Filing a Postconviction Appeal
This tab will explain how you can file an appeal from a district court order denying a postconviction petition. You should carefully review this information and complete every step.
Postconviction Appeal Packet and Checklist
NOTE: This page only covers postconviction appeals to the Minnesota Court of Appeals. If you were convicted of first-degree murder and are appealing an order denying postconviction relief from that conviction, you must file an appeal with the Minnesota Supreme Court
. If you are filing any other type of criminal appeal, see the tab on this page entitled "Criminal Appeal."
Time to Appeal
In general, you have 60 days to appeal to the Court of Appeals after the district court files an order denying a petition for postconviction relief. See
Minn. R. Crim. P. 28.02, subd. 4(3)(c). Appeals to the Court of Appeals in other types of criminal cases, including direct appeals of felony or misdemeanor convictions, have very different filing deadlines. You must read rule 28.02, subdivision 4(3) of the Minnesota Rules of Criminal Procedure
(abbreviated "Minn. R. Crim. P.") to confirm the deadline that applies to your appeal.
Your appeal time begins to run on the date that the district court administrator files the order; not when you receive a copy of the order. See
Minn. R. Crim. P. 33.03. The Court of Appeals can extend the appeal deadline for up to 30 additional days, but you must make a motion for an extension, and you must show "good cause" to get an extension. See
Minn. R. Crim. P. 28.02, subd. 4(3)(g).
To figure out the deadline for filing and serving documents, apply these rules:
- Do not count the day of the event that starts the time period (the date of filing of the district court's order; the date of service of the respondent's brief), but start counting the next day.
- Continue counting calendar days. Do not skip weekends or legal holidays.
- If the last day of the period falls on a Saturday, Sunday, or legal holiday, then the deadline is the next business day.
Eligibility for Public Defender
If you had a previous appeal involving the same conviction, and you were represented by an attorney from the Office of the Minnesota Appellate Public Defender in that appeal, you may not be entitled to an appointed attorney for postconviction proceedings. See
Minn. Stat. § 611.25, subd. 1(a)(2). If this is your first appeal on this conviction, and you meet certain financial eligibility reuqirements, you may be entitled to a public defender on appeal. You must apply to:
Office of the Minnesota Appellate Public Defender
540 Fairview Avenue North, Suite 300
St. Paul, MN 55104
You, as the appealing party, are called the appellant. The other party in a postconviction appeal is the State of Minnesota and is called the respondent. The State of Minnesota is represented by the county attorney and the Minnesota Attorney General. The title of a postconviction appeal is as follows: "(Your name), petitioner, Appellant, vs. State of Minnesota, Respondent."
The Notice of Appeal (Form 103A) must show: (1) who is filing the appeal; (2) the names, addresses, and phone numbers of all attorneys who have appeared in the case; (3) the date of the postconviction order you are appealing; and (4) the court where your appeal is being filed (Minnesota Court of Appeals).
The Statement of the Case (Form 133) provides general information about your case and is used by the Court of Appeals to process and schedule your case. You must follow Form 133 and Minn. R. Civ. App. P. 133.03 and answer questions about: (1) the date of the order you are appealing; (2) the rule or statute that you believe authorizes you to appeal, see
Minn. R. Crim. P. 28.02; (3) the issue you intend to raise on appeal (only a general discussion is necessary, because you will have the chance to present your arguments in more detail later); and (4) whether a transcript is required for your appeal. The statement of the case asks whether you are requesting oral argument, but oral argument will not be allowed if any party does not have an attorney.
Notice of Appeal Form
Statement of the Case Form
No filing fees are required to file a postconviction appeal under Minn. Stat. § 590.06.
“Filing” means giving documents to the Office of the Clerk of the Appellate Courts. Parties without an attorney may file documents by any of the following methods:
- By hand-delivering them to the Clerk of the Appellate Courts during business hours (8 a.m. to 4:30 p.m. weekdays),
- By mailing the documents to the Clerk of the Appellate Courts, addressed to:
Clerk of the Appellate Courts
305 Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155 (651) 296-2581
- By submitting them electronically through the appellate courts’ e-filing system, E-MACS. Parties who do not have an attorney are not required to use E-MACS, but they are allowed to do so (All attorneys are required to use E-MACS and cannot file documents by mail or by hand-delivery to the Clerk of the Appellate Courts).
For filing by postal mail, a document will be considered timely if it is deposited in the U.S. Mail by the deadline with correct postage and the correct address, even though the Clerk’s Office will not receive the document on the day you deposit it in the mail.
For information about electronic filing and to submit documents electronically, go to the Clerk of Appellate Courts’ webpage
Filing by facsimile (fax) or other electronic means currently is not allowed.
Important: You must also file a copy of your notice of appeal with the district court administrator of the county in which the order you are appealing was filed.
Any time you submit a document to the Clerk of Appellate Courts for filing, a copy must also be provided to all other parties at or before the time of filing. This is called “service.”
If a party has an attorney, you must
serve the attorney
rather than the party. If a party does not have an attorney, you may serve that party directly. Because the State of Minnesota always is represented by the Minnesota Attorney General and the county attorney, you must also serve those attorneys.
If you choose to file electronically, you can serve the respondents electronically as well, if the respondents are registered in the appellate courts’ e-filing system, E-MACS. Information about electronic service can be found on the Clerk of Appellate Courts’ webpage.
If you, as a party without an attorney, choose to file documents by postal mail or delivery in person, you can also accomplish service by postal mail, in person, by e-mail (with the consent of the recipient) or by fax (with the consent of the recipient). If your document is being served in person, you cannot be the one to serve it. It must be served by someone who is 18 years or older and not a party to the appeal. Service by mail is accomplished by depositing the documents, correctly addressed, in the U.S. Mail, with adequate first-class postage.
No matter what method of service you use, you must also submit proof of service to the Clerk’s Office.
Proof of Service
Every document submitted to the Clerk of Appellate Courts for filing must be accompanied by a form stating that the document was served on the other parties to the appeal. This is called “proof of service.” If you use E-MACS to serve papers on the other parties or attorneys to the appeal, no separate proof of service is required, because the Clerk of Appellate Courts will receive information about service along with the e-filing. If you serve papers personally, by postal mail, or by another delivery method (with the consent of the recipient), separate proof of service is required. Usually, proof of service is (1) a notarized Affidavit of Service or (2) a Certificate of Service. A less frequently used third option for proof of service is a written admission by the person who was served that the document was received. See
Minn. R. Civ. App. P. 125.04.
The person who served the document in person or by mail must complete the Affidavit of Service or Certificate of Service, which must include a description of the documents that were served, the date and time of service, the method of service (by mail, in person, or other method with consent), the name of the person who was served, and the address to which any documents served by mail were sent. The affidavit or certificate of service must be signed by the person who served the documents.
Affidavit of Service.
An affidavit of service must be signed in front of a notary by the person who served the document. The notary must also sign and date the document. Notary services are available at many financial institutions for a small fee. The Office of the Clerk of the Appellate Courts will notarize an affidavit of service at no charge.
Certificate of Service.
A certificate of service does not need to be notarized. A certificate of service must contain a statement by the person who signs the certificate that the person declares, under the penalty of perjury, that everything stated in the document is true and correct. The certificate must show the date of signing and the county and state where the certificate was signed.
Affidavit of Service by U.S. Mail Delivery
Affidavit of Service by Personal Delivery
Certificate of Service by U.S. Mail Delivery
Certificate of Service by Personal Delivery
You may file one affidavit of service or certificate of service listing multiple documents if you serve those documents on the same date and on the same parties. However, you will probably need to file and serve documents on different dates over the course of your case. You should make extra copies of the form because you must prepare one every time you submit documents for filing.
The Court of Appeals will obtain the district court file, which includes motion papers and documents filed with the district court. If you requested and received an evidentiary hearing before the district court on your petition for postconviction relief (Minn. Stat. § 590.04), any testimony, arguments, or evidence that was submitted at that hearing will be part of the record on appeal. A transcript is a typed record of what the parties, attorneys, and district court judge said at the hearing.
The parties must order a transcript for the appeal if they want to make arguments about what was said at the hearing. See
Minn. R. Crim. P. 28.02, subd. 8; Minn. R. Civ. App. P. 110.01. If you don't know who the court reporter was or how to contact the court reporter, you can get help from district court administration
for the county where your hearing took place.
Any party that orders a transcript must work with the court reporter to fill out and file transcript certificate
. This form tells the Court of Appeals that you have requested the transcript and will pay the court reporter (unless a judge has granted a fee waiver
for this cost). The certificate must include:
(1) The date that you requested the transcript from the court reporter
(2) An estimated date that the court reporter will complete the transcript, deliver it to the parties, and file it with the district court
(3) Your signature (if you are acting as your own attorney)
(4) The signature of the court reporter
The court of appeals cannot consider new evidence on appeal, and the arguments in your brief must be based on the evidence you presented in the district court.
The brief is your written argument on appeal. You must file five copies of your brief with the Clerk of the Appellate Courts (four bound and one unbound) and serve two copies on the attorneys for each respondent. See
Minn. R. Civ. App. P. 131.03.
You must also file proof of service for the brief with the Clerk of the Appellate Courts. (See
"service" and "proof of service" above.)
If you received an evidentiary hearing in the district court on your postconviction petition and ordered a transcript of that hearing, you must serve and file your appellant's brief within 63 days after the date that the court reporter mailed the transcript to you. See
Minn. R. Crim. P. 28.02, subd. 10; Minn. R. Crim. P. 34.04. If you did not have an evidentiary hearing in the district court and no transcript will be prepared for appeal, then you must serve and file your brief within 60 days of filing the notice of appeal. See
Minn. R. Crim. P. 28.02, subd. 10. The court will not remind you of this deadline.
The appellant must file a brief explaining why the district court's decision should be reversed, or the appeal will be dismissed. See
Minn. R. Civ. App. P. 142.02.
There are three types of briefs:
- a formal brief, which must be bound and include a table of contents, a statement of the legal issues, a statement of the case and the facts, an argument, a conclusion, and an addendum (see Minn. R. Civ. App. P. 128.02, Minn. R. Civ. App. P. 130.02);
- an informal brief, which may be stapled, and includes a written argument and addendum (see Minn. R. Civ. App. P. 128.01, subd. 1); or
- a short letter argument that supplements written arguments submitted to the district court. This type of brief can be used only when written arguments were filed in the district court in support of the postconviction petition. When it is used, it may be stapled (not formally bound by a printer), and it must include an addendum (see Minn. R. Civ. App. P. 128.01, subd. 2).
Many pro se postconviction appellants file an informal brief. Every appellant's brief, no matter what form used, must include an addendum. The addendum must include, at the least, a copy of the district court order being appealed. See
Minn. R. Civ. App. P. 130.02.
Time Extensions or Other Requests (Motions)
If you cannot serve and file your brief by the deadline, or if you want some other type of relief from the Court of Appeals, you must serve and file a written motion. Any motion for an extension should be served and filed before the deadline that you are seeking to extend.
The requirements for a motion are found in Minn. R. Civ. App. P. 127. The motion must state the relief requested, the reasons for wanting relief, and the authority (cases, statutes, or rules) for the request. You must serve the motion on the attorneys for respondent. You must also file proof of service for the motion and one signed motion with the Clerk of the Appellate Courts.
How Your Case Will be Decided
After the parties have filed their briefs, the appeal will be scheduled for consideration by a panel of three judges. If you are not represented by an attorney, the Court will not allow oral arguments. See
Minn. App. Spec. R. Pract. 2.
The Clerk of the Appellate Courts will send out a notice when the appeal has been assigned to a panel, with the names of the judges and the date that the judges will consider the case.
The Court of Appeals will generally file a written decision on a postconviction appeal within 90 days of the nonoral conference or oral arguments.
Any party can request further review from the Minnesota Supreme Court within 30 days after the filing of the Court of Appeals decision. See
Minn. R. Crim. P. 29.04, subd. 2.
Clerk of the Appellate Courts
305 Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr. Boulevard
St. Paul, MN 55155
8 a.m. - 4:30 p.m., Monday - Friday
NOTE: The Clerk's Office can answer questions about the Court's procedures and rules, but cannot fill out the forms for you or give you any legal advice about your case.