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Paone v. State

April 08, 2003

JUSTIN MARSHALL PAONE, PETITIONER, APPELLANT,
v.
STATE OF MINNESOTA, RESPONDENT.



Anoka County District Court File No. K1-99-100

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.

SYLLABUS BY THE COURT

When a direct appeal in a criminal case has been filed but then dismissed by agreement of the parties before consideration on the merits, the defendant has not exhausted his right to court-appointed representation in a subsequent post-conviction proceeding.

Reversed and Remanded

OPINION

On appeal from the denial of his post-conviction petition, appellant claims he was entitled to the representation of court-appointed counsel at the post-conviction proceeding. We agree, and reverse and remand.

FACTS

On September 27, 1998, appellant drove his vehicle at a speed in excess of 80 miles per hour, ran a red light in the city of Coon Rapids, and collided with two other vehicles. As a result of the collision, one person died, two other people were severely injured, and three other people suffered injuries. According to the evidence, appellant drove at this high speed because he was fleeing a group of young men with whom he had previously had an altercation.

Appellant pleaded guilty to one count of criminal vehicular homicide and two counts of criminal vehicular operation resulting in great bodily harm on April 19, 1999. Appellant was sentenced on June 23, 1999 to 54 months on the criminal-vehicular-homicide count and 18 months each on the criminal-vehicular-operation counts, for a total of 90 months. The sentences were executed consecutively. On September 21, 1999, with assistance from the public defender's office, appellant filed a direct appeal. Approximately two months later, the appeal was dismissed by stipulation of the parties. No briefs were submitted. The order dismissing the appeal does not specify the parties' reason for the stipulation.

On April 10, 2002, appellant filed a pro se petition for post-conviction relief, primarily challenging his sentence. The post-conviction court (the same judge who sentenced appellant) dismissed this petition without a hearing on May 16, 2002.

On July 12, 2002, appellant filed a pro se notice of appeal, and requested that this court appoint a public defender to represent him. By an order dated August 15, 2002, this court denied that request as beyond its authority, but referred appellant to the public defender's office by sending it a copy of the order. Shortly thereafter, a special assistant state public defender was appointed to represent appellant and submitted the brief in this appeal.

Appellant asked this court to determine that he was entitled to representation by counsel throughout the post-conviction proceedings.

ISSUE

Did appellant have a right to representation for his ...


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