Rule 28.04 - Appeal by ProsecutorSubd. 1.Right of Appeal. The prosecutor may appeal as of right to the Court of Appeals: (1) in any case, from any pretrial order, including probable cause dismissal orders based on questions of law. But a pretrial order cannot be appealed if the court dismissed a complaint for lack of probable cause premised solely on a factual determination, or if the court dismissed a complaint under Minn. Stat. § 631.21;(2) in felony cases, from any sentence imposed or stayed by the district court;(3) in any case, from an order granting postconviction relief under Minn. Stat. ch. 590;(4) in any case, from an order staying adjudication of an offense for which the defendant pleaded guilty or was found guilty at a trial. An order for a stay of adjudication to which the prosecutor did not object is not appealable;(5) in any case, from a judgment of acquittal by the district court entered after the jury returns a verdict of guilty under Rule 26.03, subd. 18(2) or (3);(6) in any case, from an order of the district court vacating judgment and dismissing the case made after the jury returns a verdict of guilty under Rule 26.04, subd. 3;(7) in any case, from an order for a new trial granted under Rule 26.04, subd. 1, after a verdict or judgment of guilty, if the district court expressly stated in its order or in an accompanying memorandum that it based its order exclusively on a question of law that, in the opinion of the district court, is so important or doubtful that the appellate court should decide it. However, an order for a new trial cannot be appealed if based on the interests of justice.Subd. 2.Procedure Upon Appeal of Pretrial Order. The procedure upon appeal of a pretrial order by the prosecutor is as follows: (1) Stay. Upon oral notice that the prosecutor intends to appeal a pretrial order, the district court must stay the proceedings for 5 days to allow time to perfect the appeal. The oral notice must include a statement for the record explaining how the district court's alleged error, unless reversed, will have a critical impact on the outcome of the trial.
(2) Notice of Appeal. The prosecutor must file with the clerk of the appellate courts: (b) the statement of the case provided for by Minnesota Rule of Civil Appellate Procedure 133.03, which must also include a summary statement by the prosecutor explaining how the district court's alleged error, unless reversed, will have a critical impact on the outcome of the trial; and
(c) a copy of the written request to the court reporter for a transcript of the proceedings as appellant deems necessary. The prosecutor must submit with the notice of appeal, the statement of the case, and request for transcript at the time of filing, proof of service of these documents on the defendant or defense counsel, the State Public Defender's office, the Minnesota Attorney General, and the court administrator.
Failure to serve or file the statement of the case, to request the transcript, to file a copy of such request, or to file proof of service, does not deprive the Court of Appeals of jurisdiction over the prosecutor's appeal, but permits action the Court of Appeals deems appropriate, including dismissal of the appeal. The contents of the notice of appeal must be as set out in Rule 28.02, subd. 4(2).
(3) Briefs. The prosecutor must file the appellant's brief with the clerk of appellate courts, with proof of service on the respondent, within 15 days of delivery of the transcript. If the court reporter delivered the transcript before the prosecutor filed the notice of appeal, or if the prosecutor did not request any transcript under Rule 28.04, subd. 2(2), appellant must file the appellant's brief with the clerk of the appellate courts together with proof of service upon the respondent within 15 days after the prosecutor filed the notice of appeal.
Within 8 days of service of appellant's brief upon respondent, the respondent must file the respondent's brief together with proof of service on the appellant. In all other respects, and to the extent applicable, the Minnesota Rules of Civil Appellate Procedure govern the form and filing of briefs and addenda, but the appellant's brief must contain a procedural history.
(4) Dismissal by the Minnesota Attorney General. In appeals by the prosecutor, the attorney general may, within 20 days after entry of the order staying proceedings, dismiss the appeal, and must within 3 days after the dismissal give notice of it to the court administrator and file it with the clerk of the appellate courts. The district court must then proceed as if no appeal had been taken.(5) Oral Argument and Consideration. Rule 28.02, subd. 13 concerning oral argument applies to appeals by the prosecutor, but the date of oral argument or submission of the case to the court without oral argument cannot be later than 3 months after all briefs have been filed. The Court of Appeals must not hear or accept as submitted any appeals not argued or submitted before this period elapsed. If the case has not been argued or submitted within 3 months, the district court must proceed as if no appeal had been taken.(6) Attorney Fees. Reasonable attorney fees and costs incurred must be allowed to the defendant on such appeal, and they must be paid by the governmental unit responsible for the prosecution.(7) Joinder. The prosecutor may appeal several of the orders under this rule joined in a single appeal.(8) Time for Appeal. The prosecutor may not appeal under this rule until after the Omnibus Hearing has been held under Rule 11, or the evidentiary hearing and pretrial conference, if any, have been held under Rule 12, and the district court has decided all issues raised. The appeal then must be taken within 5 days after the defense, or the court administrator under Rule 33.03, serves notice of entry of the order to be appealed from on the prosecutor, or within 5 days after the district court notifies the prosecutor in court on the record of the order, whichever occurs first.
All pretrial orders entered and noticed to the prosecutor before the district court's final determination of all issues raised in the Omnibus Hearing under Rule 11, or in the evidentiary hearing and pretrial conference under Rule 12, may be included in this appeal.
An appeal by the prosecutor under this rule bars any further appeal by the prosecutor from any existing orders not included in the appeal. No appeal of a pretrial order by the prosecutor can be taken after jeopardy has attached.
An appeal under this rule does not deprive the district court of jurisdiction over pending matters not included in the appeal.
Subd. 3.Cross-Appeal by Defendant. When the prosecutor appeals, the defendant may obtain review of any adverse pretrial or postconviction order by filing a notice of cross-appeal with the clerk of the appellate courts, with proof of service on the prosecutor, within 10 days after the prosecutor serves notice of the appeal. In postconviction cases, the notice of cross-appeal may be filed within 60 days after the entry of the order granting or denying postconviction relief, if that is later. Failure to serve the notice does not deprive the Court of Appeals of jurisdiction over defendant's cross-appeal, but permits action the Court of Appeals deems appropriate, including dismissal of the cross-appeal.
Subd. 4.Conditions of Release. Upon appeal by the prosecutor of a pretrial order, Rule 6.02, subds. 1 and 2 govern the conditions for defendant's release. The court must also consider that the defendant, if not released, may be confined for a longer time pending the appeal than would be possible under the potential sentence for the offense charged.Subd. 5.Proceedings in Forma Pauperis. An indigent defendant who wants the services of an attorney in an appeal by the prosecutor under this rule must proceed under Rule 28.02, subd. 5.Subd. 6.Procedure Upon Appeal of Postconviction Order.(1) Service and Filing. The prosecutor may appeal an order granting postconviction relief by filing a notice of appeal with the clerk of the appellate courts, with proof of service on the opposing counsel, the court administrator, and the Minnesota Attorney General. No fees or bond for costs are required for the appeal. The statement of the case in Minnesota Rule of Civil Appellate Procedure 133.03 need not be filed, unless the appellate court directs otherwise.
Failure of the prosecutor 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 of the appeal.
(2) Time for Taking an Appeal. An appeal by the prosecutor of an order granting postconviction relief must be taken within 60 days after entry of the order.(3) Other Procedures. The following rules govern the below-listed aspects of prosecution appeals from an order granting postconviction relief under this rule: (a) Rule 28.02, subd. 4(2): the contents of the notice of appeal;(b) Rule 28.02, subd. 8: the record on appeal;(c) Rule 28.02, subd. 9: transcript of the proceedings and transmission of the transcript on record;(d) Rule 28.02, subd. 10: briefs;(e) Rule 28.02, subd. 13: oral argument;(f) Rule 28.04, subd. 2(4): dismissal by the Minnesota Attorney General;(g) Rule 28.04, subd. 2(6): attorney fees; and(h) Rule 28.06: voluntary dismissal.Subd. 7.Procedure Upon Appeal From Order Staying Adjudication.(1) Service and Filing. The prosecutor may appeal an order staying adjudication by filing a notice of appeal with the clerk of the appellate courts, with proof of service on opposing counsel, the court administrator, the State Public Defender's office, and the Minnesota Attorney General. The notice must be accompanied by a copy of a written request to the court reporter for a transcript of the proceedings, as appellant deems necessary. No fees or bond for costs are required for the appeal.
The statement of the case in Minnesota Rule of Civil Appellate Procedure 133.03 need not be filed, unless the appellate court directs otherwise.
Failure of the prosecutor 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 of the appeal.
(2) Time for Taking an Appeal. An appeal by the prosecutor from an order staying adjudication must be taken within 10 days after entry of the order.(3) Briefs. The prosecutor must file and serve the appellant's brief and proof of service on the respondent with the clerk of the appellate courts within 15 days after delivery of the transcript. If the court reporter delivered the transcript before the prosecutor filed the notice of appeal, or if the prosecutor did not request a transcript, the appellant must file the appellant's brief and proof of service on the respondent with the clerk of the appellate courts together within 15 days after the prosecutor filed the notice of appeal. The brief must identify itself as a stay of adjudication brief.
Within 8 days after service of the appellant's brief, the respondent must file the respondent's brief and proof of service on the appellant. In all other respects, and to the extent applicable, the Minnesota Rules of Civil Appellate Procedure govern the form and filing of briefs and addenda, but the appellant's brief must contain a procedural history.
(4) Other Procedures. The following rules govern the below-listed aspects of prosecution appeals from an order staying adjudication:(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. 7: release of the defendant pending appeal;(d) Rule 28.02, subd. 8: the record on appeal; and(e) Rule 28.02, subd. 13: oral argument.Subd. 8.Procedure Upon Appeal From Judgment of Acquittal or Vacation of Judgment After a Jury Verdict of Guilty, or From an Order Granting a New Trial.(1) Service and Filing. The prosecutor may appeal these judgments or orders by filing with the clerk of the appellate courts a notice of appeal and proof of service on the opposing counsel, the court administrator, and the Minnesota Attorney General. No fees or bond for costs are required for the appeal. The statement of the case in Minnesota Rule of Civil Appellate Procedure 133.03 need not be filed, unless the appellate court directs otherwise.
Failure of the prosecutor 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 of the appeal.
(2) Time for Appeal. An appeal by the prosecutor under this subdivision must be made within 10 days after entry of the judgment or order.(3) Stay and Conditions of Release. Upon oral notice that the prosecutor intends to appeal under this subdivision, the district court must order execution of the judgment or order stayed for 10 days to allow time to perfect the appeal. The district court must also determine the conditions for defendant's release pending the appeal, which are governed by Rule 6.02, subds. 1 and 2.(4) Other Procedures. The following rules govern the below-listed aspects of appeals by the prosecutor under this subdivision: (a) Rule 28.02, subd. 4(2): the contents of the notice of appeal;(b) Rule 28.02, subd. 8: the record on appeal;(c) Rule 28.02, subd. 9: transcript of the proceedings and transmission of the transcript and record; (d) Rule 28.02, subd. 10: briefs;(e) Rule 28.02, subd. 13: oral argument;(f) Rule 28.04, subd. 2(4): dismissal by the Minnesota Attorney General; and (g) Rule 28.04, subd. 2(6): attorney fees.(5) Cross-Appeals. When the prosecutor appeals under this subdivision, the defendant may obtain review of any adverse pretrial and trial orders and issues by filing a notice of cross-appeal with the clerk of the appellate courts, with proof of service on the prosecutor, within 30 days of the prosecutor filing notice of appeal, or within 10 days after delivery of the transcript by the reporter, whichever is later. If the defendant makes this election, and the jury's verdict is ultimately reinstated, the defendant may not file a second appeal from the entry of judgment of conviction unless it is limited to issues, such as sentencing, that could not have been raised in the cross-appeal.
The defendant may also elect to respond to the issues raised in the prosecutor's appeal and reserve appeal of any other issues until such time as the jury's verdict of guilty is reinstated. If reinstatement occurs, the defendant may appeal from the judgment using the procedures in Rule 28.02, subd. 2.
Amended effective 3/1/2015.