State v. Larson

254 N.W.2d 380 (1977)

STATE of Minnesota, Appellant, v. Terry Joe LARSON, Respondent.

No. 47400.

Supreme Court of Minnesota.

May 13, 1977.

Warren Spannaus, Atty. Gen., St. Paul, David J. Twa, Asst. County Atty., Mankato, for appellant.

Charles A. Adamson, Mankato, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

This is an appeal by the state pursuant to Rule 29.03, Rules of Criminal Procedure, from a pretrial omnibus hearing order of the district court denying a motion by the defendant to dismiss a felony prosecution on the ground that he was not brought before the magistrate within 36 hours after his arrest as required by Rule 4.02, subd. 5(1), Rules of Criminal Procedure. The district court, although refusing to dismiss the case, ruled that the state had violated the 36-hour rule and that the proper sanction is to exclude any evidence obtained improperly on account of the delay.

*381 The order denying defendant's motion to dismiss obviously was not adverse to the state. We accordingly have no occasion to decide the correctness of the trial court's interpretation of the rule, except to note that the relevant rules for computation of time have since been amended, effective July 1, 1977.

The order suppressing any evidence obtained during that period does not in a practical sense appear to be adverse to the state, for there is nothing in this record to suggest that there was any evidence which would actually be suppressed. We accordingly have no occasion to now determine whether suppression is an appropriate sanction for violation by the 36-hour rule.

Defendant, having filed no brief on this appeal, is not entitled to any statutory award for attorneys fees.

Appeal dismissed.