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

Richard M. Arney, Washington County Attorney, Robert J. Molstad, Jay A. Brunner, Assistant County Attorneys, Washington County Government Center, 14900 61^st Street North, Stillwater, MN 55082 (for appellant)

R. Susan Duffy, 1826 Tower Drive West, Stillwater, MN 55082 (for respondent)

Considered and decided by Davies, Presiding Judge, Kalitowski, Judge, and Foley, Judge.

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

Appellant State of Minnesota challenges the district court's stay of adjudication of respondent Debra J. Kruszek's charge of theft by check. We reverse.

Interference with prosecutorial functions is only justified under very limited circumstances:

Except where the charge is grossly inappropriate in the light of the facts compelling a more serious charge, a trial judge should not ordinarily interfere with the prosecutor's exercise of discretion in charging a defendant.

State v. McEwan, 265 N.W.2d 818, 820 (Minn. 1978). Stays of adjudication are improper absent an indication that the prosecution abused its discretion in charging. State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996). District courts should only rarely interpose on prosecutorial discretion:

Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor's charging authority.

State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996). Krotzer also held, however, that if "special circumstances" are present, a stay of adjudication is within the judiciary's inherent powers to further justice. Id. at 254-55. Subsequently, the supreme court has limited possible interpretations of the requisite "special circumstances":

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 [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.

Foss, 556 N.W.2d at 541.

Here, the district court disagreed with the prosecutor's decision to remove respondent from the diversion program and to prosecute her for writing bad checks. Respondent argued that she was unable to make the restitution payments required by the diversion program because of disabilities that prevented both her and her husband from holding a job. Although a district court's disagreement with the gravity of an offense charged could be addressed in sentencing, it is not a "special circumstance" for which a stay of adjudication is justified. Id. Because respondent deliberately wrote checks on a closed account and then subsequently failed to make the restitution payments she agreed to make as a condition of the diversion program, we cannot say it was a clear abuse of the prosecutor's discretion to charge respondent for this offense.

Respondent also contends that once the county attorney offered her diversion, she was entitled to due process before being removed from the program. We disagree. Because an offer of diversion is within the prosecutor's discretion, the removal from diversion is similarly an act of prosecutorial discretion with no due process rights attached. See Minn. Stat. § 401.065, subd. 1(2) (1996) (referring to pretrial diversion as a decision of the prosecutor).

Reversed.