Richard John LaFountaine, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-661

 

 

Richard John LaFountaine, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed December 21, 2004

Affirmed

Halbrooks, Judge

 

 

Aitkin County District Court

File No. K6-00-298

 

 

Richard John LaFountaine, MCF Stillwater, OID #203751, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Thomas F. Murtha IV, Aitkin County Attorney, 217 Second Street Northwest, Aitkin, MN 56431 (for respondent)

 

 

 

            Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges an order denying his postconviction petition, arguing that (1) the district court abused its discretion in admitting DNA evidence, (2) the prosecutor manipulated appellant into waiving his speedy-trial rights, (3) appellant's counsel on direct appeal was ineffective in failing to raise this issue, and (4) the medical examiner who conducted the autopsy had a conflict of interest because he is a brother-in-law of the prosecutor.  Because the appeal is untimely, we affirm.

FACTS

            Appellant was convicted by a jury of second-degree murder and first-degree burglary.  State v. LaFountaine, No. C4-01-1909, 2002 WL 31056639, *1 (Minn. App. Sept. 17, 2002), review denied (Minn. Dec. 17, 2002).  The district court sentenced him on both counts, departing upwardly from the presumptive sentence for the murder.  Id.  Appellant challenged the sufficiency of the evidence to support the convictions, the failure of the court to give a lesser-included-offense instruction, and the upward departure from presumptive sentence.  Id.  This court affirmed.  Id.

            Appellant then filed a petition for postconviction relief with the district court.  The court denied this petition on June 11, 2003, finding that the speedy-trial issue was barred because it was known to appellant at the time of his direct appeal and that the remaining issues were conclusory and without merit.  Appellant did not immediately appeal, but instead filed a second petition demanding disclosure by the state of certain exhibits used at trial and in the grand-jury proceedings.  This petition was denied on March 18, 2004.  This appeal follows.

D E C I S I O N

            The issues raised by appellant are those contained in his first petition for postconviction relief.[1]  Pursuant to Minn. R. Crim. P. 28.02, "[a]n appeal from an order denying a petition for postconviction relief shall be taken within 60 days after entry of the order."  Minn. R. Crim. P. 28.02, subd. 4(3).  Appellant's first petition was denied by the district court on June 11, 2003.  Thus, he had until August 10, 2003, to file an appeal.  An appealable order is final upon expiration of the deadline for appeal, even if it is wrong.  Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966).  Because this appeal was not filed until April 16, 2004, it is untimely.

            Affirmed.

[1] Because the discovery issue raised in appellant's second petition is not presented on appeal, we do not consider it here.