(dissenting)
Our decision in this and other similar cases serves the unacceptable end of inserting a prosecutorial veto into the judicial function of making a final disposition in a criminal case. See State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996) (restating historic principal that final disposition of a criminal case — in that case through a stay of adjudication — is ultimately a matter for the presiding judge, to be determined whether or not approved by the prosecutor); see also State v. Scaife, 608 N.W.2d 163, 165 (Minn.App.2000) (Crippen, J., dissenting) (“The conditional stay of criminal proceedings is a historic element of sound *48judicial discretion, * * *.”) Making the decision even less tenable, as respondent asserts, we now permit this interference with the trial court’s sentencing role in the face of a statute that expressly contemplates the form of trial court discretion that has been exercised.
1. Stay of adjudication
Initially, I disagree with the majority’s analysis of the trial court’s exercise of discretion in refusing to sentence, which appellant analogizes to a stay of adjudication. It becomes increasingly evident to me that this court is erroneously escaping its burden to evaluate the “special circumstances” that permit a trial court to avoid an unnecessary criminal record for a defendant.
The trial court should only adjudicate and sentence in the absence of the prosecution’s clear abuse of discretion in the exercise of its “charging function.” State v. Foss, 556 N.W.2d 540, 541 (Minn.1996). The prosecutorial discretion at issue does not involve its assessment of whether evidence shows the occurrence of an offense. Rather, decisions in these cases require that we determine whether the prosecutor acted unjustly, because of special circumstances, by insisting that the defendant suffer the consequences of a criminal record. Krotzer, 548 N.W.2d at 254 (affirming the trial court’s determination, explaining its “final disposition” in the case that “justice would not be served by giving Krotzer a criminal record”).
I would defer to the trial court’s judgment in this case that there are special circumstances, like those in Krotzer, that make it just to permit the disposition of the case without adding the wholly unnecessary consequences associated with a felony record. These circumstances principally include the unusual contrast between
the respondent’s level of culpability and the degree of wrongdoing normally associated with a felony offense. In addition, the trial court properly found it evident that respondent was not likely to commit further crime and that his freedoms could be adequately restricted without a felony disposition. These circumstances, like those in Krotzer, permitted the trial court to reach its announced “strongly” held conviction that the disposition served the interests of justice. See id. at 254 (affirming trial court that “strongly disagreed” with the prosecution’s insistence on burdening the defendant with a criminal record).
2. Withholding of sentence
This case has an added dimension. Although the trial court withheld sentencing on the burglary charge, it made a final determination on another charge for conduct that arose in the same behavioral incident.1 As a result, the court’s decision is expressly sanctioned by Minn.Stat. § 609.035, subd. 1 (1998 & Supp.1999). This statute permits prosecution of several accusations of conduct arising from the same incident, but the defendant “may be punished for only one of the offenses.” Id. It is the court, of course, and not the prosecutor, who determines the punishment in the case, electing on which charge a sentence is determined. Without limitation, the legislature has declared the judicial role to designate the offense for which the defendant will be punished. State v. Alt, 529 N.W.2d 727, 731 (Minn.App.1995), rev. denied (Jul. 20, 1995) (observing that the court is to determine whether sentencing occur for the more serious or the less serious offense).
An exception to this statute applies to the circumstances of this case but leads directly to another circumstance for exercise of trial court discretion. See Minn. *49Stat. § 609.035, subd. 1 (providing various exceptions, including convictions governed by Minn.Stat. § 609.585 (1998) (burglary and “any other crime committed while in the building entered”)). In the situation governed by this exception and others, it is no longer the case that the defendant may be punished for only one of the offenses. Without further direction, the legislature leaves to others the, determination of whether or not the convicted defendant will be punished for more than one act arising in the course of the burglary. This is a punishment decision; it is a trial court decision toward which the appellate courts will defer in the absence of a clear abuse of discretion. See State v. Givens, 544 N.W.2d 774, 776 (Minn.1996) (stating deference given to guideline departures). We do not have before us an assertion that the trial court abused its discretion in electing the crime for which respondent was to be punished.
Appellant’s arguments also suggest that Minn.Stat. § 609.095(b) (1998) is important in determining whether the trial court could withhold a burglary sentence. This section, as quoted in the majority opinion, requires that the court “adjudicate” a defendant’s “guilt” after he pleads guilty or is found guilty. Id. It is the evident conclusion of the majority, which I share, that there is no cause to decide this or similar cases under section 609.095. It is unclear at best whether this statute bears on the circumstances of this case,2 and it remains to be determined whether the statute is in accord with the constitutional mandate of separation of the departments of state government.
Because it is the law of the case, I elect against discussion of the state’s right to initiate this appeal.
Because I would affirm the trial court’s disposition for the reasons stated in this opinion, I respectfully dissent.
. The trial court made a statement to the defendant that may suggest that the court entertains the notion of imposing punishment for the felony offense in the event of revocation proceedings. Whatever may unfold in the future, it is sufficient for our present analysis of the case to observe that the court has definitely imposed punishment at this time on the gross misdemeanor occurrence and has not determined a sentence on the burglary charge.
. For purposes of determining the defendant’s right to appeal, a rule of criminal procedure provides that there is no final judgment until there is a "judgment of conviction” and "sentence is imposed or the imposition of sentence is stayed.” Minn.R.Crim.P. 28.02, subd. 2(1). Section 609.095(b) does not call for a final judgment as needed for the right of appeal but declares instead the requirement that there be a judgment determining the conviction-the existence or non-existence of which has not been stated as a continuing issue in this case. Minn.Stat. § 609.095(b) (1998).