                             This opinion will be unpublished and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                            UNPUBLISHED OPINION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


                                              3
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.


                                               4
       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


                                             5
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.




                                              6
       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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