Rule 28.02 - Appeal by DefendantSubd. 1.Review by Appeal. A defendant may obtain Court of Appeals review of district court orders and rulings only as these rules permit, or as permitted by the law for the issuance of the extraordinary writs and for the Post-Conviction Remedy. Writs of error are abolished.Subd. 2.Appeal as of Right.(1) Final Judgment and Postconviction Appeal. A defendant may appeal as of right from any adverse final judgment, or from an order denying in whole or in part a petition for postconviction relief under Minn. Stat. ch. 590. A final judgment within the meaning of these rules occurs when the district court enters a judgment of conviction and imposes or stays a sentence.(2) Orders. A defendant cannot appeal until the district court enters an adverse final judgment, but may appeal: (a) from an order refusing or imposing conditions of release; or(b) in felony and gross misdemeanor cases from an order:1. granting a new trial, and the defendant claims that the district court should have entered a final judgment in the defendant's favor;2. not on the defendant's motion, finding the defendant incompetent to stand trial; or3. denying a motion to dismiss a complaint following a mistrial, and the defendant claims retrial would violate double jeopardy.(3) Sentences. A defendant may appeal as of right from any sentence imposed or stayed in a felony case. Rule 28.02, subd. 3 governs sentencing appeals in non-felony cases.Subd. 3.Discretionary Review. In the interests of justice and on petition of the defendant, the Court of Appeals may allow an appeal from an order not otherwise appealable, but not from an order made during trial. The petition must be served and filed within 30 days after entry of the order appealed. Minnesota Rule of Civil Appellate Procedure 105 governs the procedure for the appeal.Subd. 4.Procedure for Appeals Other than Sentencing Appeals.(1) Service and Filing. A defendant appeals by filing a notice of appeal with the clerk of the appellate courts with proof of service on the prosecutor, the Minnesota Attorney General, and the court administrator for the county in which the judgment or order appealed from is entered. The defendant need not file the statement of the case provided for in Minnesota Rule of Civil Appellate Procedure 133.03 unless the appellate court directs otherwise. The defendant does not have to post bond to appeal. The defendant's failure to take any step other than timely filing the notice of appeal does not affect the validity of the appeal, but permits action the Court of Appeals deems appropriate, including dismissal.(2) Contents of Notice of Appeal. The notice of appeal must specify: (a) the party or parties taking the appeal;(b) the names, addresses, and telephone numbers of all counsel and whom they represent;(c) the judgment or order from which appeal is taken; and(d) that the appeal is to the Court of Appeals.(3) Time for Taking an Appeal. (a) In felony and gross misdemeanor cases, an appeal by the defendant must be filed within 90 days after final judgment or entry of the order being appealed. Other charges that were joined for prosecution with the felony or gross misdemeanor may be included in the appeal.(b) In misdemeanor cases, an appeal by the defendant must be filed within 30 days after final judgment or entry of the order being appealed.(c) In postconviction relief cases, an appeal by the defendant from an order denying a petition for postconviction relief must be filed within 60 days after entry of the order.(d) A notice of appeal filed after the announcement of a decision or order - but before sentencing or entry of judgment or order - must be treated as filed after, but on the same day as sentencing or entry of judgment.(e) A timely motion to vacate the judgment, for judgment of acquittal, or for a new trial tolls the time for an appeal from a final judgment until the entry of an order denying the motion, and the order denying the motion may be reviewed in the appeal from the judgment.(f) A judgment or order is entered under these appellate rules when the court administrator enters it in the record.(g) For good cause, the district court or a judge of the Court of Appeals may, before or after the time for appeal has expired, with or without motion and notice, extend the time for filing a notice of appeal up to 30 days from the expiration of the time prescribed by these rules.(4) Stay of Appeal for Postconviction Proceedings. If, after filing a notice of appeal, a defendant determines that a petition for postconviction relief is appropriate, the defendant may file a motion to stay the appeal for postconviction proceedings.Subd. 5.Proceeding in Forma Pauperis. A defendant who wishes to proceed in forma pauperis under this rule must follow this process: (1) An indigent defendant wanting to appeal or to obtain postconviction relief must apply to the State Public Defender's office.(2) The State Public Defender's office must promptly send the applicant a financial inquiry form, preliminary questionnaire form, and other forms as deemed appropriate.(3) The applicant must completely fill out these forms, sign them, and have his or her signature notarized if indicated.(4) The applicant must then return these completed documents to the State Public Defender's office for further processing.(5) The State Public Defender's office must determine if the applicant is financially and otherwise eligible for representation. If the applicant qualifies, then the State Public Defender's office must provide representation in felony cases regarding a judicial review or an evaluation of the merits of a judicial review of the case, and may so represent the applicant in misdemeanor or gross misdemeanor cases. Upon the administrative determination by the State Public Defender's office that it will represent an applicant for a judicial review or an evaluation of the merits of a judicial review of the case, the office is automatically appointed without order of the court. The State Public Defender's office must notify the applicant of its decision on representation and advise the applicant of any problem relative to the applicant's qualifications to obtain its services. Any applicant who contests a decision of the State Public Defender's office that the applicant does not qualify for representation may apply to the Minnesota Supreme Court for relief.
(6) If the court receives a request for transcripts necessary for judicial review or other efforts to have cases reviewed from a defendant who does not have counsel, the court must refer the request to the State Public Defender's office for processing as in paragraphs (2) through (5) above.(7) The State Public Defender's office's obligation to order and pay for transcripts for indigent defendants represented by private counsel on appeal is limited to the types of appeals or proceedings for which the State Public Defender's office is required to provide representation. If the court receives a request for transcripts made by an indigent defendant represented by private counsel, the court must submit the request to the State Public Defender's office for processing as follows:a. The State Public Defender's office must determine eligibility of the applicant as in paragraphs (2) through (5) above.b. If the defendant qualifies, he or she may request the State Public Defender to order all parts of the trial transcript necessary for effective appellate review. The State Public Defender's office must order and pay for these transcripts.c. If a dispute arises about the parts of the trial transcript necessary for effective appellate review, the defendant or the State Public Defender's office may make a motion for resolution of the matter to the appropriate court.d. The State Public Defender's office must provide the transcript to the indigent defendant's attorney for use in the direct appeal. The attorney must sign a receipt for the transcript agreeing to return it to the State Public Defender's office after the appeal process.(8) All court administrators must furnish the State Public Defender's office without charge copies of any documents relevant to the case.(9) All fees - including appeal fees, hearing fees, or filing fees - ordinarily charged by the clerk of the appellate courts or court administrators are waived when the State Public Defender's office, or other public defender's office, represents the defendant. The court must also waive these fees on a sufficient showing by any other attorney that the defendant cannot pay them.(10) The State Public Defender's office must be appointed to represent all eligible indigent defendants in all appeal or postconviction cases as provided above, regardless of the county where the prosecution occurred, unless the Supreme Court directs otherwise.(11) In appeal cases and postconviction cases, the State of Minnesota must bear the cost of transcripts and other necessary expenses from funds available to the State Public Defender's office, if approved by that office, regardless of where the prosecution occurred.(12) For defendants represented on appeal by the State Public Defender's office, Minnesota Rule of Civil Appellate Procedure 110.02, subd. 2, concerning the transcript certificate, does not apply. In these cases, the State Public Defender's office on ordering the transcript must transmit a copy of the written request for transcript to the court administrator, the clerk of the appellate courts, and the prosecutor. The court reporter must promptly acknowledge its receipt and indicate acceptance in writing, with copies to the court administrator, the clerk of the appellate courts, the State Public Defender's office, and the prosecutor. In so doing, the court reporter must state the estimated number of pages of the transcript and the estimated completion date. That date cannot exceed 60 days, but for guilty plea and sentencing transcripts, it cannot exceed 30 days. Upon delivery of the transcript, the reporter must file with the clerk of the appellate courts a certificate evidencing the date and manner of delivery.
(13) A defendant may proceed pro se on appeal only after the State Public Defender's office has first had the opportunity to file a brief on the defendant's behalf. When that office files and serves the brief, it must also provide a copy of the brief to the defendant. If the defendant then chooses to proceed pro se on appeal or to file a supplemental brief, the defendant must so notify the State Public Defender's office.(14) Upon receiving notice under paragraph (13) that the defendant has chosen to proceed pro se on appeal or to file a supplemental brief, the State Public Defender's office must confer with the defendant about the reasons for choosing to do so and advise the defendant concerning the consequences of that choice.(15) To proceed pro se on appeal following consultation, the defendant must sign and return to the State Public Defender's office a detailed waiver of counsel as provided by that office for the particular case.(16) If the State Public Defender's office believes, after consultation, that the defendant may not be competent to waive counsel it must assist the defendant in seeking an order from the district court determining the defendant's competency or incompetency.(17) The court must consider the brief filed by the State Public Defender's office on the defendant's behalf. A defendant, whether or not choosing to proceed pro se, may also file with the court a supplemental brief. The supplemental brief must be filed within 30 days after the State Public Defender's office files its initial brief.(18) If a defendant requests a copy of the transcript, the State Public Defender's office must confer with the defendant concerning the need for the transcript. If the defendant still requests a copy of it, one must be provided to the defendant temporarily.(19) Upon receiving the transcript, the defendant must sign a receipt for it including an agreement not to make it available to other persons and to return the transcript to the State Public Defender's office when the time to file any supplemental brief expires.(20) The transcript remains the property of the State Public Defender's office and must be returned upon expiration of the time to file any supplemental brief. Upon return of the transcript, the State Public Defender's office must provide the defendant with a copy of a signed receipt for it. The State Public Defender's office must promptly file the receipt with the clerk of the appellate courts, and until that occurs, the clerk will not accept the supplemental brief for filing. Subd. 6.Stay. When a defendant files an appeal, this does not stay execution of the judgment or sentence unless a district court judge or a judge of the appellate court grants a stay.Subd. 7.Release of Defendant.(1) Conditions of Release. If a defendant appeals, and a court grants a stay, Rule 6.02, subds. 1 and 2, govern the conditions for defendant's release and the factors determining the conditions of release, except as provided by this rule. The court must also take into consideration that the defendant may be compelled to serve the sentence imposed before the appellate court decides the case.(2) Burden of Proof. If a defendant was sentenced to incarceration, a court must not grant release pending appeal from a judgment of conviction unless the defendant establishes to the court's satisfaction that: (a) the appeal is not frivolous or taken for delay; and(b) no substantial risk exists that the defendant:(i) will fail to appear to answer the judgment following the conclusion of the appellate proceedings;(ii) is likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice.(3) Application for Release Pending Appeal. A defendant must first apply to the district court for release pending appeal. If the district court denies release pending appeal or imposes conditions of release, the court must state on the record the reasons for the action taken. If the defendant appeals and has previously applied to the district court for release pending appeal, the defendant may file a motion for release, or for modification of the conditions of release, to the applicable appellate court or to a judge or justice of that court. The motion must be determined promptly upon such documents and portions of the record as the parties may present, and after reasonable notice to the prosecutor. The appellate court or one of its judges or justices may order the defendant's release pending the motion's disposition.
(4) Credit for Time Spent in Custody. All time the defendant spends in custody pending an appeal must be deducted from the sentence the district court imposed.(5) When a defendant obtains release pending appeal under this rule, the prosecution must make reasonable good faith efforts as soon as possible to advise the victim of the defendant's release.Subd. 8.Record on Appeal. The record on appeal consists of the documents filed in the district court, the offered exhibits, and the transcript of the proceedings, if any. In lieu of the record as defined by this rule, the parties may - within 60 days after filing of the notice of appeal - prepare, sign, and file with the court administrator a statement of the case showing how the issues presented by the appeal arose and how the district court decided them, stating only the claims and facts essential to a decision. The district court, after making any additions it considers necessary to present the issues raised by the appeal, may approve the statement, which will then be the record on appeal. Any recitation of the essential facts of the case, conclusions of law, and any relevant district court memorandum of law must be included with the record.
An appellant who intends to proceed on appeal with a statement of the case under this rule rather than by obtaining a transcript, or without either a statement of the case or transcript, must serve notice of intent to do so on respondent and the court administrator and also file the notice with the clerk of the appellate courts, all within the time provided for ordering a transcript.
Subd. 9.Transcripts and Transmission of the Transcript and Record.(a) Transcripts of the Proceedings. To the extent applicable, the Minnesota Rules of Civil Appellate Procedure govern preparation of the transcript of the proceedings and the transmission of the transcript and record to the Court of Appeals, except that the appellant must order the transcript within 30 days after filing of the notice of appeal unless the time is extended by the appellate court for good cause. The transcript must be filed with the court administrator and, unless the court reporter is required by Rule 110.02, subdivision 2, of the Rules of Civil Appellate Procedure to provide notice to a self-represented party regarding the availability of a paper copy, an electronic copy must be transmitted promptly to the attorney for each party.(b) Transcripts of Audio or Video Exhibits. If a transcript of video or audio exhibit is made part of the district court record, it becomes part of the record on appeal. If no such transcript exists, a transcript need not be prepared unless expressly requested by the appellant or the respondent. If a transcript of an exhibit is requested, the court reporter may prepare the transcript. In the alternative, on the written request of the court reporter, the party who offered the exhibit must provide a transcript to the court reporter within 30 days of the date of the request. The court reporter may correct any transcript prepared by a party, and must include the transcript of the exhibit with all other transcripts filed and provided for the appeal. The court reporter need not certify the correctness of the transcript of an audio or video exhibit.(c) Partial Transcripts. If the appellant does not order the entire transcript of the proceedings, then within the 30 days permitted to order it, the appellant must file with the clerk of the appellate courts and serve on the court administrator and respondent a description of the parts of the transcript the appellant intends to include in the record, and a statement of the issues the appellant intends to present on appeal. If the respondent deems a transcript of other parts of the proceedings necessary, the respondent must order from the reporter, within 10 days of service of the description or notification of no transcript, those other parts deemed necessary, or serve and file a motion in the district court for an order requiring the appellant to do so.Subd. 10.Briefs. The appellant must serve and file the appellant's brief within 60 days after the court reporter delivers the transcript, or after the filing of the district court's approval of the statement under subd. 8 of this rule or under Minnesota Rule of Civil Appellate Procedure 110.03. If a party is self-represented and requests a paper copy of the transcript, 3 days are added to the briefing period, which is measured from the date the court reporter provides that party notice regarding the availability of the transcript from the court administrator's office. In all other cases, if the parties obtain the transcript before the appeal, or if the record on appeal does not include a transcript, the appellant must serve and file the appellant's brief within 60 days after the appellant filed the notice of appeal. The respondent must serve and file the respondent's brief within 45 days after service of the appellant's brief. The appellant may serve and file a reply brief within 15 days after service of the respondent's brief. In all other respects, the Minnesota Rules of Civil Appellate Procedure govern, to the extent applicable, the form and filing of briefs, but the appellant's brief must contain a procedural history.Subd. 11.Scope of Review. On appeal from a judgment, the court may review any order or ruling of the district court or any other matter, as the interests of justice may require.Subd. 12.Action on Appeal. If the appellate court affirms the judgment, it must direct execution of the sentence as pronounced by the district court or as modified by the appellate court under Rule 28.05, subd. 2. If it reverses the judgment, it must direct: (b) vacation of the conviction and entry of a judgment of acquittal; or(c) reduction of the conviction to a lesser included offense or to an offense of lesser degree, as the case may require. If the court directs a reduction of the conviction, it must remand for resentencing.Subd. 13.Oral Argument.(1) Oral argument must be held in every case if either party serves on adverse counsel and files with the clerk of the appellate courts a request for it when the party serves and files its initial brief, unless: 1. the respondent forfeits oral argument under Minnesota Rule of Civil Appellate Procedure 134.01(b) for failure to timely file a brief, and appellant has either waived oral argument or not requested it;2. the parties waive oral argument by joint agreement under Minnesota Rule of Civil Appellate Procedure 134.06; or3. the appellate court determines that oral argument is unnecessary because: a. the dispositive issue or set of issues has been authoritatively settled; or b. the briefs and record adequately present the facts and legal arguments, and the decisional process would not be significantly aided by oral argument. The clerk of the appellate court must notify the parties when oral argument will not be allowed under this provision. Any party so notified may request the court to reconsider its decision by serving on all other parties and filing with the clerk of the appellate courts a written request for reconsideration within 5 days of receipt of the notification that no oral argument will be allowed. If, under this provision, the court does not allow oral argument, the case must be considered as submitted to the court when the clerk of the appellate courts notifies the parties that oral argument has been denied.
The Court of Appeals may direct presentation of oral argument in any case.
(2) Except in exigent circumstances, the oral argument must be heard by the full panel assigned to decide the case, and in any event must be considered and decided by the full panel. The procedure on oral argument, including waiver and forfeiture of oral argument, must be as prescribed by the Minnesota Rules of Civil Appellate Procedure, unless this rule directs otherwise.Amended effective 1/11/2019; amended effective 3/1/2020; amended October 8, 2021, effective 10/8/2021.