This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0079
State of Minnesota,
Appellant,
vs.
David Israel Buenano,
Respondent.
Filed January 30, 2017
Reversed
Hooten, Judge
Hennepin County District Court
File No. 27-CR-15-10129
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)
Mary F. Moriarty, Hennepin County Public Defender, Peter W. Gorman, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)
Considered and decided by Hooten, Presiding Judge; Peterson, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this pretrial appeal by the state, the state argues that the district court’s dismissal
of the state’s refiled complaint must be reversed because its decision was based on an
opinion of this court that was subsequently reversed by the Minnesota Supreme Court. We
reverse.
FACTS
On November 5, 2014, respondent David Israel Buenano was charged by complaint
with second-degree sale of a controlled substance and third-degree possession of a
controlled substance. At a hearing on November 10, Buenano waived his right to a speedy
trial, and, on November 18, the district court set a trial date of April 6, 2015. In February
2015, upon Buenano’s motion, the district court scheduled a Rasmussen hearing1 for March
31, 2015. On March 25, 2015, the prosecutor notified the district court and defense counsel
by email that she had recently learned that a key witness was unavailable for the Rasmussen
hearing. The prosecutor requested a continuance of the Rasmussen hearing and the trial.
On March 30, the prosecutor stated in an email to the district court and defense counsel
that “[i]f the [c]ourt is not willing to grant the continuance, the state would consider
dismissing and refiling the complaint.”
On March 31, the district court denied the state’s request for a continuance. That
same day, the state filed a motion to dismiss pursuant to Minn. R. Crim. P. 30.01,2 stating
that the reason for the dismissal was that “[a]n officer was unavailable for the Rasmussen
1
In State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965), the Minnesota
Supreme Court outlined the procedures for notice and pretrial hearing to be followed when
the state seeks to introduce evidence obtained through search and seizure or confessions at
trial. Such a pretrial hearing is referred to as a Rasmussen hearing.
2
Minn. R. Crim. P. 30.01 provides that “[t]he prosecutor may dismiss a complaint or tab
charge without the court’s approval, and may dismiss an indictment with the court’s
approval.”
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hearing due [to] a pre-planned vacation and the court denied the [s]tate’s request for a
continuance.” The state refiled the charges on April 17, 2015. Buenano filed a motion to
dismiss pursuant to Minn. R. Crim. P. 30.02, which provides that “the [district] court may
dismiss the complaint, indictment, or tab charge if the prosecutor has unnecessarily delayed
bringing the defendant to trial.”
On July 13, 2015, this court issued its decision in State v. Olson, 867 N.W.2d 258
(Minn. App. 2015). In Olson, this court held that “[a] prosecutor abuses the state’s
voluntary dismissal authority under [Minn. R. Crim. P. 30.01] and engages in an act of bad
faith by dismissing and refiling a criminal complaint to circumvent the district court’s
refusal to continue the criminal trial.” 867 N.W.2d at 259. In response to Buenano’s May
14, 2015 motion to dismiss, the district court noted that Olson “would, it appear[s], dictate
the dismissal” of the refiled complaint, but stated that the decision was not yet binding on
the district court. The district court denied Buenano’s motion to dismiss, concluding that
the state did not act in bad faith in dismissing the original complaint under rule 30.01 and
then refiling. The district court noted that both parties believed that the unavailable witness
was necessary, there was no showing that the prosecutor knew of the conflict and failed to
act to correct it, the state was willing to rework its schedule to accommodate a slightly
delayed Rasmussen hearing, and Buenano did not initially oppose a continuance of the trial
date. After the district court’s order, the state petitioned for further review in Olson, and
the Minnesota Supreme Court granted the petition on September 29, 2015.
On November 2, 2015, Buenano moved for reconsideration of the district court’s
decision allowing the state to recharge the case and its denial of Buenano’s motion to
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dismiss, relying on this court’s decision in Olson. The district court determined at that time
that it was bound by Olson and that, “[b]ecause the [s]tate dismissed the original case only
to circumvent the [c]ourt’s scheduling decision, it acted in bad faith.” Therefore, the
district court dismissed the refiled complaint with prejudice.
The state appealed the dismissal of the refiled complaint, and this court granted the
state’s motion to stay the appeal pending the supreme court’s decision in Olson. In an
opinion filed August 24, 2016, the supreme court reversed this court’s decision in Olson.
State v. Olson, 884 N.W.2d 395 (Minn. 2016). The stay of this appeal was dissolved, and
the appeal was reinstated.
DECISION
The state argues that the district court abused its discretion by dismissing the
prosecution’s refiled complaint. We agree.
The state’s right to appeal in a criminal matter is limited. State v. Rourke, 773
N.W.2d 913, 923 (Minn. 2009). When the state appeals a pretrial order of the district court,
the state must show that the district court’s error will have a critical impact on its ability to
prosecute the case. State v. Zais, 805 N.W.2d 32, 35–36 (Minn. 2011). “Dismissal of a
complaint satisfies the critical impact requirement.” State v. Trei, 624 N.W.2d 595, 597
(Minn. App. 2001), review dismissed (Minn. June 22, 2001). Because the district court
dismissed the refiled complaint, the district court’s order had a critical impact on the state’s
ability to prosecute Buenano.
We review a district court’s decision to dismiss a complaint under rule 30.02 for an
abuse of discretion. Olson, 884 N.W.2d at 397.
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The supreme court in Olson rejected this court’s adoption of a “per se rule” that a
district court must dismiss charges after the state dismissed the case under rule 30.01 after
the denial of a continuance. Id. at 399. The supreme court reasoned that there is nothing
in the plain language of rule 30.01 or in caselaw supporting the imposition of a good faith
requirement for dismissals of complaints and tab charges. Id.
The district court’s decision to dismiss the refiled complaint was based on its
determination that it was bound by this court’s opinion in Olson. The district court’s
reliance on this court’s Olson opinion in dismissing the refiled complaint is particularly
clear because the district court initially denied the motion to dismiss, reasoning that this
court’s decision in Olson was not yet final. However, the district court later determined
that Olson was binding authority that necessitated dismissal of the refiled complaint.
Because the district court dismissed the complaint based on this court’s decision in Olson,
which was subsequently reversed by the supreme court, the district court abused its
discretion in granting Buenano’s motion to dismiss the refiled complaint.
Buenano argues that “at least part of the district court’s decision to dismiss the
refiled complaint rested upon its dismay” regarding some of the prosecutor’s actions,
pointing to comments made in the July 31, 2015 order denying Buenano’s motion to
dismiss and in the November 25, 2015 order dismissing the refiled complaint. Indeed, the
district court made comments in both orders indicating its dissatisfaction with the state’s
failure to provide certain information regarding when the subpoena was served on the
unavailable witness. However, in the initial order, while the district court expressed its
dissatisfaction with the prosecutor’s actions, it nonetheless denied Buenano’s motion to
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dismiss under rule 30.02, noting that there was no showing that the prosecutor knew of the
conflict but failed to correct it and that the state was willing to rework its schedule to
accommodate the conflict. The district court concluded that there was “no justification”
for dismissal under rule 30.02 because the state had not acted in bad faith. But, in its
November 25 order granting the motion to dismiss, the district court explained that the
reason it changed its decision and subsequently granted the motion to dismiss was its
determination that it was bound by this court’s decision in Olson. Under these
circumstances, it is clear that the district court’s decision to dismiss the refiled complaint
was based solely on its reliance on this court’s Olson opinion, prior to its reversal by the
supreme court.
Buenano argues that the supreme court held that dismissal was proper under these
circumstances in State v. Kasper, 411 N.W.2d 182 (Minn. 1987). But, the supreme court
in Olson made clear that it is not necessarily an abuse of discretion for a district court to
deny a defendant’s motion to dismiss when the state dismissed the initial complaint and
refiled the complaint after denial of a continuance. 884 N.W.2d at 399–400 (analyzing
whether district court abused its discretion in denying defendant’s motion to dismiss).
Moreover, Kasper involved the denial of a defendant’s speedy trial rights through “legal
maneuvering” because the state dismissed and refiled the charges after the denial of a
continuance. 411 N.W.2d at 183, 185. Here, Buenano waived his right to a speedy trial in
November 2014 and did not make a demand for a speedy trial until two months after the
state refiled the complaint.
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In conclusion, because the district court’s decision to dismiss the refiled complaint
was based on its reliance on this court’s opinion in Olson, which was subsequently reversed
by the supreme court, we conclude that the district court abused its discretion in dismissing
the amended complaint.
Reversed.
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