(dissenting).
I respectfully dissent. This case is a “hard case” in which, consistent with the old adage, this court is making “bad law.”
'What has come to be popularly known as “statutory rape” has been considered a crime ever since the 13th century.1 The crime is based on recognition of the fact that young girls and boys lack both the judgment and the understanding of the possible long-term consequences of their actions so that they are incapable of giving meaningful consent to sexual intercourse. That the erosion of the deep shame and embarrassment formerly associated with out-of-wedlock pregnancies of young girls may have resulted in somewhat sporadic enforcement does not make the crime any less a crime.2
Nevertheless, I have no quarrel with the impulse on the majority’s part to try to do something to prevent the defendant from being labeled a “felon” and a “predatory offender.” Indeed, I will go so far as to say that I cannot understand, on this record, why the prosecutor did not decide to “divert” this case or why he refused to agree to diversion when it became clear that that was what the trial court wanted. However, while it may be that as a matter of policy the trial court in appropriate cases ought to have the broad power to order diversion over the prosecutor’s objection, under the separation-of-powers doctrine, as I understand it, the trial court does not have power to order diversion over the prosecutor’s objection. Neither, for that matter, is there any statutory authority supporting the trial court’s action. Invoking a court’s “inherent judicial authority” to obtain a result that this court likes in this case is tantamount to saying that a'court can do anything it wants to do. This court is not a law unto itself and if it expects the other branches of government to defer, when appropriate, to judicial power, it in turn should defer, when appropriate, to executive power or legislative power.
At common law the executive branch had the exclusive power to initiate and discontinue a criminal prosecution. As a general proposition, that is also the case under the separation-of-powers doctrine.3 The Minne*257sota Constitution, like the United States Constitution, divides the powers of government among the legislative, executive and judicial branches. Minn. Const, art. Ill, § 1. In the criminal context, the legislature possesses the power to define the conduct that constitutes a criminal offense and to fix the limits of punishment for such conduct. State v. Olson, 325 N.W.2d 13, 17-18 (Minn.1982). While the imposition of the sentence within the limits prescribed by the legislature is a purely judicial function, id,., the court has been given some authority by statute, section 631.21, to dismiss prosecutions “in furtherance of justice” either on its own motion or upon motion of the prosecutor. The trial court must set forth its reasons in the order, and the prosecutor’s recommendations must be stated in writing and placed in the court’s public file for the case. Generally, however, the trial court may not dismiss prosecutions over the objection of the prosecutor if the prosecutor has sufficient evidence to go forward.
The majority relies in large measure on dictum, found in Olson, 325 N.W.2d at 18-19. The issue in Olson was whether the legislature could condition the trial court’s decision to sentence a convicted defendant without regard to a statutory mandatory minimum term on approval by the prosecution. In concluding that the legislature could not so condition the trial court’s sentencing decision, this court relied in part upon some California decisions, one of which, People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (1974), arose out of a statutory pretrial diversion program for first time drug offenders found suitable for treatment and rehabilitation. Id. at 407 (citing Cal. Pen.Code §§ 1000-1000.4 (West 1972)). The California statute provides that when a defendant is charged with one of six specified drug offenses, the prosecutor is required to determine if the defendant also meets certain minimum standards of eligibility. If it appears the defendant is eligible for diversion and if the defendant consents and waives his right to a speedy trial, the matter is assigned to the probation department for development of the facts bearing on the defendant’s suitability for diversion. The probation department’s findings and recommendations are submitted to the court. Then the statute mandates that the court hold a hearing to determine whether “the defendant should be diverted and referred for education, treatment, or rehabilitation.” Id. at 408. If the defendant is convicted of any offense during the period of diversion, criminal proceedings in the diverted case are resumed; but if the defendant successfully completes the diversion program, the charges are dismissed. Id. at 407-OS.
The problem with the California statute was that after requiring a formal diversion hearing and directing the trial court to weigh the materiality, relevance, credibility and persuasiveness of the evidence and to decide whether the defendant would benefit from diversion into a program of treatment, education, and rehabilitation, the statute subjected the court’s decision to prosecutorial veto. The California Supreme Court ruled that once the case reached the hearing mandated by Cal. Pen.Code § 1000.2, the case was “before the court” for disposition and that a court hearing need not be a full-fledged criminal trial in order to constitute an exercise of the judicial power. Id. at 410. The statute vested in the court — not the prosecutor — the power to find the operative facts and to draw legal conclusions and to decide if the defen*258dant should be diverted into the statutory program.
The California court’s careful description of the statutory procedure and its stated view of diversion as a specialized form of probation makes it quite clear it looked on that exercise of the prosecutorial veto after hearing, argument, and decision by the court as interference with the court’s power and duty to sentence and, hence, a violation of the separation of powers.
State v. Olson, 325 N.W.2d 13 (Minn.1982), on the other hand, arose out of the imposition of sentence following conviction of a crime committed with a firearm. The trial court stayed execution of a prison term of 54 months and placed the defendant on probation despite a statute requiring a minimum term of 3 years’ imprisonment. Minn.Stat. § 609.11 (Supp.1981). Subdivision 8 of the statute set out a procedure for avoiding the mandatory minimum term but provided that the procedure be initiated by the prosecutor. Citing a Louisiana decision that giving the prosecutor a discretionary role in sentencing violated the constitutional separation of powers, State v. LeCompte, 406 So.2d 1300, 1311 (La.1981), the Olson court declared that subdivision 8 was not intended to enlarge the powers of the prosecutor, but rather to provide a safety valve in cases where a minimum sentence was not warranted by the circumstances. 325 N.W.2d at 18-19.
But although dictum in Olson may provide some limited support for the majority’s position, it seems to me there is a significant difference between the separation-of-powers issue posed by a statutory framework as in Olson and San Mateo County and the separation-of-powers issue posed by a judicially created ad hoc pretrial sentencing as in the present case. In Olson the court ruled that requiring prosecutorial approval before the court could exercise its power to make a post-conviction sentencing decision which the legislature had vested in the judiciary violated the separation-of-powers doctrine, and similarly San Mateo County held that giving a prosecutor power to veto diversion after a hearing and judicial determination that the defendant meets the statutory criteria for diversion violated constitutional principles of separation of powers. In the present case, on the other hand, this court declares that a court possesses inherent judicial power to usurp the county attorney’s discretion by staying prosecution and creating a diversion for which there is neither statutory authority nor precedent.
Moreover, the rationale underlying our decision in State v. Carriere, 290 N.W.2d 618 (Minn.1980), strongly suggests that the prosecutor has the power under the separation-of-powers doctrine to veto any stay of prosecution and the diversion of the defendant into a treatment program. In Carriere the issue was whether accepting a straight guilty plea by a defendant charged with first-degree murder to the lesser offense of second-degree murder over the prosecutor’s objection violates the separation-of-powers doctrine. The defendant there based his argument on Minn. R.Crim. P. 15.07, giving the trial court authority to accept a defendant’s guilty plea to a lesser included offense or an offense of lesser degree without the prosecutor’s consent. This court, in order to “eliminate the danger of judicial intrusion into an area reserved for prosecutorial discretion,” held that notwithstanding the rule, the trial court generally may not accept a guilty plea to a lesser included offense over the objection of the prosecutor if the prosecutor has sufficient evidence to go forward on the charged offense. Id. at 620. We said, in relevant part:
The district court is part of the judicial department. The prosecutor is an executive official. The prosecutor argues that if the trial court were to accept defendant’s plea the trial court would, in effect, be ordering the prosecutor not to prosecute the first-degree murder charge against defendant. This, the prosecutor contends, would constitute an encroachment by the judiciary upon the executive function of charging offenses.
Defendant argues that in this case, where the charge is by grand jury indictment, the trial court’s acceptance of a plea of guilty to a lesser included offense would raise no issue with respect to the doctrine of separation of powers because the grand jury is part of the judicial department. Although the grand jury is an agency of *259the court [citation omitted], the court’s supervisory powers do not include the power to substitute its own determination of the crime to be charged for that of the grand jury. An indictment represents the grand jury’s decision that there is probable cause to believe that an offense has been committed and that the defendant committed it. [Citation omitted]. The court is authorized to grant a motion to dismiss an indictment for lack of probable cause only if “[t]he evidence admissible before the grand jury was not sufficient * * * to establish the offense charged or any lesser or other included offense or any offense of a lesser degree.” Rule 17.06, subd. 2(l)(a). When an indictment has been found by the grand jury, it is the county attorney’s duty to “prosecute the same to a final determination in the district court.” [Citation omitted]. The prosecutor is generally accorded great discretion in determining the manner in which to fulfill his duty to prosecute. [Citations omitted]. The decision whether to seek a conviction of the crime charged in an indictment or engage in plea negotiations is in most instances left to the prosecutor’s discretion. [Citation omitted]. The fact that the grand jury is administered within the judicial department thus does not weaken the prosecutor’s argument that the trial court, in accepting defendant’s plea of guilty to a lesser included offense without the prosecutor’s consent, would be exercising a power properly belonging to the prosecutor as an executive official.
Id. at 620, n. 3.
The majority relies on this court’s decision in City of St. Paul v. Landreville, 301 Minn. 43, 47, 221 N.W.2d 532, 534 (1974), in arguing that the trial court has inherent authority to divert a prosecution over the prosecutor’s objection. In Landreville we refused to review a dismissal of a criminal prosecution on the trial court’s own motion and over the prosecutor’s objection. This court took the position that the trial court, even in the absence of the authority given by section 631.21, has the inherent authority on its own motion to- dismiss a prosecution before trial “in furtherance of justice.” This court also indicated that such a dismissal was not ap-pealable by the state because it did not necessarily defeat further prosecution because jeopardy attaches only when the jury is sworn or trial commences and the prosecutor therefore is not barred from refiling the charges if necessary and proper. This court added:
[W]e do not attempt to curtail the discretion of the prosecutor to pursue other adequate avenues of procedure. To rule otherwise may well discourage the prosecutor from using his discretion in establishing or utilizing the type of successful pretrial intervention programs being used throughout the country as alternate methods of disposition. Rather, we would commend any concerted action between the court and the prosecutor to reach a desired end.
301 Minn, at 47, 221 N.W.2d at 534.
There is a tendency in dealing with separation-of-powers issues to take an either/or approach. That is the approach that this court in effect has taken in declaring that the trial court has the inherent authority to “go it alone” on the issue of pretrial diversion. While the arguments are strong that the prosecutor in this case perhaps should not have filed the charge in the first place and that it might have been prudent for the prosecutor to agree to the diversion requested by the trial court, I do not think that the trial court had the power or the authority to order the diversion over the prosecutor’s objection.
My understanding is that in most jurisdictions the diversion programs give a very limited role to the judiciary, not the broad power to order diversion over the prosecutor’s objections. Note, Pretrial Diversion from, the Criminal Process, 83 Yale L.J. 827, 840 (1974). Indeed, the De Novo program in Minneapolis was said in the just-cited Note to be an example of a diversion program in which most of the discretion was with the prosecutor, “the only role played by the judge [being] in granting the motion for continuance * * * or for dismissal of charges.” Id. at 840 n. 67 (quoting testimony of program director).
It is also interesting that judicial reticence to interfere with prosecutorial discretion with *260respect to pretrial diversion appears to be the norm. Id. at 839. According to the Note, the National Advisory Committee on Criminal Justice Standards and Goals took the position that “the decision by the prosecutor not to divert a particular defendant should not be subject to judicial review.” Id. at 839.
While I do not believe that the trial court has inherent authority to order diversion over the objection of the prosecutor and while there is no statutory authority for that, I believe that there is room for both legislative oversight and judicial involvement. It seems to me that the legislature is free to adopt standards and guidelines controlling the prosecutor’s exercise of discretion with respect to diversion, and in my opinion those standards and guidelines should provide the trial court with some limited review of the prosecutor’s exercise of that discretion.
For the foregoing reasons, I respectfully dissent from the majority’s decision.
. Statute of Westminster I, 3 Edward I chapter 13.
. The majority comments that "[djespite the parties’ amicable resolution of the situation, an unnamed person notified the Chaska Police Department of the past sexual contact between Krotzer and C.H.M.” It should be noted, I think, that a violation of Minn.Stat. § 609.344, to which Krot-zer pled guilty constitutes "sexual abuse” which certain persons, including physicians, teachers, and school counselors, are statutorily mandated to report to a law enforcement or welfare agency. Minn.Stat. § 626.556 (1994).
. In United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965), cert. denied, sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), the United States Court of Appeals had this to say about the prosecutor's power to control criminal prosecutions:
Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as *257an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.
In State v. Herme, 298 N.W.2d 454, 455 (Minn.1980), we said:
Necessarily, prosecutors must have considerable discretion in the charging decision. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978); State v. Andrews, 282 Minn. 386, 165 N.W.2d 528 (1969); ABA Standards on the Prosecution Function § 3.9 (1971). As a general rule, the •prosecutor’s decision whom to prosecute and what charge to file is a discretionary matter which is not subject to judicial review absent proof by defendant of deliberate discrimination based oh some unjustifiable standard such as race, sex, or religion. See Bordenkircher v. Hayes, 434 U.S. at 364-65, 98 S.Ct. at 668-69; City of Minneapolis v. Buschette, 307 Minn. 60, 64-65, 240 N.W.2d 500, 503 (1976); State v. Andrews, 282 Minn. at 392, 165 N.W.2d at 532.