State of Minnesota, Appellant, vs. Eugene Moulzolf, Respondent.

may not be cited except as provided by

Minn. Stat. sec. 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

   C7-97-2143

State of Minnesota,

Appellant,

vs.

Eugene Moulzolf,

Respondent.

Filed May 5, 1998

Reversed and remanded for further proceedings

 Amundson, Judge

 Dissenting, Mansur, Judge*

McLeod County District Court

File No. T3-97-2046

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Michael K. Junge, McLeod County Attorney, Jody L. Winters, Assistant County Attorney, McLeod County Courthouse, 830 East Eleventh Street, Glencoe, MN 55336 (for appellant)

Paul W. Rogosheske, Thuet, Pugh & Rogosheske, Ltd., 833 Southview Boulevard, South St. Paul, MN 55075 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Mansur, Judge.

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

U N P U B L I S H E D O P I N I O N

 AMUNDSON, Judge

The state appeals the district court's stay of adjudication of a careless driving charge, claiming that there were no "special circumstances" to justify the decision. We reverse and remand for further proceedings.

 FACTS

On April 7, 1997, a complaint was filed charging Eugene Moulzolf with misdemeanor careless driving in violation of Minn. Stat. § 169.13, subd. 2 (1996). The charge arose out of a December 11, 1996, motor vehicle accident when Moulzolf, driving a truck, was pulling a trailer of feed. He moved over to the left to pass a car that was turning into a driveway. The front of Moulzolf's truck collided with the driver's side of the car, killing the driver.

Moulzolf pleaded guilty to the careless driving charge with the understanding that the judge would give him a stay of adjudication with probation. The state opposed the stay of adjudication because of a lack of special circumstances. The judge explained, on the record, that he would agree to the stay of adjudication because of the victim's family's desire to put the incident behind them. The judge ordered a presentence investigation.

A corrections officer conducted the presentence investigation and recommended a stay of adjudication or a stay of imposition of sentence. At the sentencing hearing, Moulzolf's attorney asked the court to consider that without a stay of adjudication, Moulzolf would face a five-year revocation of his driver's license, in which case he could not perform his hauling job. The district court reasoned that it could not do anything for the victim's family that would provide adequate relief. The court stated that while Moulzolf's conduct technically violated the careless driving statute, it was not the typical situation where someone acted purposefully. Therefore, the court stayed adjudication and sentenced Moulzolf to probation. The terms of probation require Moulzolf to cooperate with his probation officer, remain law-abiding, pay full restitution to the victim's family, and pay a $330 fine. The state again objected to the stay of adjudication. This appeal followed.

D E C I S I O N

Moulzolf argues that the stay of adjudication is not appealable, because the state can only appeal a sentence in a felony case. See Minn. R. Crim. P. 28.04, subd. 1(2) (prosecutor may appeal a sentence in a felony case). We have held that "the state may appeal, as `pretrial orders,' stays of adjudication in nonfelony cases." State v. Thoma, 569 N.W.2d 205, 208 (Minn. App. 1997), aff'd, 571 N.W.2d 773 (Minn. 1997). Because this appeal is not from a sentence, this order is appealable.

If "special circumstances" are present, a district court may stay adjudication over the objection of the prosecutor without violating the separation of powers doctrine. State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996). The stay of adjudication is to be used "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." State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996) (emphasis in original).

There are no "special circumstances" in this case to warrant a stay of adjudication. The only "circumstance" of Moulzolf's conviction would be the revocation of his driver's license. Loss of a drivers license is not a "special circumstance," but is a consequence that commonly accompanies a conviction for a driving offense resulting in death. See State v. Twiss, 570 N.W.2d 487, 487 (Minn. 1997) (possibility of losing a job is a common result after conviction of a serious offense, and therefore is not a special circumstance). Moulzolf's behavior met the requirements for careless driving, and he has pleaded guilty. The prosecutor did not abuse his discretion in charging Moulzolf, and Moulzolf should not be allowed to escape the effects of his conviction through a stay of adjudication.

  Reversed and remanded for further proceedings.

Mansur, Judge (dissenting)

I respectfully dissent. This is an appeal by the state of a misdeamnor plea to careless driving in violation of Minn. Stat. § 169.13, subd. 2 (1996). Over the state's objection, the district court stayed adjudication and placed Eugene Moulzoff on probation.

The tragic incident giving rise to this proceeding was a fatal accident that occurred on December 11, 1996. Moulzoff was heading north on state highway 15 in McCloud County, driving a three-fourth ton pickup truck and pulling a six-and-a-half ton trailer loaded with grain feed. The victim was in a 1995 Ford Escort and was parked on the shoulder at or near a mail box on the right, or east side of the highway. As Moulzoff approached, the victim appeared to turn left onto the highway as if to access a private driveway on the west side of the roadway.

According to Moulzoff, the victim hesitated in the middle of the highway and he turned to the left to go around her. But she resumed her travel, and the front of his truck struck the middle of the driver's side door. The victim was taken to Hutchinson Hospital where she expired due to the injuries she sustained. The state patrol ruled out any driver deficiencies on the part of Moulzoff and the victim. However, rather than treat this as a civil negligence case, the patrol opined that the contributing factor was an allegedly improper pass by Moulzoff.

At a pre-trial hearing, the next of kin were represented by counsel who advised all present that the family wanted to see Moulzoff plea to some criminal charge to avoid a long protracted trial. Through his attorney, Moulzoff offered to plead guilty to improper passing on the condition that there would be a "stay of adjudication." Over the objection of the state, the district court agreed to such a plea arrangement. The district court sentenced Moulzoff under a "stay of adjudication," citing among other factors, the need for healing within the community and the next of kin's desire to avoid a protracted trial. The state now appeals.

In State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996), the supreme court held that the district court has the "inherent judicial power" to stay adjudication if special circumstances exist warranting this unusual judicial measure. The court later clarified that a stay of adjudication should be used only "sparingly" and "for the purpose of avoiding 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, 541 (Minn. 1996).

It is unfortunate that Moulzoff argues that the loss of his driving privileges is a "special circumstance" sufficient to justify the district court's stay of adjudication. The loss of license is not a "special circumstance" under Krotzer, but rather is simply a consequence of conviction. As the majority correctly notes, the consequences that commonly follow a criminal conviction do not constitute "special circumstances" for the purposes of a stay of adjudication. See State v. Thoma, 569 N.W.2d 205, 209 (Minn. App.) (holding loss of driver's license is not "special circumstance" sufficient to stay adjudication, but is simply consequence of conviction), aff'd, 571 N.W.2d 773 (Minn. 1997). The district court's indication that it was willing to stay adjudication and thereby preserve Moulzoff's driver's license, however, may have strongly influenced Moulzoff to plead guilty even though he had a strong case for acquittal. If the court had indicated otherwise, it is likely that Moulzoff would not have pleaded guilty. Moulzoff was prepared to go to trial, and he even retained a reconstruction expert to assist his defense.

Here, contrary to the state's position, numerous "special circumstances" do exist to support the district court's stay of adjudication. These circumstances include the following:

Moulzoff was 66 years of age on the date of the accident;

Moulzoff's income, in addition to social security, is derived by his small business, loading and hauling grain feed;

on the date of the accident, Moulzoff was under no legal or other constraint that would have precluded him from operating his hauling business;

the highway was clear, but the shoulders were snow packed and icy;

the victim's vehicle was parked on the shoulder near a mail box when first seen by Moulzoff and he assumed that, based on custom in rural areas, the occupant was getting the mail;

the victim's vehicle was clearly visible to Moulzoff and he began to reduce his speed as he approached the vehicle;

the vehicle then began making a left hand turn appearing to access the driveway on the west side of the highway;

the vehicle stopped at a point where its front end would have been at or near the center line at which time Moulzoff assumed she had now seen him and would wait until he passed;

as he closed the distance, the victim's car proceeded across the highway, resulting in the collision that occurred;

the damage to Moulzoff's vehicle and the Escort support his version;

the accident reconstruction expert's opinion that Moulzoff had no more than 2.5 seconds of reaction time supports Moulzoff's version of the facts; and

the report of state patrol officer Jerry Buck, the primary trooper in charge at the scene, is void of any traffic violations, and the record does not identify state patrol officer Bruce Davey's involvement in the investigation, or the basis for his conclusion that an "improper pass" by Moulzoff was the cause of the accident.

Based on these facts, I would conclude that the charge of careless driving was an "abuse of discretion in the exercise of the charging function."

When one examines the facts of this tragic accident, it leads to the logical and common sense conclusion that this is a case of civil negligence rather than one of criminal conduct. Careless driving is generally defined as operating a motor vehicle without regard to safety of the operator and others. Minn. Stat. § 169.13, subd. 2. There is no evidence that Moulzoff acted in such a manner. This case presents a "clear abuse of discretion in the charging function" because the facts related speak for the fact that negligence and not criminal conduct was involved.

In a civil proceeding, given the facts as related by Moulzoff and supported by the physical facts of the accident and the reconstruction expert's opinion, a jury could reasonably find that: (1) Moulzoff was placed in an emergency situation through no fault of his own; (2) the victim was the person who could have avoided the accident by either remaining on the shoulder at the mail box or remaining in a stopped position on the highway and letting Moulzoff drive around her; (3) the victim's indecision, at the mail box and or at the center of the highway, caused the accident; and (4) that the fault could have been apportioned more against the victim than Moulzoff.

The problem with the state's appeal is that it does not address any specific factor as to why Moulzoff is not entitled to a stay of adjudication other than alluding to the lack of Krotzer factors. This problem is exacerbated because Krotzer and its progeny have not articulated what constitutes "special circumstances." Thus, the bar and the district courts have been given no guidance on what constitutes "special circumstances" sufficient to stay adjudication. Given this ambiguity, prosecutors, as matter of course, automatically appeal all stays of adjudication, and can do so successfully because, to date, no district court's stay of adjudication has survived on appeal except Krotzer; and, it is unlikely that any stay of adjudication will survive on appeal in the future. As a practical matter, the Krotzer stay of adjudication no longer exists.

The supreme court's reasoning State v. Olsen, 325 N.W.2d 13 (Minn. 1982), is instructive. In consolidated cases, the state challenged the district courts' sentences below the minimum terms mandated by statute that called for a minimum sentence of three years imprisonment for certain offenses committed with a firearm. Id. at 14. The statute did, under one provision, permit a sentence below the three year minimum if the prosecutor filed a motion for a reduced sentence. Id. The court cited with favor, the reasoning of one district court that stated

[the statute] does not bar the court, in extraordinary cases, from taking note of substantial mitigating factors upon its own motion. This holding does not suggest that the court may routinely disregard the minimum sentence law; rather to construe the law to prevent the prosecutor from having an unreviewable veto over the power of the court avoids the constitutional issues which would otherwise exist, and is a common sense construction.

 Id. at 17 (emphasis added). The court continued, noting that the prosecutor is not only a member of the executive, but is an advocate as well and that it would be too much to expect to look to the prosecutor for a fair assessment of whether mitigating factors are present because the prosecutor's attention is appropriately focused on achieving convictions. Id. at 19. The supreme court held that under the statutory provision in question, the district courts have the authority to sentence "without regard to the mandatory minimums." Id.

The court's decision in Olsen suggests that courts have the power to depart from even statutorily mandated sentences provided extraordinary circumstances are present. In many instances, courts are now trying to by-pass Krotzer by using Olsen. However, the appeals are still brought by the state and decided by the appellate courts under a Krotzer analysis. The supreme court needs to revisit the issue of whether a stay of adjudication is viable and workable tool for the district courts when deciding the cases before them. Under the current scheme, the only recognized "special circumstances" are those that were found in Krotzer. Following Foss, a district court's stay of adjudication will almost always be reversed on appeal and prosecutors know this fact.

I would affirm the district court's stay of adjudication because numerous "special circumstances" are present in this case to support the district court's decision.