Minn. R. Crim. P. 28.05

As amended through October 28, 2024

Rule 28.05 - Appeal from Sentence Imposed or Stayed

Subd. 1.Procedure. The following procedures apply to the appeal of a sentence imposed or stayed under these rules:

(1) Notice of Appeal and Briefs. Any party appealing a sentence must file with the clerk of the appellate courts, within 90 days after judgment and sentencing:

(a) a notice of appeal; and

(b) proof of service of the notice on opposing counsel, the Minnesota Attorney General, the court administrator, and in the case of prosecution appeals the State Public Defender's office.

If all transcripts necessary for the appeal have already been transcribed when the appellant files the notice of appeal, the party appealing the sentence must file with the notice of appeal an informal letter brief in the number of copies prescribed by standing order of the appellate court, which must identify itself as a sentencing appeal brief, with proof of service on opposing counsel, the Minnesota Attorney General, and in the case of prosecution appeals the State Public Defender's office. The brief must set out the arguments concerning the illegality or inappropriateness of the sentence.

When the transcripts necessary for the appeal have not been transcribed, the appellant must file with the notice of appeal a request for transcripts, and proof of service of the request on opposing counsel, the Minnesota Attorney General, the court administrator, and in the case of prosecution appeals, the State Public Defender's office.

Appellant's brief must be identified as a sentencing appeal brief and must be served and filed within 30 days after delivery of the transcript, or for a self-represented party who requests a paper copy of a transcript and notice is provided under subdivision 4, Rule 110.02 of the Rules of Civil Appellate Procedure, 30 days after the date of the notice regarding the availability of the transcript, with 3 days added to the briefing period measured from the date of that notice. The clerk of the appellate courts must not accept a notice of appeal from sentence unless accompanied by the requisite briefs or transcript request and proof of service.

A defendant appealing the sentence and the judgment of conviction may combine the two into a single appeal; when this option is selected, the procedures in Rule 28.02 continue to apply.

(2) Transmission of Record. Upon receiving a copy of the notice of appeal, the court administrator must immediately forward to the clerk of the appellate courts:

(a) a transcript of the sentencing hearing, if any;

(b) the sentencing order required in Rule 27.03, subd. 7, with the departure report, if any;

(c) the sentencing guidelines worksheet; and

(d) any presentence investigation report.

(3) Respondent's Brief. Within 10 days of service on respondent of appellant's brief, a respondent choosing to respond must serve an informal letter brief on appellant and file with the clerk of the appellate courts the number of copies prescribed by standing order of the appellate court.

(4) Reply Brief. Appellant may serve and file a reply brief within 5 days after service of the respondent's brief.

(5) Other procedures. The following rules govern the below-listed aspects of sentencing appeals:

(a) Rule 28.02, subd. 4(2): the contents of the notice of appeal;

(b) Rule 28.02, subd. 5: proceedings in forma pauperis;

(c) Rule 28.02, subd. 6: stays;

(d) Rule 28.02, subd. 7: release of the defendant on appeal; and

(e) Rule 28.02, subd. 13: oral argument.

Subd. 2.Action on Appeal. The appellate court may review the sentence imposed or stayed to determine whether the sentence is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the sentencing court's findings of fact. This review exists in addition to all other powers of review.

The court may:

(a) dismiss or affirm the appeal;

(b) vacate or set aside the sentence imposed or stayed and direct entry of an appropriate sentence; or

(c) order further proceedings as it may direct.

Minn. R. Crim. P. 28.05

Amended October 8, 2021, effective 10/8/2021.