State v. Fischer

233 N.W.2d 560 (1975)

STATE of Minnesota, Appellant, v. Eugene L. FISCHER, Respondent.

No. 45789.

Supreme Court of Minnesota.

August 22, 1975.

Pierre N. Regnier, City Atty., Thomas R. Hughes and Paulette K. Flynn, Asst. City Attys., St. Paul, for appellant.

*561 Cochrane & Bresnahan and James G. Roban, St. Paul, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

This is an appeal by the state pursuant to Minn.St. 632.11, subd. 1(1), from an order of the St. Paul municipal court dismissing a complaint on the ground that the state, by its delay in prosecution, denied defendant his constitutional right to a speedy trial. We grant a motion by defendant to dismiss the appeal because the appeal is untimely.

Minn.St. 632.13(2) requires the state to file its notice of appeal within 5 days after entry of the order from which the appeal is taken. Here the order was filed on Tuesday, February 25, 1975, and the notice of appeal entered on Tuesday, March 4, 1975. Under Minn.St. 645.15, if the last day of the time period within which appeal must be taken is a Sunday or a legal holiday, that day shall be omitted from the computation. Here, the fifth day was Sunday, March 2, 1975. Therefore the state could have complied with the statute by filing on or before March 3, 1975, but failed to do so.[1] Consequently the appeal is dismissed. State, City of St. Louis Park, v. Brown, 297 Minn. 109, 209 N.W.2d 920 (1973).

Respondent is allowed attorneys fees in the sum of $350.

Appeal dismissed.

[1] Rule 34.01, Rules of Criminal Procedure, effective July 1, 1975, provides that "[w]hen a period of time prescribed or allowed is seven days or less, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation." Under the new rules, this appeal would be timely, the fifth day being March 4, 1975.