City of Albert Lea v. Harrer

381 N.W.2d 499, 1986 Minn. App. LEXIS 4011

• Court: Court of Appeals of Minnesota
• Decided: February 18, 1986
• Docket: C6-85-1561
• Status: Published

Opinions

OPINION

PARKER, Judge.

This appeal is from a pretrial order. Respondent Michael Harrer was charged with driving while under the influence of alcohol in violation of Minn.Stat. § 169.121, subd. 1(a) (1984). Harrer moved to dismiss the complaint, arguing his arrest was b'ased on evidence obtained during an illegal detention a few minutes before the DWI arrest. The trial court agreed and issued a pretrial order dismissing the charges against Harrer. The prosecutor then filed a notice of appeal. Harrer contends the appeal is not timely taken and should be dismissed. We agree and dismiss.

FACTS

Albert Lea police officer John Michael Wondra received a description of a suspect in a possible assault from the radio dispatcher. He stopped Harrer, who was in the proximity of the scene and matched the description of the possible assailant. Won-dra took Harrer to the scene in the squad car. When the victim indicated she had not gotten a good look at her attacker, Harrer was released. Wondra told him not to drive because he appeared intoxicated.

Immediately thereafter, Wondra saw Harrer driving and arrested him for DWI. Harrer moved to dismiss the charges, arguing the evidence obtained during the prior invalid investigatory stop or illegal arrest was suppressible. At a pretrial hearing the trial court ruled there was no probable cause for the initial stop and ordered the observations suppressed. No probable cause then existed to support the arrest for DWI, and the complaint was dismissed.

The written pretrial order was filed August 8, 1985. The clerk of court placed the prosecutor’s copy of the order in his mailbox located in the county courthouse. The prosecutor mailed a notice of appeal on August 16, 1985. Harrer objects, contending among other things that the appeal was not timely taken.

ISSUE

Was appellant’s notice of appeal timely filed?

DISCUSSION

Harrer contends this appeal should be dismissed because the prosecution failed to file a timely appeal. A prosecutor must appeal from a pretrial order “[wjithin five (5) days after entry of the order staying the proceedings.” Minn.R.Crim.P. 28.04, subd. 2(2). Although there was no need for a stay in this case because the trial court’s order dismissed the complaint, the rule has been interpreted to require appeal to be taken within five days of entry of the trial court’s order. See State v. White, 369 N.W.2d 301, 303 (Minn.Ct.App.1985) (appeal from pretrial order dismissing charges on grounds of double jeopardy timely because filed within five days of receiving actual notice of the order and notifying the trial court of intent to appeal).

The pretrial order was filed August 8, 1985. At oral argument before this court, it was revealed that there is a “mailbox” in the county courthouse for the convenience of local attorneys.¹ It is the practice of the clerk of court to place court orders in this mailbox, presumably to save postage. The clerk apparently placed this pretrial order in the mailbox on August 8, 1985. The city attorney indicated to us that he picked up his mail on August 14, gave oral notice of intent to appeal to the clerk (not to the trial court as required by rule 28.04) on August 15, and mailed the notice of appeal on August 16.²

Minn.R.Crim.P. 33.03 requires the clerk “immediately upon entry of an order” to mail a copy of the order to the parties. Id. The clerk cannot ignore this rule even if inconvenient and burdensome. See Tombs v. Ashworth, 255 Minn. 55, 95 N.W.2d 423 (1959) (clerk is bound by Minn.R.Civ.P. 77.-04, which is identical to Minn.R.Crim.P. 33.-03, and has no right to ignore it because “the burden of sending such notices would amount to a physical impossibility”).

In this instance the procedure followed by the clerk was agreed upon by the city attorney. The clerk and city attorney cannot agree to ignore the rules, particularly without the defendant’s consent. The city attorney admitted at oral argument that several local law firms require the clerk to mail orders and refuse to participate in this informal mailbox procedure. We therefore deem the notice of appeal untimely because it was not filed within five days of August 8, 1985, the date of entry of the pretrial order.

Although this result may seem harsh, the right of a prosecutor to appeal should be strictly construed. The fifth amendment prohibition against double jeopardy places constitutional limits on government appeals in criminal cases; the government may appeal only pursuant to express statutory authority. See Arizona v. Manypenny, 451 U.S. 232, 245, 101 S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981). Strict construction of any right to appeal avoids excessive intrusion into this constitutional protection.

DECISION

The prosecutor’s agreement upon an informal mailing which ignores the rules of criminal procedure does not excuse late filing of an appeal; the notice of appeal was therefore not timely filed.

Dismissed.

1 . The city attorney's office is not located in the courthouse but is several blocks away.

2 . Minn.R.Crim.P. 34.01 provides that Saturdays and Sundays are not counted in calculating time periods of seven days or less. Therefore, the prosecution had until August 15 to mail a notice of appeal.