the first appearance pursuant to Rules 5 and 7 or before jeopardy attaches, whichever of the later two occurs first.

 

There is no dispute that the second delinquency petition alleges a felony committed after appellant’s 16th birthday that would, if committed by an adult, result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes, and appellant does not argue that the circumstances of the offenses alleged in the second petition do not meet the criteria for an EJJ prosecution.  Appellant argues that the prosecutor’s attempt to initiate an EJJ proceeding is untimely because (1) at the time the first petition was filed, the prosecutor did not designate on the petition that the case should be an EJJ prosecution as required under Minn. R. Juv. Delinq. P. 19.01, subd. 3; and (2) the prosecutor did not make a written motion to have the court commence an EJJ proceeding within 10 days after appellant made his first appearance on the first petition as required under Minn. R. Juv. Delinq. P. 19.01, subd. 4.

Appellant’s claim that the prosecutor’s attempt to initiate an EJJ proceeding is untimely is based on the premise that the timing requirements of Minn. R. Juv. Delinq. P. 19.01, subds. 3-4, must be calculated with respect to the first petition, not the second petition.  Appellant contends that the state may dismiss charges and file the same charges again only in rare circumstances where prosecutors encounter unavoidable circumstances while acting in good faith.  Therefore, appellant contends, because the prosecutor’s decision to file the second petition was not due to extenuating circumstances beyond the prosecutor’s control, dismissing the first petition and filing the second petition is an impermissible attempt to manipulate the timing requirements of Minn. R. Juv. Delinq. P. 19.01, subds. 3-4.

But the state’s authority to dismiss charges and file the same charges again is not as limited as appellant contends.  In City of St. Paul v. Landreville, 301 Minn. 43, 47, 221 N.W.2d 532, 534 (1974), the supreme court recognized that before jeopardy attaches, a prosecutor has broad authority to commence another criminal proceeding after an initial proceeding is dismissed.  In Landreville, a defendant charged with assault pleaded not guilty, and following a pretrial chamber conference on the date set for trial, the court ordered that the case be continued for six months without a plea and stated that it was the court’s intention to dismiss the matter after six months if the defendant had not engaged in any unlawful activity that resulted in criminal charges.  301 Minn. at 44, 221 N.W.2d at 533.  Before six months passed, the city filed a motion requesting that the case against the defendant be set for trial.  Id.  The court denied the motion and, in a written order, stated that the matter was permanently dismissed without plea.  Id.  The city appealed, and the supreme court held that the district court’s order was not appealable and dismissed the appeal.  Id. at 48, 221 N.W.2d at 535.  The supreme court explained that the order was not appealable because the statute that permitted an appeal by a city in a prosecution involving an ordinance “was not designed to facilitate appeals from dismissals of cases where the prosecution is not prevented from further pursuing the matter.”  Id. at 46, 221 N.W.2d at 534.  Using the word “permanently” in reference to the dismissal was superfluous, the supreme court explained, because

[j]eopardy has not attached . . . and the prosecution cannot be held to be prohibited from commencing another action should circumstances dictate.  Nor is there a showing of a violation of due process, such as harassment, unfairness, loss of witnesses, or the like.  Neither does the record indicate a want of prosecution denying the right of speedy trial under the Sixth Amendment.  An attempt to so limit prosecutions by the court, through the use of such language, cannot be the controlling factor, for, as here, the facts indicate that the municipality may reopen the matter if it determines it is necessary.

 

Id. at 46-47, 221 N.W.2d at 534.

In a juvenile proceeding, jeopardy attaches when the juvenile court begins to hear evidence.  Breed v. Jones, 421 U.S. 519, 531, 95 S. Ct. 1779, 1787 (1975).  Therefore, jeopardy had not attached when the prosecutor filed the second delinquency petition.  Under the reasoning applied by the supreme court in Landreville, we conclude that because jeopardy had not attached when the prosecutor filed the second petition, there is no reason to conclude that the prosecutor did anything other than comply with the rules when filing the second petition unless there is a reason why the prosecutor did not have authority to file the second petition.  But appellant has not cited any reason why the prosecutor did not have authority to file the second petition;[2] appellant merely argues that the EJJ designation that the prosecutor made at the time the second petition was filed was untimely with respect to the first petition.  The fact that the EJJ designation on the second petition could not meet the timing requirements for an EJJ designation on the first petition is not a reason why the prosecutor did not have authority to file a second petition.  Unless the second petition is not authorized, there is no reason to consider timing requirements related to the first petition.

Appellant characterizes the prosecutor’s decision to dismiss the first petition and file the second petition as a bad-faith attempt to manipulate the timelines in the rules.  But if the second petition is authorized, there has been no manipulation, and appellant has not presented a reason why the second petition is not authorized.

II.

            Appellant argues that the district court failed to issue a written order as required under Minn. R. Juv. Delinq. P. 19.07, subd. 2(A).  But Minn. R. Juv. Delinq. P. 19.06, subd. 1(B), rather than Minn. R. Juv. Delinq. P. 19.07, subd. 2(A), applies when the prosecutor designates on the petition that the case should be an EJJ prosecution.  Minn. R. Juv. Delinq. P. 19.06, subd. 1(B), provides that “[t]he court shall designate the proceeding an extended jurisdiction juvenile prosecution . . . following designation by the prosecuting attorney and findings by the court pursuant to Rule 19.04, subdivision 2(D).”  Minn. R. Juv. Delinq. P. 19.04, subd. 2(D), in turn, provides:

            If the prosecuting attorney has designated the proceeding an extended jurisdiction juvenile proceeding pursuant to Rule 19.01, subdivision 3 and the court finds that:

(1) probable cause exists for an offense that, if committed by an adult, would be a presumptive commitment to prison under the Sentencing Guidelines and applicable statutes or alleges a felony offense in which the child allegedly used a firearm; and

(2) the child was at least sixteen (16) years old at the time of the offense, the court shall order that the matter proceed as an extended jurisdiction juvenile prosecution pursuant to Rule 19.09.

 

The applicable rule does not require the district court to make written findings.

            Affirmed.