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Filing a Postconviction Appeal
This page will explain how you can file an appeal from a district court order denying a postconviction petition. You should carefully review this information and complete every step, but there is also a checklist for your convenience:
NOTE: This page covers postconviction appeals to the Minnesota Court of Appeals only. If you were convicted of first-degree murder and are appealing an order denying postconviction relief from that conviction, you must file an appeal with the Minnesota Supreme Court. If you are filing any other type of criminal appeal, see the page entitled "Filing a Criminal Appeal (Generally)."
Time to Appeal
In general, you have 60 days to appeal to the court of appeals after the district court files an order denying a petition for postconviction relief. See Minn. R. Crim. P. 28.02, subd. 4(3)(c). Appeals to the court of appeals in other types of criminal cases, including direct appeals of felony or misdemeanor convictions, have very different filing deadlines. You must read rule 28.02, subdivision 4(3) of the Minnesota Rules of Criminal Procedure (abbreviated "Minn. R. Crim. P.") to confirm the deadline that applies to your appeal.
Your appeal time begins to run on the date that the district court administrator files the order, not when you receive a copy of the order. See Minn. R. Crim. P. 33.03. The court of appeals can extend the appeal deadline for up to 30 additional days, but you must make a motion for an extension and you must show "good cause" to get an extension. See Minn. R. Crim. P. 28.02, subd. 4(3)(g).
If you had a previous appeal involving the same conviction, and you were represented by an attorney from the Office of the Minnesota Appellate Public Defender in that appeal, you may not be entitled to an appointed attorney for postconviction proceedings. See Minn. Stat. § 611.25, subd. 1(a)(2). If this is your first appeal on this conviction, and you meet certain financial eligibility reuqirements, you may be entitled to a public defender on appeal. You must apply to:
Office of the Minnesota Appellate Public Defender
540 Fairview Avenue North, Suite 300
St. Paul, MN 55104
You, as the appealing party, are called the appellant. The other party in a postconviction appeal is the State of Minnesota and is called the respondent. The State of Minnesota is represented by the county attorney and the Minnesota Attorney General. The title of a postconviction appeal is as follows: "(Your name), petitioner, Appellant, vs. State of Minnesota, Respondent."
The Notice of Appeal (Form 33) must show: (1) who is filing the appeal; (2) the names, addresses, and phone numbers of all attorneys who have appeared in the case; (3) the date of the postconviction order you are appealing; and (4) the court where your appeal is being filed (Minnesota Court of Appeals).
The Statement of the Case (Form 133) provides general information about your case and is used by the court of appeals to process and schedule your case. You must follow Form 133 and Minn. R. Civ. App. P. 133.03 and answer questions about: (1) the date of the order you are appealing; (2) the rule or statute that you believe authorizes you to appeal, see Minn. R. Crim. P. 28.02; (3) the issue you intend to raise on appeal (only a general discussion is necessary because you will have the chance to present your arguments in more detail later); and (4) whether a transcript is required for your appeal. The statement of the case asks whether you are requesting oral argument, but oral argument will not be allowed if any party does not have an attorney.
Notice of Appeal form- PDF format
Statement of the Case Form- PDF format
No filing fees are required to file a postconviction appeal under Minn. Stat. § 590.06.
"Filing" means giving your appeal documents to the Office of the Clerk of the Appellate Courts. You may file documents by hand-delivering them to the clerk's office or by placing them in the United States mail, first-class postage prepaid, by the filing deadline. See Minn. R. Civ. App. P. 125.01. Filing by facsimile (fax) or other electronic means currently is not allowed unless authorized by an order of the Minnesota Supreme Court. The appellate courts are in the process of implementing an electronic filing system, but you will still be able to file an appeal by hand-delivery or by mail.
Documents must be filed with:
Clerk of the Appellate Courts
305 Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155
8 a.m. - 4:30 p.m. weekdays
Important: You must also file a copy of your notice of appeal with the district court administrator of the county in which the order you are appealing was filed.
"Service" means giving a copy of documents to the other party to the appeal (called the respondent). Every document filed with the Clerk of the Appellate Courts must be served on the other party to the appeal, either personally or by mail. You must serve on the respondent a copy of all appeal documents and every motion, brief, or other document that you file on appeal.
Service by mail is made by depositing the documents in the United States mail, first-class postage prepaid. If you decide to have the documents served personally, this may be done by the sheriff or another person 18 years or older who is not a party to the appeal. Because the State of Minnesota always is represented by the Minnesota Attorney General and the county attorney, you must also serve those attorneys.
Proof of Service
Every document submitted to the Clerk of the Appellate Courts for filing must be accompanied by proof that the document was served on the other parties to the appeal. Usually, proof of service is (1) a notarized affidavit of service or (2) a certificate of service. Proof of service can also be a written admission by the person who was served that the document was received. See Minn. R. Civ. App. P. 125.04.
The person who served the document in person or by mail must complete the affidavit or certificate of service, which must include a description of the documents that were served, the date of service, the method of service (by mail or in person), the name of the person who was served, and the address to which the documents served by mail were sent. The affidavit or certificate of service must be signed by the person who served the documents.
Affidavit of Service. An affidavit of service must be signed in front of a notary by the person who served the document. The notary must also sign and date the document. Notary services are available at many financial institutions for a small fee. The Office of the Clerk of the Appellate Courts will notarize an affidavit of service at no charge.
Certificate of Service. A certificate of service does not need to be notarized. A certificate of service must contain a statement by the person who signs the certificate that the person declares under the penalty of perjury that everything stated in the document is true and correct. The certificate must show the date of signing and the county and state where the certificate was signed.
Affidavit of Service by U.S. Mail Delivery (PDF)
Affidavit of Service by Personal Delivery (PDF)
Certificate of Service by U.S. Mail Delivery (PDF)
Certificate of Service by Personal Delivery (PDF)
You may file one affidavit or certificate listing multiple documents if you serve those documents on the same date and on the same parties.
You should make extra copies of the form so you can submit one every time you submit documents for filing.
Calculating Time Periods
To figure out the deadline for filing and serving documents, apply these rules:
- Do not count the day of the event that starts the time period (the date of filing the district court's order, the date of service of the respondent's brief), but start counting the next day.
- Continue counting calendar days.
- Do not skip weekends or legal holidays. If the last day of the period falls on a Saturday, Sunday, or legal holiday, then the deadline is the next business day.
Legal holidays for the appellate courts are New Year's Day (January 1); Martin Luther King, Jr.'s birthday (the third Monday in January); Presidents' Day (the third Monday in February); Memorial Day (the last Monday in May); Independence Day (July 4); Labor Day (the first Monday in September); Veterans' Day (November 11); Thanksgiving Day (the fourth Thursday in November); the Friday after Thanksgiving; and Christmas Day (December 25).
The appellate courts are open on Columbus Day, which falls on the second Monday in October. However, Columbus Day is a legal holiday for the purpose of determining a time period. If the last day of the period falls on Columbus Day, then the period is extended until the next day.
The court of appeals will obtain the district court file, which includes motion papers and documents filed with the district court. If you requested and received an evidentiary hearing before the district court on your petition for postconviction relief (Minn. Stat. § 590.04), any testimony, arguments, or evidence that was submitted at that hearing will be part of the record on appeal. A transcript is a typed record of what the parties, attorneys, and district court judge said at the hearing. The parties must order a transcript for the appeal if they want to make arguments about what was said at the hearing. See Minn. R. Crim. P. 28.02, subd. 8; Minn. R. Civ. App. P. 110.01.
The court of appeals cannot consider new evidence on appeal, and the arguments in your brief must be based on the evidence you presented in the district court.
The brief is your written argument on appeal. You must file five copies of your brief with the Clerk of the Appellate Courts (four bound and one unbound) and serve two copies on the attorneys for each respondent. See Minn. R. Civ. App. P. 131.03.
You must also file proof of service for the brief with the Clerk of the Appellate Courts. (See "service" and "proof of service" above.)
If you received an evidentiary hearing in the district court on your postconviction petition and ordered a transcript of that hearing, you must serve and file your appellant's brief within 63 days after the date that the court reporter mailed the transcript to you. See Minn. R. Crim. P. 28.02, subd. 10; Minn. R. Crim. P. 34.04. If you did not have an evidentiary hearing in the district court and no transcript will be prepared for appeal, then you must serve and file your brief within 60 days of filing the notice of appeal. See Minn. R. Crim. P. 28.02, subd. 10. The court will not remind you of this deadline.
The appellant must file a brief explaining why the district court's decision should be reversed, or the appeal will be dismissed. See Minn. R. Civ. App. P. 142.02.
There are three types of briefs:
- a formal brief, which must be bound and include a table of contents, a statement of the legal issues, a statement of the case and the facts, an argument, a conclusion, and an addendum(see Minn. R. Civ. App. P. 128.02, Minn. R. Civ. App. P. 130.02);
- an informal brief, which may be stapled and includes a written argument and addendum (see Minn. R. Civ. App. P. 128.01, subd. 1); or
- a short letter argument that supplements written arguments submitted to the district court. This type of brief can be used only when written arguments were filed in the district court in support of the postconviction petition. When it is used, it may be stapled (not formally bound by a printer), and it must include an addendum (see Minn. R. Civ. App. P. 128.01, subd. 2).
Many pro se postconviction appellants file an informal brief. Every appellant's brief, no matter what form used, must include an addendum. The addendum must include, at the least, a copy of the district court order being appealed. See Minn. R. Civ. App. P. 130.02.
Time Extensions or Other Requests (Motions)
If you cannot serve and file your brief by the deadline, or if you want some other type of relief from the court of appeals, you must serve and file a written motion. Any motion for an extension should be served and filed before the deadline that you are seeking to extend.
The requirements for a motion are found in Minn. R. Civ. App. P. 127. The motion must state the relief requested, the reasons for wanting relief, and the authority (cases, statutes, or rules) for the request. You must serve the motion on the attorneys for respondent. You must also file proof of service for the motion and one signed motion with the Clerk of the Appellate Courts.
How Your Case Will be Decided
After the parties have filed their briefs, the appeal will be scheduled for consideration by a panel of three judges. If you are not represented by an attorney, the court will not allow oral arguments. See Minn. App. Spec. R. Pract. 2.
The Clerk of the Appellate Courts will send out a notice when the appeal has been assigned to a panel, with the names of the judges and the date that the judges will consider the case.
The court of appeals will generally file a written decision on a postconviction appeal within 90 days of the nonoral conference or oral arguments.
Any party can request further review from the Minnesota Supreme Court within 30 days after the filing of the court of appeals decision. See Minn. R. Crim. P. 29.04, subd. 2.
Clerk of the Appellate Courts
305 Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr. Boulevard
St. Paul, MN 55155
8 a.m. - 4:30 p.m. Monday - Friday
NOTE: The clerk's office can answer questions about the court's procedures and rules, but cannot fill out the forms for you or give you any legal advice about your case.