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Filing a Postconviction Appeal
This page will help you appeal a district court order denying postconviction petition. You should carefully review the page 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.
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. 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. Read rule 28.02, subd. 4(3) of the Minnesota Rules of Criminal Procedure (abbreviated "Minn. R. Crim. P.") to confirm the deadline that applies to your appeal.
If you had a previous appeal involving the same conviction, and you were represented by an attorney in that appeal, you may not be entitled to an appointed attorney for postconviction proceedings. If this is your first appeal on this conviction, you may be entitled to an attorney from the State Public Defender's Office.
State Public Defender's Office
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.
Papers 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
You may file documents by hand-delivering them between 8 a.m. and 4:30 p.m. weekdays 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. If you mail a document on the last day of a time period, be sure there will be a mail pick-up after you deposit the papers in the mail, so that the envelope is postmarked the same day that it was mailed.
You have 60 days to appeal to the Court of Appeals from an order denying postconviction relief. See Minn. R. Crim. P. 28.02, subd. 4(3). That time begins to run on the date that the court administrator in the district 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).
"Service" means giving a copy of documents to the other parties to the appeal (called the respondents). Every document filed with the Clerk must be served on the other parties to the appeal, either personally or by mail. You must serve on the respondents a copy of all appeal papers and every motion, brief, or other documents that you file on appeal. This includes the:
Notice of Appeal form- Microsoft Word or PDF format
Statement of the Case Form- Microsoft Word or PDF format
Service by mail is made by depositing the papers in the United States mail, first-class postage prepaid. If you decide to have the papers served personally, this may be done by the sheriff or another person 18 years or older who is not a party to the appeal. If a party has an attorney, you must serve the attorney, rather than the party.
Affidavit of Service
You must file proof with the Clerk that you have served every document submitted for filing (the appeal papers, all motions, your brief, etc.) on the attorneys for the respondents.
The person who served the papers by mail or in person must complete an affidavit of service and have it notarized:
Affidavit of Service by U.S. Mail Delivery (Word)
Affidavit of Service by Personal Delivery (Word)
The Clerk can notarize the affidavit at no charge if the person who fills out the affidavit comes into the office, and most banks offer notary services for a small fee.
You may file one affidavit 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, UNLESS the last day of the period falls on a Saturday, Sunday, or legal holiday. Then the deadline is the next business day.
Filing Fees and Cost Bonds
No filing fees or cost bonds are required to file a postconviction appeal under Minn. Stat. § 590.06.
The Court of Appeals will request the district court file and will review the papers filed, plus any exhibits, and the transcript (typed record of testimony and arguments), if the parties have made arrangements to have one prepared. See Minn. R. Crim. P. 28.02, subd. 8; Minn. R. Civ. App. P. 110.01.
The court administrator in the district will send the record to the Clerk of the Appellate Courts when it is requested by the Court of Appeals.
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.
If you requested and received an evidentiary hearing before the district court on your petition for postconviction relief (Minn. Stat. § 590.04), any testimony or evidence that was submitted at that hearing will be part of the record on appeal. If testimony was given at a postconviction evidentiary hearing, then you must order a transcript. A transcript is a typed copy of what the parties, the attorneys, and the district court judge said at your hearing.
The brief is your written argument on appeal. You must file seven copies of your brief with the Clerk of the Appellate Courts 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 (See "service" and "affidavit 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 issue an order reminding 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 appendix (See Minn. R. Civ. App. P. 128.02, Minn. R. Civ. App. P. 132.01);
- an informal brief, which may be stapled and includes a written argument and appendix (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 appendix (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 appendix. The appendix must include, at the least, a copy of the petition for postconviction relief and a copy of the district court order being appealed. See Minn. R. Civ. App. P. 130.01.
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 respondents. You must also file an affidavit of service for the motion, one signed original motion, and four copies. No copies are required for a motion to extend a briefing deadline.
How Your Case Will be Decided
After the parties have filed their written arguments on appeal (the briefs), the appeal will be scheduled for consideration by a panel of three judges.
If the defendant is not represented by an attorney, the Court will not allow oral arguments. See Minn. App. Spec. R. Pract. 2.
The Clerk 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 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 by the Minnesota Supreme Court within 30 days after the filing of the Court of Appeals decision. See Minn. R. Civ. App. P. 117.
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 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.