State of Minnesota, Appellant, vs. Amir Sahbegovic, Respondent.

State of Minnesota, Appellant, vs. Amir Sahbegovic, Respondent. A06-2094, Court of Appeals Unpublished, April 17, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2094

 

 

State of Minnesota,

Appellant,

 

vs.

 

Amir Sahbegovic,

Respondent.

 

 

Filed April 17, 2007

Reversed and remanded
Klaphake, Judge

 

Hennepin County District Court

File No. 06070941

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Martin J. Costello, Katrina E. Joseph, Tori K. Stewart, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN  55102 (for appellant)

 

Amy B. Norberg, James Whelpley & Associates, Chartered, 2151 North Hamline Avenue, Suite 202, Roseville, MN  55113 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The State of Minnesota challenges the district court's stay of adjudication of guilt and imposition of a probationary period following respondent Amir Sahbegovic's guilty plea to misdemeanor violation of an order for protection under Minn. Stat. § 518B.01, subd. 14 (2006).  Because the district court ordered the stay of adjudication solely to relieve respondent of the collateral consequences of his conviction, namely, the effect that the conviction would have on his immigration status and on his ability to support his wife and child, we reverse and remand.  

D E C I S I O N

            A district court has the inherent power to stay adjudication of guilt, even over the state's objection, when "special circumstances" exist and a stay of adjudication is "in the furtherance of justice."  State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996) (affirming stay of adjudication on charge of third-degree criminal sexual conduct when conviction would have required 19-year-old offender, who had consensual sexual relations with teenage girlfriend, to register as predatory sex offender).  Soon after release of Krotzer, the supreme court further defined "special circumstances" by limiting them to cases where the district court has granted the stay of adjudication "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 deleted).  In State v. Lee, 706 N.W.2d 491, 496 (Minn. 2005), the supreme court reaffirmed the holding of Foss and stated that Foss allows a stay of adjudication only when the prosecutor has "clearly" abused the charging function and that Foss may not be read "to permit[] a stay of adjudication whenever there are either special circumstances or an abuse of the charging function."  Notably, this court has specifically rejected as a basis for a stay of adjudication the district court's "desire to relieve an offender of the collateral consequences of [a] conviction."  State v. Thoma, 569 N.W.2d 205, 209 (Minn. App. 1997), aff'd by 571 N.W.2d 773 (Minn. 1997).

            Here, while an order for protection was in effect, respondent admittedly approached his child on the street, removed her from a vehicle, and began to walk away with her.  This act constituted a violation of an order for protection under Minn. Stat. § 518B.01, subd. 14(b).   The district court stated the following reasons for ordering the stay of adjudication to the offense:

            Because of the immigration issues, the Court feels that a plea to the charge might endanger that for him and also endanger[] the wife's means of support, as well as the child's means of support.

 

            A stay of adjudication keeps [respondent] on probation . . . for two years on the condition that he remain law abiding, so the Court believes that the interests of all the parties are fully protected by the disposition in this case.                         

 

While the district court's bases for staying adjudication are pragmatic and laudable for humanitarian reasons, because the record shows no abuse of the state's charging function, we must reverse and remand.

            Reversed and remanded. 

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