Minn. R.Crim. P. 28.04, subd. 1(2). In State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn. 1997), this court held that a district court's stay of adjudication in a non-felony case was appealable by the state as a "pretrial order" under Minn. R.Crim. P. 28.04, subd. 1(1). Thoma, 569 N.W.2d at 206-07, involved four petty misdemeanors for shoplifting and one misdemeanor for underage drinking and driving. In each of the four petty misdemeanors, the district court accepted the defendants' guilty pleas and stayed adjudication; our decision does not specify whether there were other consequences.

Appellant argues that this court should create a right of appeal following a stay of adjudication entered pursuant to section 152.18, subd. 1. Appellant acknowledges that the court of appeals is not required to hear such an appeal because a stay of adjudication is not considered a final judgment from which a criminal defendant may appeal as of right. Cf. State v. Thoma, No. C8-97-465 (Minn. Nov. 13, 1997), reported at 571 N.W.2d 773 (Minn. 1997) (table), aff'g 569 N.W.2d 205, 207-08 (Minn.App. 1997); Minn.R.Crim.P. 28.02, subd. 2. Thus, appellant argues that this court should consider the interests of justice and judicial economy and exercise its supervisory powers to create a right of appeal in the present case. We begin our discussion of appellant's argument by looking to the Minnesota Rules of Criminal Procedure.

The state filed its appeal from the district court's stay of adjudication on November 24, 2004, 27 business days after entry of the district court's order. On December 22, 2004, a special-term panel of this court questioned jurisdiction over the state's appeal based on the language of State v. Thoma, 569 N.W.2d 205, 208 (Minn.App. 1997), aff'd mem., 571 N.W.2d 773 (Minn. 1997) (classifying stays of adjudication as pretrial orders for purposes of appeal).

The Minnesota Supreme Court did not expressly address the issue of an exception in State v. Cash, 558 N.W.2d 735 (Minn. 1997), but Cash was a misdemeanor case which it reviewed, and this court has since reviewed misdemeanor sentences of stay of adjudication based on Cash. See Statev. Thoma, 569 N.W.2d 205 (Minn.App.) reviewing stay of adjudication in appeal by state after concluding such appeals are appeals from pretrial orders), aff'd mem. 571 N.W.2d 773 (Minn. 1997). It might be better judicial policy to spell out the exception to criminal rule 28.04, if there is one. I am satisfied that a de facto exception has been carved out.

1999), that "a stay of adjudication is considered a pretrial order for purposes of appeal." 595 N.W.2d 192, 196 (Minn. 1999) (citing State v. Thoma, 569 N.W.2d 205 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn. 1997)).

The district court's finding that the defendant's offense is less serious than a typical offense does not permit the district court to stay adjudication, even if it might support a downward departure. See id. (reversing a stay of adjudication but noting that, "[t]o the extent that the assault was less serious than the typical case of misdemeanor assault, the trial court was free to be lenient in sentencing the defendant" on remand); State v. Thoma, 569 N.W.2d 205, 208-09 (Minn. App. 1997) (stating that the presence of mitigating factors did not justify a stay of adjudication), aff'd mem., 571 N.W.2d 773 (Minn. 1997).

But "the state may appeal, as `pretrial orders,' stays of adjudication in nonfelony cases." State v. Thoma, 569 N.W.2d 205, 208 (Minn. App.), aff'd mem., 571 N.W.2d 773 (Minn. 1997).

Minnesota law provides that "a sentence constitutes a final judgment, or adjudication, of conviction." State v. Thoma, 569 N.W.2d 205, 207 (Minn.App. 1997) (citing Minn.R.Crim.P. 28.02, subd. 2(1)); s ee also State v. Putzier, 183 Minn. 423, 424-25, 236 N.W. 765, 766 (1931) (explaining that there has been no final judgment until there has been both a determination of guilt and a judgment of sentence imposing the penalty which will be enforced without further judicial action). A finding of guilt is not an adjudication of guilt.

This court accepted jurisdiction over the appeal, concluding that the district court's order was equivalent to a stay of adjudication, appealable by the state as a pretrial order. See State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.), aff'd mem., 571 N.W.2d 773 (Minn. 1997).

Neither this court nor the supreme court has established the standard of review that should be applied in reviewing stays of adjudication. See State v. Thoma, 569 N.W.2d 205, 208 (Minn.App.), aff'd mem. 571 N.W.2d 773 (Minn. 1997).