State v. WeltzinState v. Weltzin
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- Before:
- Huspeni
OPINION
DORIS 0. HUSPENI, Judge. *
In this appeal from a trial court order finding appellant Blair Christian Weltzin guilty of underage consumption in violation of Duluth, Minn., Code of Ordinances § 8-27(c) (1986), Weltzin contends that he was deprived of his right to a jury trial when the court granted the prosecution’s motion to amend its complaint to charge underage consumption in violation of the Duluth city ordinance rather than under
FACTS
On April 4, 1999, Weltzin received a police citation charging him with underage misdemeanor consumption in violation of MinmStat.
At the pretrial conference on May 27, 1999, respondent City of Duluth (city) moved to amend the charge to consumption by a minor in violation of Duluth, Minn., Code of Ordinances § 8 — 27(c) (1986), whereby the maximum penalty for violation is a $700 fine. Weltzin opposed the motion, the court denied it, and the case was set for jury trial on September 21.1999.
On September 13, 1999, Weltzin’s attorney phoned the city prosecutor to request a trial continuance. The city agreed, and informed Weltzin’s attorney of its intent to renew its motion to amend the citation in light of this court’s decision, released after the May pretrial hearing, in In re Welfare of D.D.B., 596 N.W.2d 666, 667-68 (Minn.App.1999) (holding that violations of the Duluth City Code are neither misdemeanors nor petty misdemeanor, but rather simply ordinance violations). The parties agreed to argue the motion to amend at a second pretrial conference on September 23.1999.
The city filed and served its formal motion to amend on September 20, 1999. Following oral arguments on September 23, the district court granted the city’s motion, reasoning that the city had the
ISSUE
Did the trial court abrogate Weltzin’s right to a jury trial by granting the prosecution’s motion to amend the citation to charge Weltzin with a violation of Duluth, Minn., Code of Ordinances § 8-27(c) (1986), rather than misdemeanor underage consumption in violation of
ANALYSIS
Weltzin argues
The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
Id.
After agreeing to continue the September 21, 1999 trial date, the prosecution served a formal motion to amend the citation on September 20, 1999, and both parties argued the motion at the September 23, 1999 pretrial conference. Because jeopardy had not attached at the pretrial conference and the trial was not held until December 28, 1999, rule 17.05 does not apply to the prosecution’s motion to amend the citation. Moreover, the policies behind
A prosecuting attorney, if moving promptly, may seek a continuance to file a new complaint during pretrial proceedings if (1) the initial complaint does not properly name or describe the defendant or offense charged; or (2) the evidence presented at the proceeding shows the defendant has committed a different offense from that charged in the complaint and that the prosecuting attorney intends to charge the defendant with that offense.
The city argues initially that rule 3.04, subd. 2, is intended to apply only to cases in which criminal complaints have been issued by prosecutors, and is inapplicable in this ease because there was no “complaint” within the meaning of this rule at the time the motion to amend was brought. The city argues that because the peace officer’s citation was the only charging document in existence during the pretrial proceedings, requiring the city to meet the requirements of rule 3.04, subd. 2, would deprive the prosecutor of the right to determine what charge to bring against an accused and, in effect, transfer to the peace officer all charging discretion when a citation is issued. The argument of the city is persuasive, and we are hesitant to impose upon a prosecutor who has had no opportunity to review a criminal charge issued by citation, the burden of meeting requirements of a rule which appears to address instances where a prosecutor was involved in the original decision of which offense to charge.
Even if we were to assume, however, that rule 3.04, subd. 2, applies here, we would conclude that the city satisfied both the requirement that a motion be timely and that the amended complaint charge an offense different from that initially charged.
While Weltzin contends the prosecution failed to move promptly, the record shows the prosecution orally moved to amend the citation at the first pretrial conference on May 27, 1999; that motion was opposed by Weltzin and denied by the court. But that motion was timely.
There is no indication the citation improperly named the defendant or incorrectly described the offense charged. Thus, the only question remaining under rule 3.04, subd. 2, is whether a different offense was charged in the amended complaint. The city suggests it moved to amend the citation to charge Weltzin with a violation of the Duluth City Code to avoid giving him a criminal record, and, therefore, a different offense was, in fact, charged.
Caselaw indicates that where an amendment affects an “essential element” of the charged offense, a “different offense” is charged.” Guerra, 562 N.W.2d at 13 (citation omitted). We are cited to no authority to assist us, however, in determining whether amending a criminal misdemeanor to a civil ordinance violation affects an essential element of the charged offense. Perhaps the lack of authority can be attributed to the fact that few accused of a crime would complain about a trial court determination that a complaint charging an offense punishable by incarceration be amended to charge an offense under which no incarceration is possible.
In Minnesota, it is “unlawful for any person under the age of 21 years to consume any alcoholic beverages.”
A prosecutor may not treat a misdemeanor criminal offense as a petty misdemeanor unless the defendant consents and the court approves.
Statutory and Constitutional Right to Jury Trial
Weltzin contends the trial court abrogated his statutory right to a jury trial by allowing the citation to be amended to charge a violation of the Duluth City Code. We disagree. Under the statutory law, an accused is entitled to a jury trial only if a conviction for the charged offense could result in imprisonment.
Weltzin’s argument that his constitutional right to a jury trial was violated must also fail. A crime is defined as “conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine.”
Finally, the city strongly argues that this case ultimately involves competing constitutional considerations of the essential functions of the prosecution and the separation-of-powers doctrine versus an accused’s claimed right to a jury trial, and that the trial court’s decision to permit amendment of the “complaint” was an appropriate recognition of the discretion vested in the prosecutor in exercising the charging function. There is merit to this argument.
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 on some unjustifiable standard such as race, sex, or religion.
State v. Johnson,
514 N.W.2d 551, 556 (Minn.1994) (quoting
State v. Herme,
298 N.W.2d 454, 455 (Minn.1980)). Absent contrary legislative intent and discrimination against a particular class of defendants, “the prosecutor may prosecute under any statute that the defendant’s acts violate without regard to the penalty.”
State v. Chryst,
320 N.W.2d 721, 722-23 (Minn.1982) (citations omitted). In light of a prosecutor’s considerable charging-au
Here, Weltzin has not alleged that amending the citation constituted deliberate discrimination and there is no indication the prosecutor otherwise abused her charging-authority discretion. Importantly, as the trial court noted, the prosecutor had the authority to dismiss the tab charge in its entirety, and to recharge the matter at a later time.
See
DECISION
The district court did not violate the Minnesota Rules of Criminal Procedure or abrogate Weltzin’s right to a jury trial by amending the citation to charge Weltzin with a violation of Duluth, Minn., Code of Ordinances § 8-27(c) (1986), rather than
Affirmed.
Notes
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
. The comment to
. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. * ⅜ * In all [non-felony] criminal prosecutions, the legislature may provide for the number of jurors, provided that a jury have at least six members.