STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1482

State of Minnesota,

Respondent,

vs.

Douglas John Olson,

Appellant.

Filed July 13, 2015

Reversed

Ross, Judge

Hennepin County District Court

File No. 27-CR-14-3196

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City 

Attorney, Minneapolis, Minnesota (for respondent)

John L. Lucas, Minneapolis, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Johnson, 

Judge. 

S Y L L A B U S

A prosecutor abuses the state’s voluntary dismissal authority under rule 30.01 of 

the Minnesota Rules of Criminal Procedure 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. 
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O P I N I O N

ROSS, Judge

The state charged Douglas Olson with driving while impaired. The prosecutor was 

unprepared to try the case on the date scheduled for trial because the state’s only 

witness—the arresting trooper—was voluntarily absent. The prosecutor moved to 

continue the trial to a later date, warning that if the district court denied the motion, the 

state would “take action, as it deems fit,” to simply dismiss the charge under criminal 

procedural rule 30.01 and refile it as a new case. The district court denied the state’s 

continuance motion and the state dismissed and refiled the charge. Olson moved to 

dismiss the refiled charge, and the district court denied the motion because it reasoned

that the state did not dismiss the original complaint in bad faith. Because a prosecutor 

does not act in good faith under rule 30.01 when he dismisses a criminal charge merely to 

refile it, effectively nullifying the district court’s refusal to grant his motion to continue, 

the district court erroneously concluded that the prosecutor acted in good faith. We 

therefore reverse. 

FACTS

In June 2013 a state trooper arrested Douglas Olson for impaired driving and the 

state tab charged Olson. The district court scheduled trial for January 23, 2014. The 

afternoon before the trial date the prosecutor tried to contact the trooper and learned that 

the trooper had left the state for a job interview and would not be back in time to testify. 

The prosecutor did not immediately notify the district court. 
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The district court called Olson’s trial the next morning. The prosecutor then 

announced that the trooper—the state’s only intended witness—had left town for a job 

interview. He asked the district court to continue the trial to a later date. Olson’s attorney 

urged the district court to deny the motion and dismiss the charge. Otherwise, the 

attorney predicted, “the prosecutor will exercise a power that’s unilateral in dismissing 

this case” and refile the charge, in “essence . . . granting their own continuance.” The 

prosecutor confirmed Olson’s prediction, announcing, “[T]he state will take action, as it 

deems fit. . . . If the motion for a continuance is denied, it is the state’s intention to 

dismiss this case and to recharge it.”

The district court refused to continue the trial because the motion lacked sufficient 

cause, and the prosecutor then dismissed the charge and refiled it within two weeks. The 

refiled case went to a different district court judge. Olson moved the district court to 

dismiss the charge because the prosecutor had acted in bad faith by dismissing and 

refiling it to circumvent the district court’s decision to deny the state’s request for a 

continuance. The district court denied Olson’s motion to dismiss because it believed the 

prosecutor did not act in bad faith in light of the absent witness. 

The parties proceeded with a stipulated-facts trial, allowing Olson to preserve his 

challenge to the district court’s refusal to dismiss the refiled criminal complaint. The 

district court found Olson guilty of fourth-degree impaired driving. 

Olson appeals the district court’s refusal to dismiss the refiled complaint.

ISSUE

Did the district court abuse its discretion by denying Olson’s motion to dismiss?
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ANALYSIS

Olson argues that the district court allowed the prosecutor to misuse rule 30.01 of 

the Minnesota Rules of Criminal Procedure by dismissing and then refiling the charge to 

circumvent the district court’s denial of the state’s motion to continue. We interpret the 

procedural rule de novo. State v. Barrett, 694 N.W.2d 783, 785 (Minn. 2005). In doing 

so, we look to the words of the rule and consider its purpose. State v. Dahlin, 753 N.W.2d 

300, 305 (Minn. 2008). 

We begin with the rule’s relevant language: “The prosecutor may dismiss a 

complaint or tab charge without the court’s approval, and may dismiss an indictment with 

the court’s approval. The prosecutor must state the reasons for the dismissal in writing or 

on the record.” Minn. R. Crim. P. 30.01. The prosecutor’s reasons are important to how 

the district court treats the dismissal, because this court and the supreme court have 

interpreted the rule as allowing the prosecutor to refile a complaint that the state 

voluntarily dismissed only if the prosecutor dismissed the complaint in good faith. State 

v. Couture, 587 N.W.2d 849, 853 (Minn. App. 1999), review denied (Minn. Apr. 20, 

1999); cf. State v. Pettee, 538 N.W.2d 126, 131 n.5 (Minn. 1995) (observing good-faith 

requirement for refiled indictments).

A district court supervising a prosecutor’s use of this rule must therefore consider 

the prosecutor’s actions in light of this good-faith standard. The prosecutor indicated on 

the record the state’s reason for dismissing Olson’s charge. After Olson’s counsel warned 

that the state would use a dismiss-and-refile tactic to attempt to bypass the district court’s 

denial of the state’s pending motion to continue the trial, the prosecutor confirmed this, 
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declaring, “[T]he state will take action, as it deems fit,” in response to the district court’s 

decision on the state’s continuance motion. And he left no room for misunderstanding, 

adding that “[i]f the motion for a continuance is denied, it is the state’s intention to 

dismiss this case and to recharge it.” In so many words, the prosecutor declared that 

either the district court must yield to the state’s unsupported motion for continuance or 

the state would effectively enter its own order for continuance by way of a rule-30.01 

dismissal-and-refiling. Our decision in this appeal therefore turns on whether a 

prosecutor’s use of the rule to unilaterally dismiss and refile a criminal complaint to 

effect a do-it-yourself continuance order – essentially nullifying the district court’s 

considered decision to deny the state a continuance – is an act of good faith.

We do not interpret and apply rule 30.01 in a vacuum. The rule has a federal 

predecessor, which is rule 48(a) of the Federal Rules of Criminal Procedure. See Minn. R. 

Crim. P. 30 cmt. (citing caselaw that connects the federal and state rules). And we have 

been specifically taught that, because “Rule 30.01 essentially adopts the provisions of 

Rule 48(a), Federal Rules of Criminal Procedure,” caselaw interpreting federal rule 48(a) 

informs the interpretation of state rule 30.01. State v. Aubol, 309 Minn. 323, 326, 244 

N.W.2d 636, 638 (1976) (footnote omitted). So we can look to the federal rule as we 

consider whether the prosecutor’s purpose here is a good-faith use of rule 30.01, as the 

district court concluded. Both the general principles that underlie the rule and the specific 

consideration of courts that have addressed it inform us that we must reject the state’s 

implicit position that the prosecutor has unfettered authority to dismiss and refile a 

complaint. 
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The federal rule from which our state rule was adopted reflects the separation of 

executive and judicial powers. Before the federal rule was adopted in 1944, prosecutors 

could dismiss charges at will. See Fed. R. Crim. P. 48(a) Notes of Advisory Committee 

on Rules (observing that the rule “will change existing law” that allowed the “prosecutor 

[to] enter a nolle prosequi in his discretion, without any action by the court”). Citing 

federal rule 48(a), among other sources, future Chief Justice Burger explained for the 

circuit court, “Few subjects are less adapted to judicial review than the exercise by the 

Executive of his discretion in deciding when and whether to institute criminal 

proceedings, or what precise charge shall be made, or whether to dismiss a proceeding 

once brought.” Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967). Given the 

prosecutor’s broad authority as a member of the executive branch, “as an incident of the 

constitutional separation of powers, . . . the courts are not to interfere with the free 

exercise of the discretionary power of [prosecutors] in their control over criminal 

prosecutions.” Id. at 481. Judge Burger then gave an example demonstrating how a 

prosecutor exercises this discretionary control and the reason courts generally do not 

encroach in those decisions: 

[The prosecutor] is expected to exercise discretion and 

common sense to the end that if, for example, one is a young 

first offender and the other older, with a criminal record, or 

one played a lesser and the other a dominant role, one the 

instigator and the other a follower, the prosecutor can and 

should take such factors into account; no court has any 

jurisdiction to inquire into or review his decision.

Id. at 482. Put another way, the executive branch’s absolute discretion not to charge 

would be illusory if it did not also have the authority to dismiss a charge. 
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Given this background, we can see that federal rule 48(a) and, by extension, state 

rule 30.01, have internal opposing features. On one hand, each embodies the prosecutor’s 

historic discretion to dismiss a charge, but on the other, each invites some judicial 

oversight into that process. This oversight is justified by the fact that, despite a 

prosecutor’s significant discretion as an executive branch officer, the executive branch 

has no discretion to cross into judicial branch authority. The state supreme court 

recognized this principle long ago, even before the adoption of either the federal or state 

rule. That is, the district court has the authority to police the strategic attempts by 

prosecutors to undermine the inherent case-management authority that falls exclusively 

within the court’s province: “The county attorney’s conduct of criminal prosecutions is 

under the control of the court. Continuances, nolle prosequis, and dismissals of causes 

must be sanctioned by the court.” State v. Cooper, 147 Minn. 272, 276, 180 N.W. 99, 101 

(1920). In other words, more than 10 years before the federal courts adopted rule 48 and 

half a century before Minnesota adopted rule 30.01, the supreme court had already 

recognized that a Minnesota prosecutor could not, without court approval, even enter a

nolle prosequi or dismiss a criminal action, let alone unilaterally effect a continuance. 

That is, despite the general authority of the executive branch and the broad discretion 

afforded to prosecutors in charging and dismissal decisions, in Minnesota prosecutors 

historically have lacked unfettered power to effect a continuance or dismiss a charge. It is 

evident then that the prosecutor’s stated purpose here to use the dismiss-and-refile tactic 

to effect a continuance for the state (and to undo the district court’s refusal to order the
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continuance), infringes the authority historically vested in the district court and 

unavailable to prosecutors in Minnesota before rule 30.01 was adopted in 1975. 

We have no reason to conclude that rule 30.01 has removed this fence between the 

prosecutor’s discretion to dismiss and the court’s discretion to deny the prosecutor a 

continuance. Rather, the rule, along with the supreme court’s recognition in Pettee that a 

prosecutor cannot refile an indictment that is dismissed under rule 30.01 in bad faith, 

embody the same principles.

Federal caselaw also embodies these principles. Caselaw cited approvingly by our 

state supreme court informs us that the prosecutor’s reason for dismissing under rule 

30.01 here establishes that he was not applying the dismissal rule in good faith. In United 

States v. Hayden, the Ninth Circuit interpreted federal rule 48(a) and observed, “Of 

course, had the district judge concluded and specifically found that the government 

utilized the Rule 48(a) motion as a pretext to bypass his denial of the continuance, a clear 

act of bad faith, he could have reversed his earlier Rule 48(a) ruling.” 860 F.2d 1483, 

1488–89 (9th Cir. 1988) (emphasis added). Our state supreme court cited Hayden

approvingly for the proposition that rule 30.01 “allows the state, provided it is not acting 

in bad faith, to voluntarily dismiss an indictment without prejudice and later to reindict 

based on the same or similar charges.” Pettee, 538 N.W.2d at 131 n.5. We in turn have 

cited Pettee’s circumscription of bad-faith refilings of indictments to apply to charges 

refiled by complaint as well. Couture, 587 N.W.2d at 853. Under this caselaw, we are 

convinced that a prosecutor’s plan to use the rule as a dismiss-and-refile device to 
9

circumvent a district court’s refusal to grant the prosecutor’s motion to continue is “a 

clear act of bad faith.”

Our holding is consistent with the district court’s related statutory authority. The 

statutes allow for a continuance to be effected only “by the court,” not by the parties. 

Minn. Stat. § 631.02 (2012). The parties have a limited role and a significant burden

when it comes to efforts to continue: “either the prosecution or defense” may move the 

court for a continuance, and the moving party “must show sufficient cause for the 

continuance.” Id. And of course the district court has the authority to deny the 

prosecutor’s motion to continue. See State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 

1990). This authority and the entire arrangement is almost useless under the state’s theory

that a prosecutor can use the rule at will to obtain a continuance denied by the court. How 

could district court judges effectively manage their trial calendars if, in any criminal case 

and at any pretrial moment of the prosecutor’s choosing, the prosecutor could cite rule

30.01 to fashion the state’s own continuance? What is the point of a statute that requires 

the moving party to show “sufficient cause” for a continuance if one of the parties can

use rule 30.01 to obtain a continuance without that showing? What is the significance of 

the district court’s discretion to deny a motion to continue if the court no longer possesses

the authority to prevent the state from unilaterally granting itself a continuance? To allow 

the state to use the rule for the express purpose of evading the district court’s continuance 

denial would erroneously suggest that rule 30.01 and its federal counterpart were crafted 

to give only the prosecutor the means to obtain a continuance at will, leaving the 

defendant alone to submit to the district court’s calendar-management authority. 
10

We think instead that rule 30.01 expressly requires the prosecutor to state on the 

record the reasons for dismissal so that the district court can continue to exercise its

historic, inherent authority to reject bad-faith, reissued complaints. Cf. State v. Hart, 723 

N.W.2d 254, 259 (Minn. 2006) (restating the district court’s inherent authority to dismiss 

a case in the interests of justice). And we are satisfied that a prosecutor’s attempt to sidestep the district court’s authority to reject insufficient continuance motions constitutes a 

bad-faith reason for dismissal under rule 30.01. We therefore hold that when a prosecutor 

voluntarily dismisses a complaint to initiate a dismiss-and-refile tactic and to circumvent 

the district court’s denial of a continuance motion, the prosecutor acts in bad faith in both 

the dismissal and the refiling. 

We focus again on this case. The prosecutor, the defendant, and the defense 

attorney were all present in the courtroom after the district court called Olson’s case for 

trial. Everyone appeared at the appointed time except the state’s only witness, whom the 

prosecutor had not apparently subpoenaed to appear and who had left the state voluntarily 

long after the district court had informed the parties of the scheduled trial date. No one 

challenged the correctness of the district court’s decision that the state did not show 

substantial cause for its requested continuance, even though the district court might have 

decided that motion differently in its discretion. 

The prosecutor’s stated reason for the dismissal could not have been clearer. 

Again, he said, “If the motion for a continuance is denied, it is the state’s intention to 

dismiss this case and to recharge it.” He declared flatly, “[T]he state will take action, as it 

deems fit.” The district court refused to dismiss the refiled charge notwithstanding the 
11

prosecutor’s stated purpose of thwarting the court’s continuance order, albeit an order 

issued by a different district court judge. Although the district court correctly explained 

that the state “may later recharge [when a complaint was dismissed under Rule 30.01] . . . 

provided it is not acting in bad faith,” it failed to recognize that the prosecutor’s plainly

stated purpose to override the court’s uncontested continuance decision by executive 

action is never an act of good faith. The court therefore erroneously concluded that “the 

state did not act in bad faith.” Because the state may not refile charges that are dismissed 

in bad faith under rule 30.01, the district court abused its discretion by refusing to dismiss 

the refiled charge here. 

D E C I S I O N

The state acted in bad faith when it used its dismissal power under rule 30.01 as a 

dismiss-and-refile tactic to circumvent the district court’s decision denying the state’s 

pretrial motion to continue the criminal trial. The district court therefore abused its 

discretion by denying Olson’s motion to dismiss the complaint filed under the state’s 

bad-faith use of rule 30.01. We reverse Olson’s conviction.

Reversed.