Appeal from Sentence Imposed or Stayed

Subd. 1. Procedure. The following procedures apply to the appeal of a sentence imposed or stayed under these rules: (1) Notice of Appeal and Briefs. Any party appealing a sentence must file with the clerk of the appellate courts, within 90 days after judgment and sentencing: (a) a notice of appeal; and (b) proof of service of the notice on opposing counsel, the Minnesota Attorney General, the court administrator, and in the case of prosecution appeals the State Public Defender's office. If all transcripts necessary for the appeal have already been transcribed when the appellant files the notice of appeal, the party appealing the sentence must file with the notice of appeal an informal letter brief in the number of copies prescribed by standing order of the appellate court, which must identify itself as a sentencing appeal brief, with proof of service on opposing counsel, the Minnesota Attorney General, and in the case of prosecution appeals the State Public Defender's office. The brief must set out the arguments concerning the illegality or inappropriateness of the sentence. When the transcripts necessary for the appeal have not been transcribed, the appellant must file with the notice of appeal a request for transcripts, and proof of service of the request on opposing counsel, the Minnesota Attorney General, the court administrator, and in the case of prosecution appeals, the State Public Defender's office. Appellant's brief must be identified as a sentencing appeal brief and must be served and filed within 30 days after delivery of the transcript, or for a self-represented party who requests a paper copy of a transcript and notice is provided under subdivision 4, Rule 11.02 of the Rules of Civil Appellate Procedure, 30 days after the date of the notice regarding the availability of the transcript, with 3 days added to the briefing period measured from the date of that notice. The clerk of the appellate courts must not accept a notice of appeal from sentence unless accompanied by the requisite briefs or transcript request and proof of service. A defendant appealing the sentence and the judgment of conviction may combine the two into a single appeal; when this option is selected, the procedures in Rule 28.02 continue to apply. (2) Transmission of Record. Upon receiving a copy of the notice of appeal, the court administrator must immediately forward to the clerk of the appellate courts: (a) a transcript of the sentencing hearing, if any; Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. MINNESOTA COURT RULES CRIMINAL PROCEDURE (b) the sentencing order required in Rule 27.03, subd. 7, with the departure report, if 165 any; (c) the sentencing guidelines worksheet; and (d) any presentence investigation report. (3) Respondent's Brief. Within ten days of service on respondent of appellant's brief, a respondent choosing to respond must serve an informal letter brief on appellant and file with the clerk of the appellate courts the number of copies prescribed by standing order of the appellate court. (4) Reply Brief. Appellant may serve and file a reply brief within five days after service of the respondent's brief. (5) Other Procedures. The following rules govern the below-listed aspects of sentencing appeals: (a) Rule 28.02, subd. 4(2): the contents of the notice of appeal; (b) Rule 28.02, subd. 5: proceedings in forma pauperis; (c) Rule 28.02, subd. 6: stays; (d) Rule 28.02, subd. 7: release of the defendant on appeal; and (e) Rule 28.02, subd. 13: oral argument. Subd. 2. Action on Appeal. The appellate court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the sentencing court's findings of fact. This review exists in addition to all other powers of review. The court may: (a) dismiss or affirm the appeal; (b) vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence; or (c) order further proceedings as it may direct. (Amended effective July 1, 2010; amended effective March 1, 2015; amended effective October 8, 2021.) 28.06 Voluntary Dismissal If the appellant files with the clerk of the appellate courts a notice of voluntary dismissal, with proof of service upon counsel for respondent, the appellate court may dismiss the appeal. If the appellant was the defendant in the district court, the notice must be signed by the appellant, as well as appellant's legal counsel, if the appellant is represented. (Added effective September 1, 2011.) 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 Minnesota Constitution, article VI, section 2, and the postconviction remedy, Minnesota Statutes, Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. CRIMINAL PROCEDURE 166 MINNESOTA COURT RULES chapter 590. The statutory authorization for the extraordinary writs is contained in Minnesota Statutes, section 480A.06, subdivision 5, and chapters 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 Minnesota Statutes, section 152.18, subdivision 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, 595 N.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 (Transcripts 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 ten days as otherwise provided by Minn. R. Civ. App. P. 110.02, subd. 1. The provisions of Minn. R. Civ. App. P. 110 and 111 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 a party disputes the accuracy of the transcript of a video or audio exhibit, the party may address any discrepancy when referring to the transcript in a brief. 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 appeal the suppression part of the order under Rule 28.04, subd. 1(1). State v. Brown, 317 N.W.2d 714 (Minn. 1982). In response to State v. Lee, 706 N.W.2d 491 (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 three days for service by mail are added under Rule 34.04 Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 167 CRIMINAL PROCEDURE MINNESOTA COURT RULES 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 Minnesota Statutes, section 244.11.