State v. Parker
| Decision Date | 08 September 1967 |
| Docket Number | No. 41000,41000 |
| Citation | 153 N.W.2d 264,278 Minn. 53 |
| Parties | STATE of Minnesota, Respondent, v. John PARKER, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. In criminal cases timely filing of notice of appeal with the clerk of the court where the judgment is entered and timely service of notice thereof on the attorney general within 6 months after judgment of conviction, as prescribed by statute, are jurisdictional.
2. Filing of notice of appeal with the clerk of court is timely made only if actually received by the clerk of court within the statutory period.
3. Service of notice of appeal on the attorney general by mailing is timely made if mailed within the statutory period.
4. Where notice of appeal was mailed to the attorney general on the last day of the statutory period, Held, motion to dismiss the appeal on the sole ground that such service was not timely is denied.
C. Paul Jones, Public Defender, Minneapolis, for appellant.
Douglas M. Head, Atty. Gen., St. Paul, George M. Scott, County Atty., Minneapolis, for respondent.
The question presented by the state's motion to dismiss the criminal appeal of defendant is whether a notice of appeal mailed to the attorney general on the last day of the statutory period for appeal 1 is such timely service as will invoke the jurisdiction of this court. 2 Although a question of importance in criminal procedure, it has not been raised for decision until now.
The procedural setting giving rise to the question is simple and undisputed. Defendant was adjudged convicted of aggravated robbery in the District Court of Hennepin County on January 10, 1967. On July 10, 1967, the last day of the 6-month period for removal of criminal cases to this court, defendant mailed the notice of appeal to the attorney general of the State of Minnesota. The notice was received by the attorney general the next day, which was more than 6 months after the judgment of conviction.
1. It is fundamental that the right of appeal is purely statutory and that the statutory requirements of filing and service are jurisdictional. 3 This court has no power to extend the statutory time for appeal. The court does have the power, of course, to construe the words of the statute itself, and such construction is necessary to disposition of the present motion.
2. The first relevant requirement of the statute is that the notice of appeal shall be timely Filed with the clerk of court where the judgment is entered. The meaning of the term 'filed' is plain and means that the notice must actually be received by the clerk within 6 months after judgment. 4
3. The second relevant requirement of the statute is that the notice of appeal shall be timely Served on the attorney general. The meaning of the term 'served' is not so plain, and requires judicial construction. We construe it to mean that service is effective upon mailing, so that a notice of appeal mailed to the attorney general within 6 months after judgment complies with the statutory requirement. As this court indicated in State ex rel. Danielsen v. Tahash, 5 we should not give so narrow a construction of procedural rules as would deny a convicted defendant his right to appeal. Although the precise question was not squarely in issue in that case, it appears inferentially that the fact of mailing the notice of appeal to the attorney general within the proper time was the important act in establishing compliance with the statutory requirement. 6 This construction of the statutory requirement corresponds with the procedure provided in civil cases. 7
4. The motion to dismiss the appeal on the sole ground that the defendant's notice of appeal was not timely served upon the attorney general must be denied, but without prejudice to the consideration of any subsequent motion to dismiss on other grounds of noncompliance with the statutes governing criminal appeals. 8
Motion denied.
1 Minn.St. 632.01 provides: 'Criminal cases may be removed by the defendant to the supreme court, by appeal or writ of error, at any time within six months after judgment, * * *.'
2 Section 632.02 provides: '* * * Notice of the appeal and the order staying proceedings, if any, shall be...
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AC FORD v. State
...We have held, however, that the time requirements for the filing of an appeal are jurisdictional. See, e.g., State v. Parker, 278 Minn. 53, 55, 153 N.W.2d 264, 266 (1967). Even when a party has not received notice of the entry of an order, the court has not extended the time for appeal. See......
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Abdulrazzak v. S.D. Bd. of Pardons & Paroles
...as actual receipt of a document by the trial court before expiration of the time period. Id. at 391-92 (citing State v. Parker, 278 Minn. 53, 153 N.W.2d 264 (1967) ; Langer v. Comm'r of Revenue, 773 N.W.2d 77 (Minn. 2009) ).[¶16.] In a similar analysis, the Nebraska Supreme Court also refus......
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Ford v. State, No. A04-0282 (MN 1/13/2005)
...We have held, however, that the time requirements for the filing of an appeal are jurisdictional. See, e.g., State v. Parker, 278 Minn. 53, 55, 153 N.W.2d 264, 266 (1967). Even when a party has not received notice of the entry of an order, the court has not extended the time for appeal. See......
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Langer v. Commissioner of Revenue, No. A09-414.
...of the term "filed" is plain and means that the notice of appeal must actually be received within the statutory period. 278 Minn. 53, 55, 153 N.W.2d 264, 266 (1967). In City of St. Paul v. Wiplinger, we reaffirmed what we said in Parker, holding that "[i]n the absence of a statute authorizi......