(dissenting).
I respectfully dissent.
The first issue, does the state have the right of appeal from sentencing dispositions that are not felonies is dispositive. The state can appeal a sentence only in a felony case. Minn. R.Crim. P. 28.04, subd. 1(2). These five cases before us are not felonies and, therefore, the sentences are not appealable.
The state makes the astonishing and, to me, meritless argument that stays of adjudication are “pretrial orders”. I disagree. We have four levels of sentencing in Minnesota ranging from the most severe, incarceration in a Minnesota state prison, down to the least severe, a stay of adjudication. In descending order, the levels are incarceration, stay of execution (which is coupled with terms of probation that can include fines and local jail time), stay of imposition (which is coupled with terms of probation that can include fines and local jail time), and stay of adjudication (which is coupled with terms of probation that can include fines and local jail time).
It is not for this court to de facto overrule the Minnesota Supreme Court case of State v. Krotzer, 548 N.W.2d 252 (Minn.1996). In Krotzer, the supreme court first dismissed the state’s claim that somehow the judiciary was “infringing” on the power of prosecutors to select charges, and stated in pertinent part:
However, the prosecutor’s power to file charges and prosecute an individual was not infringed upon here. As Krotzer states, the Carver County prosecutor investigated the allegations against Krotzer, filed criminal charges, obtained a guilty plea, and recommended a disposition and sentence to the court. The trial court then postponed acceptance of the plea and placed Krotzer on probation, but this did not affect the prosecutor’s carefully defined role. The final disposition of a criminal case is ultimately a matter for the presiding judge. As we stated in Olson, once the legislature has defined the range of punishments for a particular offense, it cannot ‘condition the imposition of the sen-*210tenee by the court upon the prior approval of the prosecutor.’
Krotzer, 548 N.W.2d at 254 (emphasis added) (citations omitted).
The supreme court used the term “final disposition of a criminal case”, not “pretrial order” to define at what stage the Krotzer case was at when the issue of Krotzer’s stay of adjudication arose. There is nothing even remotely connected to “pretrial procedure” when a trial judge listens to the facts of the case, and then makes a determination that the defendant “did it” (legally called a determination of guilt), and then imposes on the defendant various sanctions, including imprisonment in a county jail. The imposition of probation, including restitution and incarceration in a county jail are part of a sentence, not part of a pretrial omnibus hearing where evidentiary issues and other related matters are decided before the question of guilt or innocence and then sentencing even come up.
Anyone familiar with the Minnesota Rules of Criminal Procedure, which were changed substantially approximately 20 years ago and who is familiar with the procedure for handling criminal cases, is aware that the origins of the omnibus hearing were to combine the former probable cause hearing with the Rasmussen hearing. See 7 Henry W. McCarr, Minnesota Practice § 1.5 (1990) (chronicling history of Minnesota Rules of Civil Procedure and noting probable cause hearing and Rasmussen hearings were combined into omnibus hearing); See also State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553-55, 141 N.W.2d 3, 13-14 (1965) (setting forth procedures to be followed in resolving pretrial suppression issues). It is from this pretrial hearing that the state has a limited right to appeal from pretrial orders of the trial court, excepting a dismissal for lack of probable cause on an order dismissing a complaint pursuant to Minn.Stat. § 631.21. See Minn. R.Crim. P. 28.04, subd. 1(1).
I reject out-of-hand the majority’s analysis that the imposition of criminal sanctions, including jail time, is not a type of sentence merely because the judgment of conviction is not formalized by specific entry. We simply do not put Minnesota citizens in county jails “pretrial.” It can only be done after a full and fair hearing in which the trial court makes a determination that there is enough evidence on the record to make a determination by proof beyond a reasonable doubt that the defendant is guilty. Nothing in Krotzer indicates that Krotzer’s jail time on the serious felony of third-degree criminal sexual conduct was made without the trial judge having to listen to the evidence on the record, and then make a determination that there was enough evidence to find that Krot-zer had committed the crime charged, before moving on to the sentencing phase.
The Krotzer court held
it was not improper for the district court in this case to follow the sentencing options permitted by section 152.18, and to order Krotzer to serve 60 days in jail as a condition of his 60 months on probation.
Krotzer, 548 N.W.2d at 256 (emphasis added).
The operative word in the above cite is “sentencing options.” In spite of the unambiguous words and phrases in Krotzer, the state here makes the incredible argument that the stay of adjudication in the cases at issue are “pretrial appeals” because they “occurred before trial” and “had a critical impact on the outcome of the ease.” From a practical standpoint, the vast majority of all criminal issues decided in this state are decided “before trial.” That is because only a tiny percentage of criminal defendants ever go through a full criminal trial. Straight up guilty pleas and negotiated guilty pleas are the majority of cases. Pleas of guilty are not “pretrial” simply because “there will not be a trial.”
Commonly, at arraignments on misdemeanors and petty misdemeanors, and sometimes during or after an omnibus hearing on a felony, a defendant and his attorney might complete a negotiated plea with the prosecutor and then offer it to the trial court. Yet the moment the discussion changes from presenting evidence on either side of a suppression motion to discussions that result in a guilty plea, the focus has moved past the state’s limited pretrial appeal rights spelled out in 28.04.
*211As to “critical impact,” many evidentiary-rulings during a trial have a “critical impact” on the prosecutor’s case. That does not mean they are appealable as a matter of right under 28.04. For instance, during a trial, interlocutory appeals even on critical issues can be taken only on a totally discretionary basis, not as a matter of right. This distinguishes appeals during trial from the state’s pretrial right of appeal under 28.04. Yet, both could be on issues deemed critical by the prosecutor; thus, obviously the buzz word “critical impact” is not the test, and I reject the state’s argument to the contrary.
The appeal of right under 28.04 is limited to the evidentiary and other matters that take place surrounding the omnibus hearing. Without that limitation, the appellate courts would be inundated with the prosecution wanting to appeal as a matter of right every single adverse ruling, pretrial, midtrial, and posttrial that they did not like.
After a guilty verdict by a jury or a finding of guilty by a judge, then you move on to the sentencing phase. Then the state has the right of appeal in felony cases, but not in misdemeanors and petty misdemeanors as we have here.
If we cannot be logical, then we can at least be honest. If this court is going to assume that the Minnesota Supreme Court has carved out a de facto exception to the rule prohibiting sentencing appeals in nonfel-ony cases, then let us say that. In State v. Cash, 558 N.W.2d 735 (Minn.1997), this court and the supreme court reviewed a stay of adjudication in a nonfelony case. The case did not address the appealability of nonfelony sentences. Thus, neither State v. Cash nor State v. Foss, 556 N.W.2d 540 (Minn.1996), represent a definitive legal ruling stating that stays of adjudication in less than felony cases are a recognized exception to the no-nappealability rules governing less than felony sentences. The accepted rule is that pri- or appeals decided on their merits that do not address the issue of appellate jurisdiction are not precedential authority on the jurisdictional issue. Chapman v. Dorsey, 230 Minn. 279, 288, 41 N.W.2d 438, 443 (1950); see also Winberg v. University of Minnesota, 499 N.W.2d 799, 802 (Minn.1993) (rejecting Court of Appeal’s reliance on particular case where issue being decided was not raised in case being relied on).
If our court wants to make that assumption that the nonappealability of less than felony sentences has been changed by case fiat, then let us be honest and state that assumption. Attempting to get around the clear rule against appealing nonfelony sentences by calling them “pretrial,” represents, to me, a loss of credibility.
Until Minn. R.Crim. P. 28.04 is specifically amended by a statute or definitive case making a clear exception for nonfelony stays of adjudication, I would dismiss the state’s appeal in these cases outright. Until that specific exception is spelled out, we are bound to interpret penal statutes strictly in favor of the defendant and against the state. See State v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (holding that strict construction is applied in interpreting criminal statutes with all reasonable doubts resolved in favor of accused).
On these combined cases before us, the state is appealing five sentencing dispositions on crimes charged that are less than felonies. These are all nonappealable issue. I dissent and would dismiss the state’s appeal outright.