Rule 28.02 – Appeal by Defendant

May 13, 2021 | Criminal Procedure, Minnesota

Subd. 9. Transcripts and Transmission of the Transcript and Record.

(a) Transcripts of Proceedings. To the extent applicable, the Minnesota Rules of Civil Appellate Procedure govern preparation of the transcript of the proceedings and the transmission of the transcript and record to the Court of Appeals, except that the appellant must order the transcript, and any requested paper copies, within 30 days after filing of the notice of appeal unless the time is extended by the appellate court for good cause. Any other party may request a paper copy of the transcript as provided in Minnesota Rule of Civil Appellate Procedure 110.02, subd. 2(b), within 10 days of the filing of either the transcript request or the court reporter’s acknowledgement and acceptance of the transcript request, whichever is later. The transcript must be filed with the court administrator and a copy transmitted promptly to the attorney for each party.
(b) Transcripts of Audio or Video Exhibits. If transcript of video or audio exhibits is made part of the district court record, it becomes part of the record on appeal. If no such transcript exists, a transcript need not be prepared unless expressly requested by the appellant or the respondent. If a transcript of an exhibit is requested, the court reporter may prepare the transcript. In the alternative, on the written request of the court reporter, the party who offered the exhibit must provide a transcript to the court reporter within 30 days of the date of the request. The court reporter may correct any transcript prepared by a party, and must include the transcript of the exhibit with all other transcripts filed and provided for the appeal. The court reporter need not certify the correctness of the transcript of an audio or video exhibit.
(c) Partial Transcripts. If the appellant does not order the entire transcript of the proceedings, then within the 30 days permitted to order it, the appellant must file with the clerk of the appellate courts and serve on the court administrator and respondent a description of the parts of the transcript the appellant intends to include in the record, and a statement of the issues the appellant intends to present on appeal. If the respondent deems a transcript of other parts of the proceedings necessary, the respondent must order from the reporter, within 10 days of service of the description or notification of no transcript, those other parts deemed necessary, or serve and file a motion in the district court for an order requiring the appellant to do so.

Minn. R. Crim. P. 28.02

Amended effective March 1, 2015; amended effective January 11, 2019; amended effective March 1, 2020.

Comment-Rule 28

Under Rule 28.02, subd. 1 the defendant may obtain review of lower court orders and rulings only by appeal except as may be provided in the case of the extraordinary writ authorized by Minn. Const. Art. VI, § 2, and the postconviction remedy, Minn. Stat. ch. 590. The statutory authorization for the extraordinary writs is contained in Minn. Stat. § 480A.06, subd. 5 andchs. 586 (Mandamus), 589 (Habeas Corpus), and 606 (Certiorari). The procedure for obtaining writs of mandamus or prohibition appears in Minn. R Civ. App. P. 120 and 121.

A defendant cannot as a matter of right appeal from a stay of adjudication entered under Minn. Stat. § 152.18, subd. 1, which requires the consent of the defendant. However, a defendant may seek discretionary review of such a stay under Rule 28.02, subd. 3. State v. Verschelde, 595N.W.2d 192 (Minn. 1999).

Rule 28.02, subd. 3 (Discretionary Review) is taken from Minn. R. Civ. App. P. 105, which sets forth the procedure to be followed by a defendant in seeking permission to proceed with an appeal from an order not otherwise appealable. A defendant seeking to appeal from a sentence imposed or stayed in a misdemeanor or gross misdemeanor case would have to proceed under this rule.

Rule 28.02, subd. 4(4) establishes a procedure by which a defendant who has initiated a direct appeal may nonetheless pursue postconviction relief. Certain types of claims are better suited to the taking of testimony and fact-finding possible in the district court, and defendants are encouraged to bring such claims, such as ineffective assistance of counsel where explanation of the attorney’s decision is necessary, through postconviction proceedings rather than through direct appeal. See Black v. State, 560 N. W. 2d 83, 85 n. 1 (Minn. 1997). The order staying the appeal may provide for a time limit within which to file the postconviction proceeding.

Under Rule 28.02, subd. 9 (Transcript and Transmission of the Transcript and Record), the transcript must be ordered within 30 days after filing of the notice of appeal rather than within 10 days as otherwise provided by Minn. R Civ. App. P. 110.02, subd. 1. The provisions of Minn. R. Civ. App. P. 110 and HI concerning the content and transmission of the record and transcripts apply to criminal appeals under Rule 28. Therefore, except as provided in Rule 28.02, subd. 5(12), it is necessary in a criminal appeal on ordering the transcript to serve and file a transcript certificate as required by Minn. R Civ. App. P. 110.02, subd 2. It is assumed that any transcripts of audio or video exhibits offered in the district court that are prepared on request would be limited to the portion of the audio or video exhibit that was admitted as evidence. If either a party disputes the accuracy of the transcript of a videotape or audiotape exhibit, the party may address am discrepancy when referring to the transcript in a brie.

To the extent that an order granting a defendant a new trial also suppresses evidence, it will be viewed as a pretrial order concerning the retrial and the prosecutor may appealthe suppression part of the order under Rule 28.04, subd. 1(1). Statev. Brown, 317 N.W.2d 714 (Minn. 1982). In response to State v. Lee, 706N.W.2d491 (Minn. 2005), Rule 28.04, subd. 1(4), was revised to expressly permit a prosecutor to appeal a stay of adjudication ordered by the district court over the objection of the prosecutor.

A timely, good-faith motion by the prosecutor for clarification or rehearing of an appealable order extends the time to appeal from that order. State v. Wollan, 303 N. W.2d 253 (Minn. 1981). Originally under Rules 28.04, subd. 2(2) and (8) the prosecutor had five days from entry of an appealable pretrial order to perfect the appeal. It was possible for this short time limit to expire before the prosecutor received actual notice of the order sought to be appealed. These rules as revised eliminate this unfairness and assure that notice of the pretrial order will be served on or given to the prosecutor before the five-day time limit begins to run. In State v. Hugger, 640 N. W. 2d 619 (Minn. 2002), the court held that in computing the five-day time period within which an appeal must be taken under Rule 28.04, subd. 2(8), intermediate Saturdays, Sundays, and legal holidays are excluded under Rule 34.01 before the additional 3 days for service by mail are added under Rule 34.04.

Under Rule 28.04, subd. 2(2), failure to timely serve the notice of appeal on the State Public Defender is a jurisdictional defect requiring dismissal of the appeal. State v. Barrett, 694 N. W.2d 783 (Minn. 2005).

Absent special circumstances, failure of the prosecutor to file the appellant’s brief within the 15 days as provided by Rule 28.04, subd. 2(3) will result in dismissal of the appeal. State v. Schroeder, 292 N. W.2d 758 (Minn. 1980).

Rule 28.05, subd. 2 (Action on Appeal) is taken from Minn. Stat. § 244.11.