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State v. Borg

Supreme Court of Minnesota

July 31, 2013

State of Minnesota, Appellant,
v.
Brett David Borg, Respondent.

Court of Appeals Office of Appellate Courts

Lori Swanson, Attorney General, Saint Paul, Minnesota; and Jan Jude, Mille Lacs County Attorney, Tara C. Ferguson Lopez, Assistant County Attorney, Milaca, Minnesota, for appellant.

David W. Merchant, Chief Appellate Public Defender, Michael W. Kunkel, Assistant State Public Defender, Saint Paul, Minnesota, for respondent.

Kelly O'Neill Moller, Executive Director, Minnesota Alliance on Crime, Saint Paul, Minnesota, for amicus curiae Minnesota Alliance on Crime.

Took no part, Lillehaug, J.

SYLLABUS

1. An order amending the restitution portion of a sentence constitutes a "sentence imposed" within the meaning of Minn. R. Crim. P. 28.04, subd. 1(2), such that the State may appeal the amended sentencing order within 90 days after entry of the order.

2. Because the State filed its notice of appeal within 90 days after the date of the entry of the amended sentencing order, the State's appeal was timely.

Reversed and remanded.

OPINION

PAGE, Justice.

This appeal by appellant State of Minnesota presents the question of whether the State is entitled to appellate review of an order amending the restitution portion of a sentence when the notice of appeal is filed more than 90 days after entry of the order initially imposing sentence, but within 90 days after the entry of the amended sentencing order. In September 2008, a jury found respondent Brett David Borg guilty of third-degree criminal sexual conduct. The trial court sentenced him to 48 months in prison. As part of the initial sentencing order, the court required Borg to pay restitution. Borg challenged the restitution amount, and the court issued an order amending the restitution portion of Borg's sentence on July 24, 2009, more than 90 days after entry of the order imposing Borg's initial sentence. The State appealed the amended sentencing order. The court of appeals dismissed the appeal as untimely because it was not filed within 90 days after the initial imposition of Borg's sentence. We hold that the issuance of an order amending the restitution portion of a sentence constitutes a "sentence imposed" within the plain language of Minn. R. Crim. P. 28.04, subd. 1(2), such that the State had 90 days to appeal the amended sentencing order from the date it was entered. Because the State appealed the amended sentencing order within 90 days, the appeal was timely. Therefore, we reverse and remand.

The facts of this case are undisputed. In September 2008, a jury found Borg guilty of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(d) (2012). On November 7, 2008, Borg was sentenced to 48 months in prison. As part of the sentence, the trial court ordered restitution, but "[held] open" the amount so the parties could present written arguments before it made a final restitution determination.

On November 12, the State requested $1, 601.50 in restitution and $792.50 for costs of prosecution. The court granted the State's request, but noted that Borg had a right to request a hearing to challenge the amount. Minnesota Statutes § 611A.045, subd. 3(b) (2012), provides that "[a]n offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later." Section 611A.045, subdivision 3(b), also provides that a "defendant may not challenge restitution after the 30-day time period has passed."

Borg requested a hearing on December 24, arguing that the court did not have the authority to issue restitution to the victim's parents because they are not considered "victims" within the meaning of Minn. Stat. § 611A.04, subd. 1 (2012). The State objected to the request, arguing that Borg had not timely challenged restitution. The court granted Borg's request, reasoning that he was entitled to the ...


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