April 17, 1964.
Criminal law — dismissal of appeal to district court — remand to municipal court for execution of sentence — propriety.
Appeal by Booker T. Parker from an order of the Ramsey County District Court, Robert V. Rensch, Judge, dismissing his appeal from a judgment of the municipal court of St. Paul whereby he was convicted of disorderly conduct. Affirmed.
John A. Cochrane, for appellant.
Donald L. Lais, Corporation Counsel, and Theodore J. Collins and Daniel A. Klas, Assistant Corporation Counsel, for respondent.
Defendant appeals from an order dismissing his appeal to the district court following his conviction in the municipal court of St. Paul upon a charge of disorderly conduct. The order was entered on April 11, 1963, and a motion by defendant to vacate that order was heard and denied on April 15, 1963.
The order of dismissal was based upon defendant's failure to prosecute his appeal. A review of the record before us persuasively indicates that there was no abuse of discretion in denying defendant's motion to reinstate. The facts, as revealed by an affidavit of the assignment clerk, unequivocally establish that the trial was set for a day certain; that defendant received ample prior notice thereof; and that he made no effort to request a resetting or to secure a continuance. His contrary assertions are refuted by the affidavit and we are of the opinion that the court was justified in finding his explanation for nonappearance insufficient to require a reinstatement of the appeal.
Although the court, following dismissal, could have proceeded in accordance with Minn. St. 633.24, the procedure there authorized is permissive. Since the court did not choose to order defendant's arrest and award sentence against him, it was proper to remand the cause to the municipal court for execution of the sentence previously imposed. See, State ex rel. Shetsky v. Utecht, 228 Minn. 44, 36 N.W.2d 126, 6 A.L.R. 2d 988.