Continuance for Dismissal Over State’s Objection Limited to Clear Abuse of Prosecutorial Discretion

State v. Strok,, Minn.Ct.App., 7/20/10.  Ms. Strok stole some stuff from Macy’s at the Ridgedale Mall; the state charged her with gross misdemeanor theft.  The trial judge continued the case for dismissal for one year over the state’s objections.  It turns out that had Ms. Strok shoplifted enough to get herself charged with a felony she likely would have gone to Property/Drug Court where she would have got a diversion.  The city of Minnetonka didn’t see it that way and filed a pretrial appeal.

Absent an agreement, a court may order a continuance for dismissal only to avoid 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, 540 (Minn. 1996).  That the trial court here thought that a diversion was commensurate with dispositions of similar cases is far short of a finding of a clear abuse of discretion.  The appellate court sends the case back to district court.