The court of appeals does not have jurisdiction over a prosecuting attorney's appeal of a pretrial order if the prosecuting attorney has failed to serve notice of appeal upon the State Public Defender, as required by Minnesota Rules of Criminal Procedure 28.04, subd. 2(2).
The opinion of the court was delivered by: Anderson, Russell A., Justice.
Vacated, reversed and remanded to district court.
Heard, considered and decided by the court en banc.
In this case, we conclude that failure to serve notice of appeal upon the State Public Defender, as required by Minnesota Rules of Criminal Procedure 28.04, subd. 2 (2), deprives the court of appeals of jurisdiction over a prosecuting attorney's pretrial appeal. We reverse the decision of the court of appeals to the contrary and remand to the district court for entry of judgment dismissing the complaint.
Appellant Kevin Ross Barrett was charged on June 17, 2003 with fifth-degree possession of a controlled substance, as the result of methamphetamine found by a police officer during a search of Barrett's car in Isanti County. Following an omnibus hearing, the district court concluded that the search of the car was unlawful and granted the motion of Barrett's public defender to suppress the methamphetamine as evidence, and to dismiss the charge.
The prosecuting attorney appealed the district court's pretrial order, but failed to serve the notice of appeal upon the State Public Defender, as required by Minn. R. Crim. P. 28.04, subd. 2(2). The prosecutor served the notice of appeal by mail upon Barrett's public defender at her office in Isanti County, but before the district court issued its order, Barrett's public defender had moved from her Isanti County office to the Washington County Public Defender's Office. She did not receive the mailed notice of appeal, nor was she aware of the district court's order.*fn1 Unaware of the prosecuting attorney's appeal, neither Barrett, his public defender nor the State Public Defender filed an appellate brief and, by failing to timely file a brief, Barrett forfeited the right to oral argument. See Minn. R. Crim. P. 28.02, subd. 13(1); 28.04, subd. 2(4). In an unpublished opinion, the court of appeals reversed the district court. State v. Barrett, 2004 WL1445589 (Minn. App. June 29, 2004).
After learning of the court of appeals decision, the State Public Defender on Barrett's behalf filed a motion with the court of appeals to vacate the opinion and dismiss the appeal based on failure to serve the State Public Defender with the notice of appeal. The court of appeals denied the motion. We granted Barrett's petition for review of both the order denying the motion and the decision reversing the district court.
Because jurisdiction is a question of law, our standard of review is de novo. In re Welfare of J.R., Jr., 655 N.W.2d 1, 2 (Minn. 2003). To determine whether failure to serve notice of appeal upon the State Public Defender deprives the court of appeals of jurisdiction, we first look to Minn. R. Crim. P. 28.04, subd. 2(2), which allows prosecuting attorneys a limited right of appeal from a pretrial order. We construe and interpret denovo our rules of procedure. State v. Hugger, 640 N.W.2d 619, 621 (Minn. 2002).
Under this rule, a prosecution appeal from a pretrial order must be taken within five days after the prosecutor is served with notice of entry of the order or is notified in court of the order, whichever occurs first. Minn. R. Crim. P. 28.04, subd. 2(8). Upon oral notice that the prosecutor intends to appeal, the district court must stay proceedings for five days to allow time to perfect the appeal. Id., subd. 2(1). To appeal, the prosecuting attorney must file with the clerk of appellate courts a notice of appeal, a statement of the case, and a written request for transcripts, all of which "shall have attached at the time of filing, proof of service on the defendant or defense counsel, the State Public Defender, the attorney general for the State of Minnesota, and the clerk of the trial court in which the pretrial order is entered." Id., subd. 2(2).
Rule 28.04, subdivision 2, lists certain procedural shortcomings that may not be fatal to the prosecutor's pretrial appeal:
Failure to serve or file the statement of the case, to request the transcript, to file a copy of such request, or to file proof of service does not deprive the Court of Appeals of jurisdiction over the prosecuting attorney's appeal, but it is ground only for such action as the ...