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Rivera v. State

September 2, 2003

JOSE A. RIVERA, JR., PETITIONER, APPELLANT,
v.
STATE OF MINNESOTA, RESPONDENT.



Hennepin County District Court File No. 93085826

Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

The opinion of the court was delivered by: Peterson, Judge

Affirmed

UNPUBLISHED OPINION

In this appeal from an order denying a post-conviction petition challenging his aggravated-robbery and kidnapping convictions and sentences, appellant Jose Antonio Rivera, Jr., argues that because aggravated robbery was the predicate crime committed during the kidnapping, he could not be separately convicted of and sentenced for the kidnapping. We affirm.

FACTS

On September 26, 1993, at about 12:30 a.m., Rivera, wearing a mask and armed with a handgun, entered a fast-food restaurant. After ordering the restaurant's employees to the floor, Rivera directed one of the employees to open the safe. Rivera removed the cash from the safe and then directed the employees to enter a cooler. Rivera rolled a cart in front of the cooler door and then fled. Throughout the robbery, Rivera kept his gun pointed at the employees.

Rivera was charged by amended complaint with one count each of aggravated robbery and kidnapping. A jury found him guilty as charged. The district court sentenced Rivera to an executed term of 68 months in prison for the aggravated-robbery conviction and a concurrent, executed term of 78 months in prison for the kidnapping conviction.

Rivera filed a direct appeal, challenging the convictions. This court affirmed. State v. Rivera, No. C8-94-1830 (Minn. App. Oct. 24, 1995), review denied (Minn. Dec. 20, 1995). On December 10, 2002, Rivera filed a petition for post-conviction relief, arguing that he should only have been sentenced for the aggravated-robbery conviction, that his sentence constituted an impermissible departure from the guidelines, and raising several constitutional claims. The district court denied Rivera's petition. The only issue raised by Rivera in this appeal from the order denying post-conviction relief is whether the district court erred in sentencing him for both the aggravated-robbery and kidnapping convictions.

DECISION

This court reviews a post-conviction court's decision only to determine whether the evidence is sufficient to sustain the post-conviction court's findings. State v. Doppler, 590 N.W.2d 627, 632 (Minn. 1999). We will not reverse a post-conviction court's decision absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

Once a direct appeal has been taken, we will not consider [upon a subsequent petition for post-conviction relief] matters that were raised on direct appeal or claims known at that time but not raised. The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not "deliberately and inexcusably" fail to raise on direct appeal. The exceptions are limited to the extent that fairness requires consideration of such a claim.

Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) (citations omitted).

Rivera argues that Minn. Stat. ยงยง 609.035,.04 (1992), bar the kidnapping conviction and sentence because the kidnapping arose out of the same behavioral incident as the aggravated robbery and the kidnapping was necessarily proved if the aggravated robbery was proved. The district court properly concluded that these issues were known or should have been known ...


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