State v. Schanus

431 N.W.2d 151 (1988)

STATE of Minnesota, Respondent, v. Michael E. SCHANUS, Appellant.

No. C7-88-2040.

Court of Appeals of Minnesota.

November 8, 1988.

*152 Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, James C. Backstrom, Dakota County Atty., Robert King, Jr., Asst. Dakota County Atty., Hastings, for respondent.

C. Paul Jones, State Public Defender, Cathryn Middlebrook, Asst. Public Defender, Minneapolis, for appellant.

Considered at Special Term and decided by WOZNIAK, C.J., and FORSBERG and SCHUMACHER, JJ., without oral argument.

WOZNIAK, Chief Judge.

Schanus timely appealed his felony conviction. The state filed a notice of review after the time for appeal had expired, challenging a sentencing departure. Schanus moved to dismiss the notice of review and the state did not respond.

The state may appeal from a sentence "according to the rules of criminal procedure[.]" Minn.Stat. § 244.11 (1986). Minn. R.Crim.P. 28.05, subd. 1(1), which governs sentencing appeals, requires that any appeal from a sentence be filed "within 90 days after judgment and sentencing."

The state did not timely file any appeal from the sentence. Instead, it filed a notice of review more than 90 days after Shanus was sentenced. A notice of review is authorized in civil appeals, and it may be served and filed by a respondent within 15 days after the appellant serves the appeal papers. Minn.R.Civ.App.P. 106.

As noted, the criminal rules govern review of the state's challenge to a sentence. The criminal rules do not authorize such challenges by a notice of review. A defendant may file a cross-appeal within ten days after the state serves an appeal from a pretrial order. Minn.R.Crim.P. 28.04, subd. 3. No such cross-appeal or notice of review is permitted the state when a defendant appeals from a conviction. Cf. Minn.R.Crim.P. 28.02. The state's challenge to a sentence is barred where it "did not appeal the sentence as it could have under Minn.R.Crim.P. 28.04." State v. Marshall, 411 N.W.2d 276, 281 (Minn.Ct. App.1987), pet. for rev. denied (Minn. Oct. 26, 1987).

NOTICE OF REVIEW DISMISSED.