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State v. Smith

February 11, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
CHERYL ANN SMITH, ET AL., APPELLANTS.



Meeker County District Court File No. K002434

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Minge, Judge.

SYLLABUS BY THE COURT

1. The proper procedure for a criminal defendant seeking a discretionary "appeal" is to file a petition for discretionary review under Minn. R. Crim. P. 105, not a notice of appeal.

2. Defendants who seek discretionary review of a pretrial order on a legal issue that is dispositive of the case must establish that expedited appellate review under State v. Lothenbach is an inadequate remedy.

The opinion of the court was delivered by: Toussaint, Chief Judge.

Appeal dismissed

SPECIAL TERM OPINION

Appellants filed a petition for discretionary "appeal" of a pretrial order denying their motion to dismiss the complaint charging them with deprivation of parental rights. This court questioned jurisdiction because it appeared that no judgment of conviction had been entered, but we gave appellants an opportunity to show why discretionary review should be granted. Because we conclude that appellants have not shown a compelling reason to grant discretionary review, we deny that request and dismiss the appeal.

FACTS

Appellants Cheryl Ann and Dean Smith have been charged in a criminal complaint with depriving Cheryl Smith's ex-husband, Eldon Raasch, of his parental rights. See Minn. Stat. §á609.26, subd. 1(1) (2000). As the district court found in its order denying appellants' motion to dismiss, appellants are married and are the biological parents of T.D.S.R., who is eight years old.

In 1997, appellants entered into a stipulation with Raasch, who was married to Cheryl Smith at the time of T.D.S.R.'s birth. The stipulation acknowledged Dean Smith as T.D.S.R.'s biological father but awarded Raasch visitation (now termed "parenting time" in the statute) with T.D.S.R. Raasch also has joint legal and physical custody of J.A.R., a child of his marriage to Cheryl Smith.

In May 2002, Raasch reported to police that Cheryl Smith had apparently left the area, taking T.D.S.R. and J.A.R. without notifying school officials. Appellants remained missing, along with the children, until they surrendered to police on June 28, 2002.

Appellants filed a motion in the district court to dismiss the resulting complaint on the grounds that Raasch had only a "contractual right" to visit T.D.S.R., not a "parental right" a violation of which would support a criminal charge under Minn. Stat. §á609.26, subd. 1(1). The district court denied the motion, concluding that Raasch's enforceable right to spend time with T.D.S.R. fell within the definition of "parenting time" in Minn. Stat. §á518.003, subd. 5, and therefore was a "parental right" under Minn. Stat. §á609.26, subd. 1(1). The court relied in part on this court's unpublished opinion in the related civil action, which held that Raasch had an enforceable right to visitation (parenting time), not merely a contractual right. Smith v. Raasch, No. C9-01-951 (Minn. App. Jan. 29, 2002), review denied (Minn. Mar. 19, 2002).

Appellants filed a notice of appeal from the district court order, along with a statement of the case citing Minn. R. Crim. P. 28.02, subd. 3 and Minn. R. Civ. App. P. 103.03(j) as the jurisdictional bases for the appeal. This court questioned jurisdiction because it appeared that the district court order was a pretrial order that was not appealable as of right. The order asked the parties to address whether the appeal should be construed as a petition for discretionary review and ...


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