HAROLD W. SCHULTZ, Judge.
The state appeals a pretrial order dismissing an enhanced charge of felony fifth-degree assault, Minn.Stat. § 609.224, subd. 4(b) (1996), which requires two or more prior violent assault convictions within three years. Because the plain language of the statute does not require specific sequencing of prior convictions, the enhanced felony charge applies to respondent James Dana Hanson, whose two prior assault convictions occurred on the same day. We reverse and remand.
On March 29, 1996, Hanson pleaded guilty to two fifth-degree misdemeanor domestic assaults arising from incidents occurring on December 14, 1995 and January 23, 1996. He was sentenced to 68 days in jail on each charge, was ordered not to have contact with the victim, and was required to complete domestic abuse counseling.
According to the present complaint, a third assault occurred on March 8, 1998, when Hanson and J.R., his girlfriend, were arguing in their home and Hanson struck J.R. several times on the head. As J.R. left the house with her three-year-old son, Hanson followed her, knocked her to the ground, and kicked her in the head. Due to his two prior convictions, the state charged Hanson with fifth-degree felony assault, Minn.Stat. § 609.224, subd. 4(b), as well as a separate count of child endangerment, Minn.Stat. § 609.378, subd. 1(b)(1) (1996).
At a probable cause hearing, Hanson conceded that he committed the March 8 assault, but he asserted that it should be charged only as a gross misdemeanor because the two prior convictions failed to occur in the sequence necessary to be charged as a felony. Hanson claims the proper sequence of offenses preceding an enhanced charge must necessarily be a first offense resulting in a conviction, a second offense resulting in a conviction, and a third offense. The trial court agreed and dismissed the fifth-degree felony assault charge against Hanson. The state appeals.
I. For purposes of appellate review of a pretrial order dismissing a charge, is the critical impact test met if the dismissal functionally results merely in a reduction of the charge from a felony to a gross misdemeanor?
II. Do two prior convictions, arising from separate incidents but pleaded on the same day, constitute two separate convictions in determining whether to enhance the charge under Minn.Stat. § 609.224, subd. 4(b) (1996)?
The state may appeal a dismissal for probable cause if it is based on a legal determination, such as statutory interpretation. State v. Duffy, 559 N.W.2d 109, 110 (Minn.App.1997); State v. Niska, 499 N.W.2d 820, 823 (Minn.App.1993), aff'd in part, rev'd in part, 514 N.W.2d 260 (Minn.1994); see Minn. R.Crim. P. 28.04, subd. 1(1) (stating general rule that probable cause dismissals are not appealable).
To prevail on appeal from a pretrial order, the state must clearly and unequivocally show both that "the trial court erred in its judgment and * * * the error will have a critical impact on the outcome of the trial." State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted); see State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995). Critical
Respondent argues that the state has not shown critical impact because the periods of confinement could potentially be the same irrespective of whether respondent was charged with a gross misdemeanor or a felony. Under general principles of criminal law, however, criminal acts are deemed comparable based on the severity of the criminal conduct, not on the duration of their punishment. See Minn.Stat. § 609.02, subd. 1 (1996) (defining crime as "conduct * * * prohibited by statute"). Moreover, as sentencing is subject to a trial court's discretion, respondent's calculation of potential sentences is speculative and ignores important distinctions between the two charges, particularly a difference in criminal history scores for calculating future sentences, and various disabilities imposed on convicted felons. We conclude the trial court's dismissal of the fifth-degree felony assault charge has a critical impact on the outcome of the prosecution.
Respondent Hanson also asserts the state erred in charging him with a fifth-degree felony assault because his two prior convictions occurred on the same day. Dismissal of a complaint based on the construction of a statute is subject to de novo review. Niska, 499 N.W.2d at 823; see Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).
Minn.Stat. § 609.224, subd. 4(b), provides for an enhanced charge of fifth-degree assault if a party has been convicted within three years of two other assaults, as follows:
When interpreting statutes, the function of the appellate court is to ascertain and effectuate the intention of the legislature, Minn. Stat. § 645.16 (1996), and if a statute is free from ambiguity, the court examines only its plain language. Homart Dev. Co. v. County of Hennepin, 538 N.W.2d 907, 912 (Minn. 1995) (where statute unambiguous, court has "no right to construe or interpret statute's language"); Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (same); see also State v. Gorman, 546 N.W.2d 5, 8 (Minn.1996) (court can "reach beyond the language of a statute only when it is ambiguous"). The fundamental rule of statutory interpretation requires the court "to look first to the specific statutory language and be guided by its natural and most obvious meaning." Heaslip v. Freeman, 511 N.W.2d 21, 22 (Minn.App.1994), review denied (Minn. Feb. 24, 1994); see Ullom v. Independent Sch. Dist. No. 112, Chaska, 515 N.W.2d 615, 617 (Minn.App.1994) (court prohibited from adding words to statute). Further, a court may not read into a statute a provision that the legislature "purposely omits or inadvertently overlooks." Metropolitan Sports Facilities Comm'n v. County of Hennepin, 561 N.W.2d 513, 516-17 (Minn. 1997) (quoting Wallace v. Commissioner of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971)).
We find no ambiguity in the language of Minn.Stat. § 609.224, subd. 4(b). It provides for a felony charge when a party commits a
Appellant strains to demonstrate analogous sequencing requirements in the criminal code that arguably demonstrate ambiguity in this statute. In particular, respondent references Minn.Stat. §§ 609.11 (1996),
The trial court erred in finding a sequencing requirement in Minn.Stat. § 609.224, subd. 4(b), and in dismissing the enhanced fifth-degree felony assault charge against respondent.
(1) committing an act with intent to cause fear in another of immediate bodily harm or death; or
(2) intentionally inflicting or attempting to inflict bodily harm upon another.