Summary
denying defendant's postconviction petition where he had delayed bringing the petition for 25 years
Summary of this case from Carlton v. StateOpinion
No. 43681.
April 13, 1973.
Criminal law — postconviction proceeding — denial of relief — propriety.
Appeal by Leonard Gaulke from an order of the Winona County District Court, Glenn E. Kelley, Judge, denying his petition for postconviction relief after being convicted of robbery in the second degree. Affirmed.
C. Paul Jones, State Public Defender, for appellant.
Warren Spannaus, Attorney General, and Julius E. Gernes, County Attorney, for respondent.
Considered en banc without oral argument.
Petitioner, a prisoner at the state prison, appeals from the district court's order denying his petition for postconviction relief. We affirm.
In 1946 petitioner was convicted of second-degree robbery. Minn. St. 1945, § 619.43. Had it not been for this conviction, petitioner, when convicted in 1953 of rape, Minn. St. 1953, § 617.01, would have received a sentence of 7 to 30 years rather than 14 to 60 years because the second-offender statute then in effect, Minn. St. 1953, § 610.28 (superseded in 1963 by Minn. St. 609.155), would not have had any application. Petitioner now seeks to overturn the 1946 conviction on the ground of newly discovered evidence, hoping thereby to have his sentence of 14 to 60 years reduced to a 7 to 30-year sentence.
We hold that the district court properly denied the petition on the ground that petitioner, who knew about the allegedly newly discovered evidence in late 1946 and yet did not petition for relief on that basis until 1971, did not act with due diligence in seeking relief.
Affirmed.