State v. Fleck

269 N.W.2d 736 (1978)

STATE of Minnesota, Appellant, v. Orval F. FLECK, Respondent.

No. 49066.

Supreme Court of Minnesota.

July 14, 1978.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Gary Hansen, Sp. Asst. Atty. Gen., St. Paul, William P. Lines, County Atty., Milaca, for appellant.

Michael K. O'Tool, St. Cloud, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

This is an appeal brought by the prosecution pursuant to Rule 29.03, subd. 1, Rules of Criminal Procedure, from an order of the district court dismissing on its own motion incest charges contained in amended complaints charging defendant with incest and first-degree criminal sexual conduct, Minn.St. 609.342(a) and 609.365. We dismiss the appeal as being from a nonappealable *737 order under Rule 29.03, subd. 1, Rules of Criminal Procedure.

Minn.St. 631.21 reads as follows:

"The court may, either of its own motion or upon the application of the prosecuting officer, and in furtherance of justice, order any criminal action, whether prosecuted upon indictment, information, or complaint, to be dismissed; but in that case the reasons for the dismissal shall be set forth in the order, and entered upon the minutes, and the recommendations of the prosecuting officer in reference thereto, with his reasons therefor, shall be stated in writing and filed as a public record with the official files of the case."

The district court on its own motion and "in furtherance of justice" dismissed the incest charges because it felt that the additional expense to the county of prosecuting the incest charges was not justified, since the charges each carried only a 10-year sentence, whereas the first-degree criminal sexual conduct charges each carried a maximum 20-year sentence.

We believe that the interests of justice were not furthered by the dismissal. However, Rule 29.03, subd. 1, Rules of Criminal Procedure, pursuant to which this appeal was taken, does not give the prosecutor the right to appeal from the dismissal. The state's remedy is not an appeal but to either reissue the amended complaint or try to get the court to reconsider its decision.

Appeal dismissed.