In the Matter of the Welfare of: D.E.B.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C6-98-1530

In the Matter of the Welfare of:

D.E.B.

 Filed March 2, 1999

 Affirmed

 Mulally, Judge[*]

Wright County District Court

File No. J49850868

Thomas C. Plunkett, Brent G. Eilefson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, Saint Paul, MN 55101 (for appellant D.E.B.)

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Wyman A. Nelson, Wright County Attorney, Thomas N. Kelly, Scott M. Sandberg, Assistant County Attorneys, 10 Second Street Northwest, Room 150, Buffalo, MN 55313 (for respondent)

Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Mulally, Judge.

 U N P U B L I S H E D O P I N I O N

 MULALLY, Judge

Appellant D.E.B. challenges the Wright County court's denial of his motion to dismiss and granting of the state's motion to certify him for trial as an adult. We affirm.

 FACTS

On October 17, 1997, a juvenile died after being shot in the abdomen while duck hunting in Wright County with two other juveniles, including D.E.B. Wright County police officers interviewed witness J.D.C. and D.E.B. Both boys said that while they were hunting with the victim, a duck flew into their hunting area, and, as D.E.B. raised his gun to shoot the duck, the victim stood up and was shot.

On December 15, 1997, the state filed a delinquency petition against D.E.B., charging him with felony discharge of a dangerous weapon in violation of Minn. Stat. § 609.66, subd. 1a(2) (1996). D.E.B. made his first appearance on the petition in Dakota County where he resides, denied the charges, and venue was transferred to Wright County for pretrial and trial.

On April 27, 1998, a proposed settlement agreement was placed on the record, and D.E.B. pleaded guilty to felony discharge of a dangerous weapon. The settlement agreement provided that the charge could be reduced to a misdemeanor if D.E.B. completed probation, that venue would be transferred to Dakota County for disposition, and that if the Dakota County court did not accept the settlement agreement, D.E.B. would retain the right to return to Wright County court for trial. At the disposition hearing on June 8, 1998, the Dakota County court refused to accept D.E.B.'s settlement agreement, stating that the predisposition report shows D.E.B. "never acknowledged any recklessness" on his part "or any responsibility for the death of the victim." D.E.B.'s attorney stated on the record that D.E.B. was withdrawing his plea. The matter was transferred back to Wright County for trial, which was set for June 30, 1998.

On June 29, 1998, J.D.C. gave Wright County police another description of the shooting incident, telling them that his first statement was not true and that D.E.B. had held a loaded gun to his head and threatened to kill him if he told the truth. Asserting that the shooting was not an accident, J.D.C. stated that D.E.B. intentionally shot the victim from a distance of a few feet. Based on this new information, the state filed a second petition against D.E.B., charging him with second-degree murder, second-degree assault, and first-degree witness tampering. Later that day, the police arrested D.E.B., and on June 30, 1998, the state dismissed the first petition.

On July 1, 1998, a detention hearing was held, and the state moved to certify D.E.B. as an adult for trial and filed a notice of intent to prosecute him as an adult. On July 10, 1998, D.E.B., who turned 18 on July 7, 1998, filed a motion to dismiss the murder charge, to enforce his settlement agreement, and to dismiss the state's motion to certify as untimely and unjustified. On July 24, 1998, the Wright County court granted the state's motion to amend the delinquency petition to include charges of second-degree murder, second-degree assault, and two counts of aggravated first-degree witness tampering. On August 12, 1998, the Wright County court denied D.E.B.'s motion to dismiss and to enforce his settlement agreement and granted the state's motion to certify D.E.B. for trial as an adult. This appeal followed.

 D E C I S I O N

 Whether Second Petition Was Barred

Double Jeopardy

The Wright County court concluded that because a sentencing or disposition of D.E.B. had not occurred, the second delinquency petition should not be dismissed on double-jeopardy grounds. D.E.B. argues this conclusion was erroneous, claiming that jeopardy had attached with the filing of the first delinquency petition.

Whether a district court correctly applied the law of double jeopardy is a question of law, which this court reviews de novo. Freeman v. 1215 East 21st St., 552 N.W.2d 275, 276 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996).

The United States Constitution and the Minnesota Constitution prohibit placing a person in jeopardy twice for the same crime. U.S. Const. amend. V; Minn. Const. art. 1, § 7. "[T]he risk to which the term jeopardy refers is that traditionally associated with `actions intended to authorize criminal punishment to vindicate public justice.'" Breed v. Jones, 421 U.S. 519, 529, 95 S. Ct. 1779, 1786 (1975) (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49, 63 S. Ct. 379, 386 (1943)). Double jeopardy applies to delinquency proceedings that are based on violations of criminal statutes. In re Welfare of E.R.D., 551 N.W.2d 238, 240 (Minn. App. 1996).

D.E.B. claims that jeopardy attached on the first petition because he was sworn in at Wright County court, answered questions under oath, and pleaded guilty, citing Breed, 421 U.S. at 531, 95 S. Ct. at 1787 (stating that jeopardy attaches in juvenile cases when court begins to hear evidence). But evidence presented at trial is not the same as the testimony at a factual inquiry for purposes of a plea, in that the latter cannot necessarily be used against the juvenile:

If the child enters a guilty plea which is not accepted or which is withdrawn, neither the settlement discussions, nor the settlement agreement, nor the plea shall be received in evidence against or in favor of the child in any subsequent proceeding against the child.

Minn. R. Juv. P. 9.04. Additionally, jeopardy does not necessarily attach when a defendant pleads guilty and an offer of proof is made. See, e.g., State v. McAllister, 399 N.W.2d 685, 687-88 (Minn. App. 1987) (vacating plea and stating that no jeopardy attached even though state made its offer of proof, which included witnesses' testimony). Based on the distinction between evidence being presented at trial and testimony at a factual inquiry for purposes of a plea, jeopardy did not attach to the first petition merely because D.E.B. pleaded guilty and responded to questions under oath.

D.E.B. also argues jeopardy attached on the first petition when the Wright County court accepted his admission. There is no clear rule in Minnesota, or elsewhere, as to when jeopardy attaches to a guilty plea. See, e.g., Bally v. Kemna, 65 F.3d 104, 108 (8th Cir. 1995) ("[W]e decline to fashion a rule concerning when jeopardy attaches to a guilty plea."). Some federal courts have concluded that jeopardy does not attach when a district court conditionally accepts a guilty plea. United States v. Cordova-Perez, 65 F.3d 1552, 1557 (9th Cir. 1995) (stating that because district court conditionally accepted guilty plea, jeopardy did not attach); United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990) (per curiam) ("In the case of a plea bargain, * * * jeopardy normally attaches when the court unconditionally accepts a guilty plea.") (citation omitted); see United States v. Sanchez, 609 F.2d 761, 762-63 (5th Cir. 1980) (stating jeopardy did not attach to plea when district court said it would accept plea "`temporarily'" and take plea agreement under advisement). Other courts have decided, without mentioning unconditional acceptance, that jeopardy attaches when the district court accepts the plea. See, e.g., United States v. Cruz, 709 F.2d 111, 114-15 (1st Cir. 1983) (criticizing view that jeopardy does not attach until court imposes sentence or enters judgment).

Here, the language of the settlement agreement rendered the plea conditional on Dakota County's approval. Specifically, if the Dakota County court did not approve of the settlement agreement, then D.E.B. "would retain his right to withdraw his admission and proceed to trial as though an admission had not occurred." We believe the better rule is that jeopardy did not attach when the Wright County court conditionally accepted D.E.B.'s admission.

Even if jeopardy attached when D.E.B. made his admission or when the court accepted his plea, the state argues that jeopardy did not remain attached, claiming that D.E.B. withdrew his admission. A juvenile "may, on the record or by written motion filed with the court, request to withdraw a plea of guilty," and the court "may allow" the juvenile to withdraw the plea in certain circumstances. Minn. R. Juv. P. 8.04, subd. 2; see Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989) (stating generally person who entered plea does not have absolute right to withdraw it), review denied (Minn. Oct. 13, 1989). The rules provide for the withdrawal of a plea after a court rejects the settlement agreement:

If the court rejects the settlement agreement, it shall advise the parties in open court and then ask the child to either affirm or withdraw the plea.

Minn. R. Juv. P. 9.03.

Here, after the Dakota County court rejected the settlement agreement, D.E.B.'s attorney said it was his understanding that the case "would be sent to Wright County for a Juvenile Court trial" and that he was "putting on the record that [D.E.B.] is withdrawing his admission in this matter, and it will be sent back to Wright County." D.E.B. reserved the right to withdraw his plea if the Dakota County court rejected the settlement agreement, and he exercised that right on the record in court. The court's order transferring the case to Wright County for trial indicated that it granted the motion.

Additionally, after the state filed the first delinquency petition against D.E.B., J.D.C. made a second statement to police that revealed new information about D.E.B.'s actions at the time of the shooting. Under those circumstances, a prosecutor should be allowed to amend or withdraw the delinquency petition and refile it. See 12 Robert Scott & John O. Sonsteng, Minnesota Practice rule 18.01 cmt (1997) (stating that if state learns new facts about child's involvement in offense, prosecutor could dismiss delinquency petition and refile it). This could only occur if jeopardy had not attached earlier.

Prohibition Against Serial Prosecution

D.E.B. argues that the statutory prohibition against serial prosecution prevented the state from filing the second delinquency petition. The statute provides that if a person's conduct constitutes more than one offense under Minnesota laws,

the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.

Minn. Stat. § 609.035, subd. 1 (Supp. 1997).

D.E.B. claims that the charges in the two petitions arise from the same conduct. See State v. Martinez, 530 N.W.2d 849, 851 (Minn. App. 1995) (stating this statute protects defendant from harassment by repeated prosecution for same conduct), review denied (Minn. June 14, 1995). To determine whether a person's actions arise from the same conduct for purposes of the statute, courts examine whether the offenses were motivated by one criminal objective, occurred at substantially the same time and place, arose from continuous and uninterrupted conduct, and manifested an indivisible state of mind. State v. O'Hagan, 474 N.W.2d 613, 622 (Minn. App. 1991), review denied (Minn. Sept. 25, 1991).

Here, while it is not clear whether D.E.B.'s alleged actions relating to the dangerous-weapon charge and the second-degree murder charge were motivated by one criminal objective, the two offenses are substantially similar in time and place and arise from continuous and uninterrupted conduct. Specifically, both actions allegedly occurred on October 17, 1997, when D.E.B. shot the victim while duck hunting with two other juveniles in Wright County.

But the two offenses do not manifest an indivisible state of mind. The dangerous-weapon charge is based on "intentionally discharg[ing] a firearm under circumstances that endanger the safety of another." Minn. Stat. § 609.66, subd. 1a(2). The second-degree murder charge requires proof that D.E.B. caused the death of the victim with intent to effect the death but lacked premeditation. See Minn. Stat. § 609.19, subd.1(1) (1996) (providing elements of second-degree intentional murder). Because of the distinction between the statutes regarding intent, there is not an indivisible state of mind. We conclude that the statutory prohibition against serial prosecution did not prohibit the state from filing the second delinquency petition.

Additionally, the underlying policy of the statute is to protect against double punishment

and at the same time to insure that punishment for a single incident of criminal behavior involving a multiplicity of violations is commensurate with the criminality of defendant's misconduct.

 O'Hagan, 474 N.W.2d at 622 (quotation omitted). Here, barring the state from filing and proceeding on the second delinquency petition against D.E.B. would not further the policy underlying the statutory prohibition against serial prosecution for two reasons. First, because D.E.B. was not punished or sentenced on the first petition, there is no risk of double punishment. Second, any punishment that D.E.B. might receive for the shooting incident would not be commensurate with the criminality of his alleged misconduct if disposition were based solely on the dangerous-weapon charge. Allowing the state to file and proceed on the second delinquency petition would further the policy of insuring that D.E.B.'s punishment, if any, is commensurate with his alleged misconduct relating to the shooting incident.

 Certification for Trial as an Adult

This court will not reverse an adult certification order unless the district court's "findings are clearly erroneous so as to constitute an abuse of discretion." In re Welfare of D.T.N., 508 N.W.2d 790, 794 (Minn. App. 1993) (citation omitted), review denied (Minn. Jan 14, 1994).

Even if the second delinquency petition was not barred, D.E.B. argues that the Wright County court erred in certifying him for trial as an adult on the second-degree murder charge. He claims that the time to move for certification had expired because the first delinquency petition was filed on December 15, 1997, and the state did not move for adult certification based on that petition. A prosecutor may initiate certification proceedings in a delinquency matter

upon motion * * * after a delinquency petition has been filed. The motion may be made at the first appearance of the child pursuant to Minnesota Rules of Juvenile Procedure 5 or 7; or within ten (10) days of the first appearance or before jeopardy attaches, whichever of the latter two occurs first.

Minn. R. Juv. P. 18.01.

Here, the state filed the second delinquency petition on June 29, 1998, and moved for adult certification of D.E.B. on July 1, 1998. While the state did not move for certification based on the first delinquency petition, it did move for adult certification within the statutory time period for the second petition. We conclude that the Wright County court did not abuse its discretion in considering the state's motion for adult certification of D.E.B. on the second delinquency petition.

Additionally, after the state filed the first delinquency petition, J.D.C.'s second statement provided evidence that D.E.B. committed second-degree murder, which was not charged in the first petition. Because of the new information, the state should be allowed to dismiss the delinquency petition and refile it with a motion to certify if that is appropriate. See 12 Scott & Sonsteng, supra, rule 18.01 cmt (stating that if new facts about juvenile's involvement in offense become known after delinquency petition is filed and those "facts show a new offense * * *, the new offense and motion should be allowed").

D.E.B. also claims that the Wright County court erred in granting the motion to certify him as an adult for the second-degree murder charge because the failure to certify him initially deprived him of his right to a speedy trial. The United States Constitution and the Minnesota Constitution guarantee a defendant the right to a speedy trial. U.S. Const. amend VI; Minn. Const. art. 1, § 6. Here, because D.E.B. was not in detention after the first petition was filed, his right to a speedy trial required that a trial begin within 60 days from the date that trial was demanded. See Minn. R. Juv. P. 13.02, subd. 2 (stating that if juvenile is not in detention, "trial shall be commenced within sixty (60) days from the date of a demand for a speedy trial"). D.E.B. did not demand a speedy trial after the first petition, and he still has not done so. We therefore conclude that the Wright County court did not err in finding there was no violation of D.E.B.'s right to a speedy trial.

 Enforcement of D.E.B.'s Settlement Agreement

The construction of a juvenile rule is a question of law, which this court reviews de novo. See In re Welfare of J.D.O., 504 N.W.2d 281, 283 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993).

The Wright County court concluded that its delinquency adjudication of D.E.B. was not a final determination because no disposition or sentence had been made or pronounced. D.E.B. argues that this conclusion was erroneous and that the Wright County court erred in failing to enforce his settlement agreement on the dangerous-weapon charge.

D.E.B. claims that his guilty plea was final when the Wright County court accepted it and adjudicated him delinquent. A court's "adjudication or continuance without adjudication shall occur at the same time and in the same court order as the disposition." Minn. R. Juv. P. 15.05, subd.1. Additionally, the rules provide that a "court shall not determine whether an offense will be adjudicated or continued without adjudication until the time of disposition." Minn. R. Juv. P. 21.03, subd. 1. Requiring adjudicative decisions to be made at the time of disposition

allows for the decision to be made by a judge other than the trial judge because the disposition is often in the county of the child's residence which may not be the venue of the offense.

12 Scott & Sonsteng, supra, rule 15.05 cmt (1997).

Here, disposition was to occur in Dakota County, which is D.E.B.'s county of residence. Because of that arrangement, the adjudication decision was not part of the trial process but rather should have been a disposition decision. See id. (explaining that when disposition occurs in child's county of residence "[t]he decision to adjudicate or withhold adjudication should then be a disposition type decision and is no longer a part of the trial process"). Nevertheless, the Wright County court adjudicated D.E.B. delinquent and transferred venue to Dakota County for disposition. Because disposition did not occur at the time of adjudication, the Wright County court did not have authority to adjudicate D.E.B., and the adjudication was invalid. The Wright County court erred in adjudicating D.E.B. delinquent in the first instance; it did not err in declining to enforce the settlement agreement.

Additionally, because D.E.B. effectively withdrew his plea, there was no reason for the Wright County court to enforce the settlement agreement.

  Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.