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Ford v. State

January 13, 2005

A.C. FORD, PETITIONER, APPELLANT,
v.
STATE OF MINNESOTA, RESPONDENT.



SYLLABUS BY THE COURT

1. The court lacks jurisdiction over appellant's untimely appeal from the order denying his third petition for post-conviction relief.

2. The interest of justice exception to State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), does not apply when the jury communication that forms the basis of appellant's claim appears clearly on the record, appellant had access to his transcript on direct appeal, and appellant failed to raise the issue on direct appeal.

3. Written communications between the judge and jury during jury deliberations did not violate appellant's right to be present under Minn. R. Crim. P. 26.03 when the communication did not concern the law or facts of the case, but related to a non-substantive housekeeping matter.

The opinion of the court was delivered by: Blatz, Chief Justice.

Took no part, Anderson, G. Barry, J.

Affirmed.

Considered and decided by the court en banc without oral argument.

OPINION

A.C. Ford appeals from the post-conviction court's denials of his third and fourth petitions for post-conviction relief. On May 28, 1993, a jury found Ford guilty of first-degree premeditated murder and first-degree murder of a peace officer in connection with the shooting death of Minneapolis Police Officer Jerome Haaf. State v. Ford, 539 N.W.2d 214, 217 (Minn. 1995), cert. denied, 517 U.S. 1125 (1996). Ford was also found guilty of attempted first-degree murder of Gerald Lubarksi, a citizen bystander to the Haaf shooting. Id. On direct appeal, we affirmed Ford's convictions but reversed and remanded on a sentencing issue.*fn1 Id. Subsequently, Ford filed four petitions for post-conviction relief, all of which were denied by the post-conviction court. Ford began to appeal the denials of his first and second petitions for post-conviction relief, but did not perfect the appeals. The post-conviction court denied Ford's third petition on March 27, 2003, but Ford did not file a motion to amend the petition until November 20, 2003. Because there was no pending petition at the time, the post-conviction court treated the November 20 motion as a fourth petition for post-conviction relief (hereinafter "fourth petition"). In the fourth petition, Ford claimed that two communications between the judge and the jury during jury deliberations violated his right to be present at trial. The post-conviction court denied relief without holding an evidentiary hearing. Ford filed a notice of appeal from the denials of his third and fourth petitions on February 25, 2004. We hold that we lack jurisdiction over the untimely appeal from Ford's third petition for post-conviction relief and affirm the denial of Ford's fourth petition for post-conviction relief without an evidentiary hearing.

I.

Before we address the substance of Ford's claims, we must first address whether we have jurisdiction over Ford's appeal from the March 27, 2003 denial of his third petition for post-conviction relief. Ford did not file his notice of appeal until February 25, 2004, almost eleven months after the post-conviction court denied relief. Under Minn. R. Crim. P. 29.03, subd. 3, a petitioner must appeal a final order in a post-conviction proceeding within 60 days after entry of that order. For good cause, one extension of 30 days may be granted. Id.

Ford argues that we should consider his untimely appeal because he alleges that he did not receive notice of the entry of the post-conviction court's order denying his third petition. We have held, however, that the time requirements for the filing of an appeal are jurisdictional. See, e.g., State v. Parker, 278 Minn. 53, 55, 153 N.W.2d 264, 266 (1967). Even when a party has not received notice of the entry of an order, the court has not extended the time for appeal. See Tombs v. Ashworth, 255 Minn. 55, 62, 95 N.W.2d 423, 428 (1959) (holding that failure of the clerk to comply with Rule 77.04 requiring service of notice of entry of judgment does not extend the time for appeal); State v. Scott, 529 N.W.2d 11, 12 (Minn. App.) (stating that the court cannot extend the time to appeal even when defendant did not have notice of entry of the order), rev. denied (Minn. March 14, 1995); accord United States v. Robinson, 361 U.S. 220, 229-30 (1960) (filing of notice of appeal in criminal case after expiration of time prescribed did not confer jurisdiction of the appeal even though the later filing was the result of excusable neglect). Accordingly, we hold that we lack jurisdiction over Ford's untimely appeal from the denial of his third post-conviction petition.

II.

Recognizing that we lack jurisdiction over Ford's appeal of his third petition for post-conviction relief, the remaining issue is whether the post-conviction court erred when it denied, without an evidentiary hearing, Ford's fourth petition for post-conviction relief. Specifically, the fourth petition sets forth his claims that two separate instances of communication between the judge and the jury occurred outside of open court and without Ford's knowledge, consent, or ...


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