Petty Misdemeanor Complaint Need Not be Personally Served Upon Defendant; Best Practice Should Identify Name of Signing Complainant And Source of Information

State v. Wood, Minn.Ct.App., 4/7/2014.  A judge convicted Ms. Wood of various petty traffic violations.  An officer had cited her or speeding and for following another vehicle too closely.  Right after getting her ticket Ms. Wood requested a written complaint.  The state complied.  The state filed the complaint and both mailed and faxed copies of it to Ms. Wood’s office.  Ms. Wood moved to dismiss the complaint.  She made three arguments:  the complaint was not properly served upon her; the complaint was not supported by probable cause because it did not identify the signing complainant and did not explain just how the signing complainant was aware of the facts of the case; and the trial court should have granted her request for a subpoena to this signing complainant.  The trial court denied the motion, rejecting all three arguments.

As does the court of appeals. 

Service:  The rules of criminal procedure do not include a service requirement for either petty misdemeanors or misdemeanor cases.  Moreover, the rule on “service” – Rule 33.02 – applies only to written motions, written notices and “other similar papers,” and not complaints.

Probable Cause:  Ms. Wood said that because the person who signed the complaint had no personal knowledge of the facts of the case and did not disclose her sources the complaint lacked probable cause.  In this instance, the person who signed the complaint was a paralegal within the prosecutor’s office.  The state said, “We do this all the time, so what’s the big deal?”

There’s a United States Supreme Court case, Giordenello v. U.S., 357 U.S. 480 (1958) that threw out an arrest warrant because the warrant did not contain an affirmative allegation that the writer spoke with personal knowledge, did not recite any sources for the writer’s assertions, and did not state any other sufficient basis upon which a finding of probable cause could be made.  So, in the right case letting paralegals sign criminal complaints could be a big deal.  Not so for Ms. Wood.  This is because the complaint showed the source of the paralegal’s assertions – the cop.  Moreover, Ms. Wood could not show any prejudice.  Although Ms. Wood does not prevail on this argument, the court does chastise the practice of letting paralegals run wild.  “Adding a sentence to the complaint stating who the signing complainant is and how she received the stated information is a simple and preferred approach to establishing probable cause.”

Subpoena:  Because the paralegal had no personal knowledge then any testimony from her would not have been either relevant or admissible.  So, there was no abuse of discretion in denying Ms. Wood’s request for a subpoena.

A “DNA Complaint” Which Names an “Unknown Defendant” Identifies a Defendant With “Reasonable Certainty” And Tolls Any Applicable Limitations Period

State v. Carlson, Minn.Ct.App., 4/7/2014.  Back in 2006 a residential burglary occurred in St. Louis Park.  The burglar took various items, including the homeowners’ 2006 Dodge Charger.  Police found a few blood drops throughout the residence and later found an energy drink can in the abandoned Dodge Charger.  After a while, forensics matched the DNA from the blood to the DNA from the energy drink can.  Just before the statute of limitations expired the state filed a complaint charging one “John Doe” with second degree burglary.  The criminal complaint identified this “John Doe” as an unknown male with a 15-loci DNA profile.  Time went by and eventually the BCA matched the DNA from the blood and energy drink can with the DNA profile of Mr. Carlson right down to the fifteenth loci.

Mr. Carlson moved to dismiss the Complaint, saying that it had not identified him with reasonable certainty and thus the state had failed to charged him within the limitations period.  The trial court denied that motion.  Among other reasons, the trial court pointed to the language of Rule 3.02, subd. 1, which requires an unknown defendant to be described by “any name or description by which the defendant can be identified with reasonable certainty.”  The trial court reasoned that if Mr. Carlson were right then this language had no meaning.  The court of appeals upholds the trial court.

It turns out that of the eight states that have taken up this question only Kansas has found this description of a defendant insufficient.  But that was because Kansas was working with only a 2-loci DNA profile.  The court of appeals goes with the other states that have approved such a charging document.  Indeed, the court hints that a 15-loci DNA profile description is even better than the perp’s name and date of birth.

Although unnecessary to do so the court also addresses the limitations question.  A “DNA complaint” filed within the limitations period is timely.  The court leaves some room to argue that a particular defendant has been prejudiced by resort to a DNA profile charging document.  Important to Mr. Carlson, however, was that he did not move to dismiss the complaint on speedy trial grounds.  Delays that occurred after the initial DNA profile complaint may be addressed on a case by case basis. 

Burglary Statute Does Not Require Proof of Knowing Possession of a Weapon

State v. Garcia-Gutierrez, Minn.S.Ct., 4/2/2014.  There are legal fictions, and then there are legal fictions.  One of them is that the legislature knows what it’s doing, writes what it means.  This lets an appellate court say with undeserved confidence that if the legislature had intended thus and so it would have written thus and so.  Bah.

Mr. Garcia-Gutierrez and a bunch of his buddies broke into a house, stole things, including a locked safe.  Only later, after they were caught, did they learn that there was a gun inside the safe.  The state charged all of them with burglary in the first degree – “possession” of a weapon.  The trial court thought this was ridiculous, that a burglar had to know that he was possessing a weapon, which these guys indisputably did not, in order to be convicted of first degree burglary.  The court of appeals affirmed the trial court’s dismissal of the first degree burglary count.  Read here.

Chief Justice Gildea, for a unanimous court, says, no.  The portion of the burglary statute that elevates second degree to first degree “is silent with respect to the actor’s mental state.”  Rather, the statute only says that the burglar must “possess, when entering or at any time while in the building” a dangerous weapon.  The court bolsters this conclusion by mentioning the opinion that says you don’t have to know that the person you just killed was a peace officer to be convicted of first degree murder of a peace officer, State v. Evans, 756 N.W.2d 854 (Minn. 2008), (which is true even when you didn’t see the guy, State v. Chambers, 589 N.W.2d 466 (Minn. 1999); and the opinion that says you don’t have to know that you are carrying your drugs through a school zone to be convicted possession of narcotics in a school zone, State v. Benniefield, 678 N.W.2d 42 (Minn. 2004). 

So, the lesson here is if you’re going to commit a burglary, don’t take what you can’t see.

Want to Appeal Your Conviction? Have To Stay To Play

State v. Hentges, Minn.S.Ct., 4/2/2014.  Mr. Hentges appealed his conviction for felony failure to pay child support.  While the appeal was pending the trial court scheduled a hearing on an alleged probation violation.  Mr. Hentges failed to appear at the hearing so the state moved to dismiss the appeal under something called the “fugitive-dismissal rule.”  The court of appeals said, no so the state asked the supreme court.  Justice Stras, for six members of the court – Justice Wright taking no part – adopted this rule and threw out the appeal.  Justice Page agreed with adopting the rule but he thought that because the use of the rule is discretionary he would have sent the case back to the court of appeals.

Justice Stras, ah la Justice Scalia, takes us through a history of the development of this rule.  He then informs us that only five states have declined to adopt it:  Hawaii, Michigan, South Dakota, Vermont, and Minnesota.  Only Louisiana and New Mexico have rejected it.  In signing Minnesota up with the adopters of the rule Justice Stras relies on two rationales:  the appellate court’s opinion isn’t enforceable while the guy is on the lamb; and, doing a runner amounts to a waiver or forfeiture of the right of appeal.

3/31/2014: No Published Court of Appeals Criminal Opinions

Juvenile Court Did Not Abuse It’s Discretion in Certifying Juvenile to Adult Court

In the Matter of the Welfare of J.H., Minn.S.Ct., 3/19/2014.  This comes up from the court of appeals.  Read about it here.  Justice Dietzen, for a unanimous court, reverses the court of appeals, which, in turn, had reversed the juvenile court.  Contrary to what the court of appeals had said, in certifying a juvenile to adult court the juvenile court is not required to expressly weigh the seriousness of the alleged offense and the child’s prior record of delinquency separate from the other statutory factors.  Further, the juvenile court is not required to specifically delineate how its determination of these two factors impacted its certification decision.

3/26/2014: No Published Supreme Court Criminal Opinions

Prosecution for Assisting Suicide Survives First Amendment Challenge But Advising and Encouraging Suicide Is Protected Speech

State v. Melchert-Dinkel, Minn.S.Ct., 3/19/2014.  It’s against the law in Minnesota for someone intentionally to advise, encourage, or assist another in suicide.  Mr. Melchert-Dinkel posed on line as a depressed and suicidal young female nurse.  He responded to posts on suicide websites to two individuals.  He encouraged each to hang themselves, falsely claimed that he would commit suicide, and attempted to persuade them to let him watch the hangings via webcam.  The state charged Mr. Melchert-Dinkel with aiding suicide under Minn.Stat. 609.214, subd. 1.  The district court, in a stipulated facts trial, found that Mr. Melchert-Dinkel had intentionally advised and encouraged both individuals to take their own lives.  The court concluded that Mr. Melchert-Dinkel’s communications with these two individuals fell outside protections of the First Amendment.

Justice Anderson, writing for only four members of the court – Justices Wright and Lillehaug took no part and Justice Page dissented – held that the state could prosecute Mr. Melchert-Dinkel for assisting another in committing suicide but not for either encouraging or advising another to do so.  In so concluding, the court rejected the state’s arguments that the statute, in its entirety, falls under each of three exceptions to First Amendment protections:  speech integral to criminal conduct, incitement, and fraud.  So, that left the state to convince the court that it could proscribe protected speech.  This requires proof that the state has a compelling government interest and that the statute is narrowly drawn to serve that interest.  The court easily determined that the state had a compelling interest in preserving human life.  On the second requirement, the court concludes that the statute prohibits helping a targeted person to commit suicide.  This prohibition is sufficiently narrowly drawn to satisfy the second requirement.

Not so with the statute’s prohibition against advising and encouraging another to commit suicide.  Such a prohibition includes having a general discussion with specific individuals or groups of individuals who may be contemplating suicide.  Speech in support of suicide is an expression of a viewpoint on a particular subject and is given the highest First Amendment protection.  As such, the state cannot prosecute someone for expression of the view that a particular person or group of persons ought to commit suicide.  The court basically writes these words – advise and encourage – out of the statute.

Justice Page agreed with the elimination of these words.  He believed that a remand to consider whether Mr. Melchert-Dinkel assisted these suicides was improper and unauthorized.

3/24/2014: No Published Court of Appeals Criminal Opinions

Probable Cause To Have Obtained a Search Warrant For a Breath Test Justifies Criminalizing Suspect Drunk Driver’s Refusal to Submit to Chemical Test

State v. Bernard, Jr., Minn.Ct.App., 3/17/2014.  The state charged Mr. Bernard, Jr. with test refusal after he refused to take a breath test to find out if he was driving under the influence of alcohol.  The trial court dismissed the charge.  The court said that the state could criminalize Mr. Bernard’s refusal to submit to a “search” – the breath test – only if it could show that under the traditional “totality of the circumstances” test those circumstances justified a warrantless breath test.  The trial court concluded that the state could not make that showing and so dismissed the charge.

The court of appeals assumed that the officer would not not have been justified to conduct a warrantless “search” – the breath test.  In other words, the court assumed that there were no exigent circumstances that would dispense with the requirement of getting a warrant.  However, the court then comes at the problem from the other side.  The court goes on to say that “indisputably” the officer would have got that warrant had the application been present to the magistrate.  That makes the officer’s request of Mr. Bernard to submit to the test not just an “appropriate” request, but a “lawful” one.  See State v. Wiseman, 816 N.W.2d 689 (Minn.Ct.App., 2012). 

The court does offer the non-binding opinion that a warrantless breath test cannot be supported as a search incident to arrest; it must also satisfy the exigency requirement. The court ducked the “unconstitutional conditions” argument.

3/12/2014: No Supreme Court Published Criminal Opinions

Risk Level Status, On Which Term of Conditional Release is Determined, Is Not a Fact Required To Be Found By a Jury

State v. Ge Her, Minn.Ct.App., 3/10/2014.  Review Granted, 3/7/2014.  Mr. Her is required to register under the predatory offender laws for convictions of third degree criminal sexual conduct, conspiracy to commit the same, and doing all that for the benefit of a gang.  Upon his release from prison the release assessment committee determined that he was a risk level III offender.  The state subsequently charged Mr. Her will violating the registration requirements.  A jury convicted him of that offense.  Because of his risk level assignment the court tacked on a ten year conditional release term.

Mr. Her argued that the ten year conditional release term was unauthorized because it violated the rules of Apprendi and Blakely because the judge, not a jury found that he was a risk level III offender.  The court of appeals said, no, that this risk level determination was akin to a prior conviction the existence of which a judge can still determine as an exception to Apprendi and Blakely. 

Evidence Sufficient to Support First Degree Murder, Committing Domestic Abuse, Past Pattern

Gulbertson v. State, Minn.S.Ct., 3/5/2014.  A jury convicted Mr. Gulbertson of first degree murder while committing domestic abuse and with a past pattern of abuse.  In this post conviction, first appeal, he complained that the evidence was insufficient to establish a past pattern of domestic abuse, that the jury instructions on past pattern had been incorrect, and that the court had impermissibly admitted evidence of past orders for protection.  Justice Anderson, for a unanimous court, affirms the denial of the post conviction petition, and thus upholds the conviction and sentence.

On the sufficiency argument, Mr. Gulbertson wanted the court to adopt a zero sum approach to “mutual violence” between he and the victim:  bad conduct by one party cancels bad conduct by the other party.  The court isn’t buying into that, falling back on the absence in the statute for such an exception.  Otherwise, the state sufficiently established the “past pattern”. 

The court viewed the instructions “as a whole” and found them to be adequate.  He had complained that the trial court should have restate the definition of “domestic abuse” in its instruction on what a “past pattern of domestic abuse” was.  The trial court had provided such a definition elsewhere in the instructions.

On the admission of the OFP evidence – including the affidavits – to which he made no objection Mr. Gulbertson complained on appeal that he had not had an adequate opportunity to cross examine the victim and that he had not been represented at the OFP proceedings (indeed, he wasn’t there).  Justice Anderson noted that most of the OFP evidence had been admitted through other sources so the OFP evidence was cumulative at worst and did not affect Mr. Gulbertson’s substantial rights.

Court Declines to Adopt “Automatic-Companion Rule” to Justify Pat Search of Passenger

State v. Lemert, Minn.S.Ct., 3/5/2014.  Mr. Lemert was riding shotgun with his supposed buddy, Mr. Anthony, when the cops stopped Mr. Anthony’s truck, intending to arrest him on a drug offense from a couple of days earlier.  An officer pulled Mr. Lemert out of the truck and performed a pat search, which produced drugs.

Mr. Lemert challenged the search.  The trial court denied the suppression motion, concluding that the officers had a reasonable, articulable suspicion that Mr. Lemert was armed and dangerous.  The court of appeals affirmed the trial court’s ruling.  Read about that here.  The court of appeals said that the search was legal because Mr. Lemert was in a truck that had been stopped on suspicion that its driver had recently engaged in “large-scale drug activity.”  This rationale is a riff on what’s called the “automatic-companion rule,” which permits officers to do a pat search of any person who is in the company of someone whom the officers have arrested.

Writing for a unanimous court, Justice Stras slaps down the court of appeals.  He says it’s still a “totality of the circumstances” world.  For that matter, even the state did not jump on board the “automatic companion” rule.

Here, among other things, the cops knew that Mr. Anthony was not a solo drug dealer, knew that he had used this same truck earlier in the day to complete a drug deal, knew that the two had left Anthony’s apartment together, and that Anthony was a felony-level dealer of narcotics.  Lastly, the court has decided that cops know that there is a “substantial nexus” between drug dealing and violence.  State v. Craig, 826 N.W.2d 789 (Minn. 2013).  The “totality of [those] circumstances made the pat search lawful.

3/3/2014: No Published Court of Appeals Criminal Opinions

2/26/2014: No Published Supreme Court Criminal Opinions

2/24/2014: No Court of Appeals Published Criminal Opinions

Post Conviction Petition Defective Because Legal Assertions Don’t Substitute For Factual Allegations

Matakis v. State, Minn.Ct.App., 2/18/2014.  “I’ll gladly pay you Tuesday for a hamburger today.”  Mr. Matakis filed a post conviction petition claiming that his guilty plea had not been knowingly, intelligently and voluntarily made.   Problem was, at least to the court of appeals, he didn’t really recite any “facts” to back that up.  Here’s all that he said:

That the facts and grounds upon which this petition is based are as follows: Petitioner’s plea was not knowingly, voluntarily, and intelligently made where there is reason to question the accuracy of the factual basis underlying the plea and the circumstances under which he pled guilty suggest that it was not voluntarily entered.

Mr. Matakis promised to supply “a later factual affidavit” but after apparently waiting in vain for almost a month for that affidavit the post conviction court tossed the petition.  The court of appeals affirms, observing that “providing a short statement of alleged facts that could be tested at an evidentiary hearing would have sufficed.”  Those alleged facts don’t even have to be credible:  even “implausible factual allegations” would have kept him in court.

2/19/2014: No Published Supreme Court Criminal Opinions

Criminal Child Support Statute Requires Proof of Failure to Provide Both “Care” & “Support”

State v. Nelson, Minn.S.Ct., 2/12/2014.  You know those Ford commercials - "nuts or bolts" - or, more apropos here - "loud or clear" - well that's what's going on here.  In a cacophony of opinions, Justice Stras  has everyone running for the dictionary.  His definitions carry the day over those of Justices Dietzen and Lillehaug.  The result is to gut Minnesota's criminal child support law.  Like, can't be done.  If defendant baby daddy gave the kid a Snickers - or maybe a lot of Snickers, that's going to be the next battle royale - then he's provided the "care" to  escape criminal liability which requires a failure to provide "care and support".  Justices Page, Anderson and Wright join Justice Stras.

The statute here, Minn.Stat. 609.375, subd. 1 requires proof that the alleged offender knowingly omitted and failed to provide both care and support to either a spouse or child.  In this case, it was a child.  Both the state and Mr. Nelson – but not everyone on the court – agreed that “care and support” meant two different things.  Mr. Nelson was in arrears on his monetary child support somewhere north of eighty grand.  The state had argued, and both the trial court and the court of appeals agreed, that this failure to pay was sufficient, standing alone, to support Mr. Nelson’s conviction, a view that Justice Lillehaug adopts.  That is, despite the “and” in “care and support” the state need only prove either one or the other.  Mr. Nelson said, no, “and” means “and” so the state has to prove the failure to provide both care and support. 

When Justice Dietzen, dissenting, hauled out his dictionaries he grabbed something by Bryan A. Garner called The Redbook:  A Manual on Legal Style, (2d ed. 2006).  Mr. Garner lists over one hundred “common legal doublets.”  (You have to read this list:  “null and void”; “lewd and lascivious” – you get the idea).  Justice Stras, however, calls out Justice Dietzen on this because “care and support” is not on the Redbook’s list.  Oops.  Including the third edition of The Redbook.  Hah!

With that, Justice Stras is off and running.  The former Professor is in his element.  And, he delights in making things a lot more complicated.  Notice, for instance, that the statute itself contains what looks like not one but two “legal doublets” (The Redbook be damned):  “omitted and failed” and “care and support”.  To figure out what that means the Justice calls in “DeMorgan’s Theorem”.  Justice Stras ends up with three “reasonable” interpretations of the statute, none of which “is most persuasive.”  He throws up his hands at that point and, applying the “rule of lenity” – as he sees it, but not Justice Lillehaug - goes with Mr. Nelson’s interpretation:  het state has to prove failure to provide both care and support.

Joint & Several Restitution Does Not Require Apportionment of Injuries Among Defendants

State v. Miller, Minn.Ct.App., 2/10/2014.  Mr. Miller and a Mr. Sandberg did a beat down on a Mr. Montplaisir.  It had something to do with Mr. Montplaisir accusing Mr. Sandberg of “sexual improprieties” towards an unnamed woman whose exact relation to either Mr. Miller or Mr. Sanadberg – or Mr. Montplaisir come to that - isn’t disclosed.  Mr. Montplaisir’s medical treatment left him owing some twelve grand, part of which he owed and the rest was on the insurance carrier.  Both wanted their money.

Mr. Miller pled guilty to disorderly conduct, yes, disorderly conduct.  The court stayed his sentence and ordered him to pay the twelve grand, joint and several with Mr. Sandberg.  Mr. Miller objected to this restitution order for a number of reasons.  One was that the state had to divvy up the blows by the two men and then assign a monetary value to the injuries from those blows.  This, Mr. Miller, explained, was required because restitution law says that the court should order restitution only for losses the defendant “directly caused” by his offense conduct.  Needless to say the court of appeals did not buy into this sophistry.  Mr. Montplaisir’s right to restitution trumps any rights of Mr. Miller and Mr. Sandberg to a blow by blow accounting.

Mr. Miller also complained that the trial court did not adequately consider his ability to pay the money.  The court pronounces that the trial court must account for a defendant’s ability to pay but provides absolutely no concrete guidance on just how the court is to do that.  The message seems to be that so long as the court says the magic words, “I considered the defendant’s ability to pay.” that leaves the court free to pretty much do whatever it wants.  About the only restriction is that there must be something in the record – a presentence investigation report will due – over which the court can recite the mantra, “I considered the defendant’s ability to pay.”

Post Conviction Petition Either Untimely or Without Merit

Erickson v. State, Minn.S.Ct., 2/5/2014.  Mr. Erickson filed this second post conviction petition in 2012, long after the statutory limitations period had expired.  To stay in court, he had to establish an exception to that limitations period.  He went with newly discovered evidence and “interests of justice.”  Neither worked.

Mr. Erickson said that his “newly discovered evidence” was a letter from appellate counsel that said that he had no recollection why  he raised (or didn’t raise) appellate issues back some years ago.  Justice Wright, for a unanimous court, said that this was not “newly discovered evidence.”  For his “interests of justice” argument, Mr. Erickson said that the delay in filing this second petition was due to his limited educational attainment and his pro se status.  Justice Wright pointed out, however, that neither of these impediments prevented him from having filed his first petition, and to have done so in a timely manner. 

Mr. Erickson made a couple of other runs at relief, to no avail, either because of the limitations statute or having been previously presented. 

Whether Trial Court Is Required to Consider Comparative Demographics of Original and Transfer Jurisdiction in Change of Venue Determination Remains Unanswered

State v. Fairbanks, Minn.S.Ct., 2/5/2014.  A jury convicted Mr. Fairbanks of first degree murder of a peace officer, and of various other crimes.  Mr. Fairbanks shot Mahnomen County Sheriff’s Deputy Dewey.  He and his buddy then got into a shoot out with other deputies until eventually the two surrendered.  The deputy did not die for another eighteen months.

Mr. Fairbanks asked the trial court to move the trial out of Mahnomen County.  The state did not object to this request.  The trial court moved the trial to neighboring Polk County.  Mr. Fairbanks, who is Native American, didn’t like this choice because the percentage of Native Americans in Polk County is considerably lower than is the percentage of Native Americans in Mahnomen County.   Now, Mr. Fairbanks didn’t complain about the different demographics in his transfer papers; he only complained about prejudicial publicity.  Justice Lillehaug, writing for a unanimous court, said that the trial court adequately took care of any pretrial publicity in moving the trial out of Mahnomen County and over to Polk County.  That being the case, then the court doesn’t have to answer the question whether racial demographics is a proper factor to add into the mix of factors that the court has previously identified:  safety and convenience of a defendant, traveling distances and facilities for parties and witnesses,  and  the technology and security available at the court house.

Apparently, there is a common law rule that an accused can’t be prosecuted for murder when the victim has died more than a year and a day after the event that caused the death.  The court says that if there ever were such a rule in Minnesota then the adoption of the penal code back in the ‘60’s abrogated it.

Mr. Fairbanks complained about the admission of some of the autopsy photographs and of a “spark of life” photo of the deputy.  The court made short work of these complaints.  Photographs that are accurate, relevant and not prejudicial are admissible, even the gruesome ones.  So long as the “spark of life” photo was not an attempt to invoke undue sympathy – assuming that one can make such a determination – then it’s admissible as well.  And because the trial court had already denied the defense in limine motion to exclude these photographs it was alright for the prosecutor to have shown them in opening statement.

Award of Attorney’s Fees Following State Appeal of Pretrial Order Withstands Statutory Challenge

State v. Williams, Minn.S.Ct., 2/5/2014.  This is not really a criminal case.  It’s about turf, the court’s and the legislature’s.  Oh, and money.

The state appealed the trial court’s ruling suppressing evidence.  The court of appeals reversed the order.  Counsel for Mr. Williams then requested attorney’s fees for thirty some hours of work at $120.00 an hour.  The state said that was okay, except for the last nine plus hours which should be paid at only $50.00 an hour.

The state relied upon a 2012 statute that instructed chief judges to confer with designated stakeholders and then set a reasonable hourly rate for attorney’s fees in appeals by the state.  The chief judge set the rate at fifty bucks an hour.  Mr. Williams’ lawyer did about nine hours of work on the appeal after the judge set that rate.

The state’s first argument was that this statute stripped the court of the ability to review the hourly rates that district courts establish.  Chief Justice Gildea, writing for a unanimous court, was having  none of that.  Because this statute says nothing about appellate review the court is not about to assume that the legislature took that review away in this instance. 

Turning to the merits, here the district court made no record of just how this fifty bucks rate came into existence.  So, absent a record, the court can’t ascertain whether low balling the hourly rate was an abuse of discretion.  As a result, the trial court’s award of attorney’s fees at the $120.00 hourly rate stands.  Whether an appellate court can upset an hourly rate set by the district court – either because it’s an unreasonable rate or because the record doesn’t support it – is left for another day.

2/3/2014" No Published Court of Appeals Criminal Opinions