Frisch v. State, Minn.Ct.App., 12/9/2013. Mr. Frisch has been trying to appeal his conviction for gross misdemeanor driving while impaired. He filed an untimely notice of appeal, which the court of appeals promptly threw out. Mr. Frisch then filed a post conviction petition, saying that the state presented insufficient evidence and that the trial court had erroneously instructed the jury. The post conviction court promptly threw that out. Mr. Frisch appealed that dismissal, on time this time. Right before his appellate brief was due he asked the court of appeals to stay that appeal so that he could go back and file a second post conviction petition in which he wanted to say that his trial attorney had been ineffective in botching both the direct appeal and the first post conviction petition.
Mr. Frisch thought that there was a rule for that, Minn.R.Crim.P. 28.02, subd. 4(4). That rule says that you can ask the appellate court to stay the appeal so that you can go back to the trial court and commence a post conviction petition.
The court of appeals reads this rule to apply to litigants who are still pursuing a direct appeal. The court concludes that the rule does not permit a post conviction litigant to stay an appeal of the denial of a post conviction petition in order to go back and commence a second one.
Just why Mr. Frisch’s position is different from that presented in Barnes v. State ,768 N.W.2d 359 (Minn. 2009), isn’t clear since it didn’t come up. After Barnes lost a post conviction petition, which he handled pro se, he appealed and then hired counsel. His attorney – okay, it was me - then asked the supreme court to stay the appeal so that he could return to the post conviction court either to seek reconsideration of the initial petition or to file a second one. The supreme court granted that stay and let Mr. Barnes go back and slug it out some more in the post conviction court. Although Barnes only asked for reconsideration the stay had been granted for both purposes.
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