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

Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Angela M. Helseth, Assistant Scott County Attorneys, 206 Scott County Courthouse, 428 South Holmes Street, Shakopee, MN 55379 (for Appellant)

Alberto Miero, 956 Birch View Court, St. Paul, MN 55155 (for Respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

The State of Minnesota appeals the district court's order staying adjudication of one felony count of receiving stolen property. Because there was no clear abuse of the prosecutor's discretion in the exercise of his charging function, we reverse the district court's decision and remand.

[I]t was our intention that the inherent judicial authority recognized in [Krotzer] 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.

State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (emphasis in original).

No facts indicate an abuse of the prosecutor's discretion in this case. First, appellant acknowledged that he knew or had reason to know he had purchased a stolen vehicle. Second, he acknowledged that his intoxication at the time was not a defense. Because he had previously lost his license due to excessive alcohol consumption, he also knew he had an alcohol problem. Third, the prosecutor agreed with the presentence investigation report's recommended guideline sentence of twelve months and one day, stayed, probation for three years, and imposition of a fine. Fourth, no other "special circumstances," such as those which existed in Krotzer, exist here. Therefore, the prosecutor properly exercised his discretion in charging and prosecuting appellant, and the district court's only means to reduce the harshness of the conviction was through leniency in sentencing.

Reversed and remanded to district court for further proceedings.

RANDALL, Judge (dissenting).

I respectfully dissent. The analysis of a trial court's right to use "stay of adjudication" has been wrongfully steered by prosecutors into a debate over whether stays of adjudication interfere with the prosecutor's right to charge out crimes and, thus, becomes a violation of the constitutional separation of powers between the courts, the executive branch, and the legislature. This is a "red herring" of the first order. Stays of adjudication, like stays of execution of sentence, stays of imposition of sentence, and imposition of sentence are all sentencing issues! They are not "charging" issues.

As State v. Krotzer, 548 N.W.2d 252 (Minn. 1996), points out, prosecutors can "charge" whatever they want, including overcharging if they like. That is their province. But it is the exclusive province of the judiciary to sentence, and one form of sentencing is stays; i.e., stays of execution, stays of imposition, and stays of adjudication. With each of the above three, the trial court retains the power to impose conditions, including, but not limited to, restitution, mandatory counselling, and jail confinement as part of the stay.

However, the prosecutor's power to file charges and prosecute an individual was not infringed upon here. As Krotzer states, the Carver County prosecutor investigated the allegations against Krotzer, filed criminal charges, obtained a guilty plea, and recommended a disposition and sentence to the court. The trial court then postponed acceptance of the plea and placed Krotzer on probation, but this did not affect the prosecutor's carefully defined role. See Olson, 325 N.W.2d at 18. The final disposition of a criminal case is ultimately a matter for the presiding judge. As we stated in Olson, once the legislature has defined the range of punishments for a particular offense, it cannot "condition the imposition of the sentence by the court upon the prior approval of the prosecutor." Id. See People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 26, 520 P.2d 405, 410 (1974) (prosecutor may not "veto" trial judge's decision to divert defendant into pretrial treatment program because "disposition is a function of the judicial power no matter what the outcome").

Krotzer, 548 N.W.2d at 254.

The Krotzer court went on to specifically establish that a stay of adjudication can include incarceration as a condition of probation. Id. at 255-56.

State v. Ford, 539 N.W.2d 214 (Minn. 1995), stated in pertinent part:

Whereas the power to define and to fix the punishment for crimes is vested in the legislature, "the imposition of the sentence within the limits prescribed by the legislature is purely a judicial function." State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982).

Id. at 230.

The prosecutorial bar has clouded the issue by continuing to argue vehemently, and at times mean-spiritedly, that the trial court's use of stays of adjudication somehow interferes with their right to decide who will be charged and to decide what will be charged. Nothing could be further from the truth. Trial courts only consider stays of adjudication at the end of the pretrial and post-trial hearings when the end result is a plea of guilty or a jury verdict of guilty. That is identical to the time when trial courts consider other sentencing options such as imposition of the statutory sentence or stay of execution or stay of imposition. If the prosecution argues that stays of adjudication are not the exclusive province of the district court judge, there is nothing to stop prosecutors from arguing that stays of imposition of sentence and stays of execution of sentence should also be in the exclusive control of the state. Does the state want the absolute veto power over stays of imposition and stays of execution as they now want absolute veto power over stays of adjudication?!

There is a constitutional crisis pending here. It is brought on solely by the prosecutorial bar attempting to wrongfully turn sentencing issues into a so-called charging issue.

With candor, the state conceded at oral argument that it had no disagreement with respondent's sentence of a stay of any jail time, straight probation, and imposition of a fine. The state conceded it would have been totally satisfied with stay of imposition of sentence, a sentencing device by which the state acknowledges that after successful completion of probation, a defendant's gross misdemeanor or felony is reduced for purposes of the laws of Minnesota to just a misdemeanor. Since the prosecution conceded the trial court could use as a sentence device a stay of imposition and since the state conceded it had no quarrel with the terms of respondent's stay of adjudication, meaning the probation and the fine, I question the attorney for the state as to why they were bothering to appeal at all. The answer was "we have been told to appeal stays of adjudication as a matter of course." I can only note that answer comes dangerously close to a violation of the ABA standards of conduct for attorneys when their only reason to appeal is to take up the limited time of the courts, spend taxpayers' dollars, and appeal solely because "they don't like what happened."

I dissent and would have affirmed the trial court on all issues.