concurring specially
I concur in the decision of the majority to reverse and remand for trial.
The record and the trial court’s memorandum of law attached to its order leave no doubt that the court dismissed counts one and three on questions of law. I agree with the majority that the State has the right of appeal pursuant to Minnesota Rules of Criminal Procedure 28.04. When a prosecution’s complaint is dismissed on a point of law rather than because enough facts to show probable cause were not present, dismissal is appealable by the State. State v. Aarsvold, 376 N.W.2d 518 (Minn.Ct.App.), pet. for rev. denied (Minn. Dec. 30, 1985), citing State v. Barrutt, 312 N.W.2d 667 (Minn.1981) and State v. Wicks, 258 N.W.2d 598 (Minn.1977).
The trial court dismissed one count of burglary in the first degree, Minn.Stat. § 609.582, subd. 1(a) (1984), and one count of burglary in the second degree, Minn. Stat. § 609.582, subd. 2(a) (1984), holding that since the only crime the State claimed defendant had on his mind while entering the building was the intent to commit a misdemeanor (misdemeanor criminal contempt, Minn.Stat. § 588.20(4) (1984)), that *283the dismissed counts could not lie as those two counts required intent to enter a building and commit a gross misdemeanor or felony. The trial court held that burglary in the fourth degree, Minn.Stat. 609.582, subd. 4, was the exclusive remedy when the unauthorized entry was made with the intent to commit only a misdemeanor.
I agree with the majority that when the intent is only to commit a misdemeanor, an unauthorized entry may still support a burglary charge under the two dismissed counts if the building is a dwelling (burglary in the second degree, Minn.Stat. § 609.-582, subd. 2(a)) or if the building is a dwelling and another person not an accomplice is present (burglary in the first degree, Minn. Stat. § 609.582, subd. 1(a)).
Burglary in the fourth degree by definition involves a building, which can mean any building. The burglary statutes state that entry of a dwelling, meaning a building used as a permanent or temporary residence, may be considered a separate and more serious crime. Thus, the added element of a “dwelling” in the two dismissed counts allows them to be charged when the unauthorized entry is coupled with an intent to commit any crime.
In addition to dismissing counts one and three, the trial court continued its reasoning that the more serious burglaries require an attempt to commit a crime in excess of a misdemeanor when it stated in its memo that count two (burglary in the first degree, Minn.Stat. § 609.582, subd. 1(c)), would lie only if the evidence admitted at trial sustained an assault in excess of misdemeanor assault. Thus, I agree with the reasoning of the majority that the dismissed counts are appealable, and the trial on those two charges is technically proper.
However, I am concerned about another aspect of this case, and that is the possibility of overcharging. Less than a year prior to the incident, the defendant and the victim had been divorced, and there were two minor children involved with whom the defendant was granted reasonable visitation. The divorce decree prohibited defendant from consuming alcohol or any controlled substance during visitation or for twelve hours before visitation. From this portion of the dissolution decree and from the facts alleged in the various ten counts, a chemical dependency problem on the part of defendant can reasonably be inferred.
Defendant went to a home where his ex-wife was living with another man, forced his way into the home and hit or slapped his ex-spouse at least three times, once with a telephone after he broke the connection. The evidence supports the finding that defendant had violated the terms of the dissolution decree prohibiting drinking. Defendant claimed he wished to visit with his children, but the evidence easily supports findings that midnight was not a regularly scheduled visitation hour and that his behavior was clearly inappropriate, involving elements of trespass and misdemeanor assault.
The State concedes that none of the few blows defendant inflicted on the victim would support any assault charge other than misdemeanor assault. Based on this set of facts, a criminal complaint was filed against defendant charging the following ten different counts:
Count I: Burglary in the First Degree— 609.582, subd. 1(a)
Count II: Burglary in the First Degree— 609.582, subd. 1(c)
Count III: Burglary in the Second Degree — 609.582, subd. 2(a)
Count IV: Burglary in the Fourth Degree — 609.582, subd. 4
Count V: Trespass — 609.605(6)
Count VI: Trespass — 609.605(6)
Count VII: Criminal Damage to Property — 609.595, subd. 2
Count VIII: Assault in the Fifth Degree —609.224 (1)
Count IX: Assault in the Fifth Degree— 609.224 (2)
Count X: Criminal Contempt — 588.20(4)
At oral argument, upon direct response to a question concerning the possibility of overcharging, the assistant county attorney handling the matter honestly and candidly agreed that he probably overcharged and agreed that the numerous charges may have influenced the trial court in its dismis*284sal of counts one and three. The attorney stated that, when presented with the facts of the case, because he had not been involved in this type of case before, he scoured the statutes to make sure that he did not miss anything. He stated that he wanted to be sure and charge under every possible statute because it is always easier to dismiss counts later rather than to charge new ones.
While I approve of the candor of the prosecuting attorney’s response, I’m troubled by a case involving ten counts on this factual situation. The most serious count involves a presumptive sentence (assuming a zero criminal history score) of 24 months incarceration in the state penitentiary, and there are three other serious felony counts and six misdemeanors. I’m not sure that the drafters of the burglary statutes contemplated this fact situation.
If, due to the interests of justice, there was a reluctance on the part of the trial court to sanction overcharging, I concur with the trial court in its attempt to de-es-calate the charges.