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State v. McKinney

Court of Appeals of Minnesota

December 9, 2013

State of Minnesota, Appellant,
v.
Marcus DeAngelo McKinney, Respondent.

Ramsey County District Court File No. 62-CR-13-677

Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Laura Rosenthal, Assistant County Attorney, St. Paul, Minnesota (for appellant)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, Erik I. Withall, Assistant Public Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Chutich, Judge.

SYLLABUS

If the state files a sentencing appeal pursuant to rule 28.05 of the Minnesota Rules of Criminal Procedure, the state's failure to serve the notice of appeal on the state public defender's office in a timely manner requires dismissal of the appeal.

SPECIAL TERM OPINION

JOHNSON, Judge.

Marcus DeAngelo McKinney pleaded guilty to domestic assault by strangulation and received a stayed sentence of 21 months of imprisonment. The state appealed from the sentence. McKinney moves to dismiss the appeal on the ground that it is untimely. We conclude that the state failed to timely serve the notice of appeal on the state public defender and, therefore, grant the motion to dismiss the appeal.

The state charged McKinney with three felony offenses. The state and McKinney entered into a plea agreement by which McKinney pleaded guilty to domestic assault by strangulation in exchange for the dismissal of the other two counts. At sentencing, the state sought an executed sentence of 24 months of imprisonment based on four criminal-history points. But the district court found that McKinney has only three criminal-history points, determined that a sentence of 21 months was appropriate, and stayed execution of the sentence. The state seeks appellate review of the district court's sentence pursuant to rule 28.05, subdivision 1(1), of the Minnesota Rules of Criminal Procedure.

McKinney moves to dismiss the state's appeal on the ground that it is untimely. His argument has three parts: (1) the state failed to timely file the notice of appeal; (2) the state failed to timely serve the notice of appeal on the state public defender; and (3) the state failed to timely file an affidavit of service of the notice of appeal on the state public defender. The state opposes the motion.

DECISION

In felony cases, the state may appeal as of right from a district court's imposition or stay of a sentence. Minn. R. Crim. P. 28.04, subd. 1(2). The procedures for a sentencing appeal are set forth in rule 28.05 of the Minnesota Rules of Criminal Procedure, which applies to sentencing appeals by either the state or by a defendant. In a sentencing appeal governed by rule 28.05, the appellant

must file with the clerk of the appellate courts, within 90 days after ...

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