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MN Judicial Center


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In State v. Olson, the Minnesota Court of Appeals recently smacked down the Minneapolis City Attorney’s Office for acting in bad faith. The act? On the day of trial, the prosecutor told the district court judge if it denies its request to continue a trial date, it will dismiss the case and refile the charges. And, that is exactly what happened. The prosecution basically called its own shots and granted its own continuance request.

In criminal cases, continuance requests happen all the time. Often, one side will call the other and state they need a continuance request and ask whether opposing counsel objects.[1] Then, the requesting party will contact the court by phone or in writing and include the reason for the continuance and whether opposing counsel objects. Depending on the jurisdiction and stage of the case, a clerk or judge will read the request and make a determination whether to grant it.

Cases set for trial are often the most difficult to move. Especially on the day of trial, such as in State v. Olson. In Olson, the prosecutor’s only intended witness, a state trooper, was out of town at a job interview on the day of trial for a Misdemeanor 4th Degree DWI. Sensing the judge would not grant its continuance request, the prosecutor threatened to “take action, as it deems fit . . . to dismiss this case and to recharge it.”

After the judge denied the continuance request, the prosecution refiled the charges. Defense counsel wisely moved to dismiss the new charges, because the prosecution acted in bad faith by circumventing the court’s decision in denying the continuance. A different Hennepin County Judge heard defense counsel’s motion and denied it; stating that the prosecution did not act in bad faith by dismissing the original charges. Olson’s appeal followed and the court of appeals thankfully determined the district court abused its discretion and reversed.

Under Minnesota Rule of Criminal Procedure 30.01, prosecutors may dismiss a case without the court’s approval. It must state on the record, or in writing, the reason for the dismissal. Prosecutors will often dismiss cases for lack of evidence or to refile other charges in light of new evidence. There is no problem with dismissing and recharging, if it is done in good faith.

Here, the prosecution clearly stated on the record that if the trial court denied its continuance request, it would dismiss and refile. The court of appeals did not take the prosecution’s actions kindly. In its opinion, Judge Ross admonishes the prosecution and district court by asking:

“How could district court judges effectively manage their trial calendars if, in any criminal case and at any pretrial moment of the prosecutor’s choosing, the prosecutor could cite rule 30.01 to fashion the state’s own continuance? What is the point of a statute that requires the moving party to show “sufficient cause” for a continuance if one of the parties can use rule 30.01 to obtain a continuance without that showing? What is the significance of the district court’s discretion to deny a motion to continue if the court no longer possesses the authority to prevent the state from unilaterally granting itself a continuance?”

Judge Ross went on to reason that the district court “failed to recognize that the prosecutor’s plainly stated purpose to override the court’s uncontested continuance decision by executive action is never an act of good faith.”

Because of this decision, prosecutors are now put on notice about using this dismiss-and-refile tactic. Next time the defendant is ready to proceed to trial, on the day of trial, and the prosecution’s witness is unavailable, do not be bullied by a dismiss-and-refile threat. In the interests of justice, the court of appeals got it right in State v. Olson.

Robert H. Ambrose is a criminal defense attorney in Minneapolis, Minnesota. He represents people charged with criminal offenses in Minneapolis, St. Paul, and throughout Minnesota.

[1] Parties request to continue cases for reasons such as witness availability, incomplete discovery, calendar conflicts, personal reasons, impending Minnesota blizzard, etc.