This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-1865

 

Stephen Daniel Gifford,
petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

 

Filed May 14, 2002

Reversed and remanded

Peterson, Judge

 

 

Ramsey County District Court

File No. KX992928

 

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This appeal is from an order denying appellant Stephen Daniel Gifford’s petition for postconviction relief because Gifford’s claims were untimely.  We reverse and remand.

FACTS

            Gifford was charged with theft of a motor vehicle in violation of Minn. Stat. § 609.52, subd. 2(17) (1998).  The vehicle was a truck taken from Lawn Turf Corporation.  A variety of lawn-care equipment was in the truck when it was taken.  Gifford pleaded guilty pursuant to a plea agreement that called for a guidelines sentence and restitution if necessary.  Gifford admitted that he borrowed the truck from an acquaintance and that he suspected the truck was stolen when he borrowed it. 

            A representative from American States Insurance Company requested restitution for $2,913.55 worth of lawn-care equipment and other Lawn Turf Corporation property that was stolen or damaged.  At sentencing on December 28, 1999, the state presented a request for restitution in the amount of $2,913.55 and a supporting affidavit.  Defense counsel asked for a continuance of the restitution issue because Gifford disputed the amount.  The trial court sentenced Gifford and ordered him to pay $2,913.55 in restitution but also stated that if Gifford disputed the restitution, he could consult with his attorney and the court would grant another hearing on the matter.

            Within 30 days after sentencing, Diane Alshouse, the public defender who represented Gifford at the plea hearing, contacted the court clerk about a clerical error regarding the amount of restitution, and the amount was corrected from $21,913.55 to $2,913.55.  On February 29, 2000, Alshouse wrote to Gifford and told him about the clerical correction.

            Gifford contacted the Office of the State Public Defender on August 21, 2000, seeking assistance in scheduling a restitution hearing to contest the amount of restitution, and on February 1, 2001, Gifford appeared in court for a restitution hearing.  Alshouse argued that there was no evidence of what items were in the truck when it was stolen.  The state argued that the motion challenging restitution was untimely because it was not filed within 30 days of sentencing but conceded that $543.13 was incorrectly included in the restitution order.  Alshouse admitted that Gifford had notified her of his desire to contest restitution within 30 days of sentencing.  The court found the request for a restitution hearing untimely, but nevertheless, reduced the restitution amount by $543.13 to $2,370.42.

            Alshouse acknowledged the court’s conclusion that the request was untimely and asked for another restitution hearing to present evidence from the owner of the stolen truck as to what equipment was in the truck when it was stolen.  The court responded:

Well, I do think that I have the discretion to amend a restitution order, if we were to find that this $2,370.42 included items that weren’t in the truck.  So I would allow you to raise that issue if you have evidence to establish that that number is in error.

 

            On February 15, 2001, Gifford filed a postconviction petition requesting a restitution hearing and vacation of the restitution order.  Gifford alleged that he was prejudiced by “defense counsel’s failure to challenge the award of restitution in a timely manner.”  The postconviction court found only that Gifford’s claims were untimely and denied his petition in its entirety. 

D E C I S I O N

The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.

 

Black v. State, 560 N.W.2d 83, 85 (Minn. 1997) (citations omitted).

Minn. Stat. § 611A.045, subd. 3(b) (2000), provides:

An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later * * * .  A defendant may not challenge restitution after the 30-day time period has passed.

 

Gifford argues that the postconviction court erred by failing to consider his ineffective-assistance-of-counsel claim when it dismissed his claims as “untimely.”  The state argues that Gifford failed to appeal from the restitution order, and he may not revive his right to raise an issue that is barred either for failing to raise it in a timely manner or because he failed to appeal by merely recasting the issue as a claim of ineffective assistance of counsel. 

Gifford is not merely recasting his restitution challenge as a claim of ineffective assistance of counsel.  Restitution was an issue at sentencing, and the court told Gifford that if he disputed restitution, he could consult with his attorney, and the court would grant a hearing on the matter.  Gifford apparently consulted with his attorney, but no request for a hearing to challenge restitution was made within the 30-day statutory period.  When a hearing was requested after the 30-day period expired, the court found the request untimely, and Gifford’s restitution challenge was not considered.

When Gifford petitioned for postconviction relief, he did not ask for an opportunity to present an issue that had already been presented to the court; he asked for an opportunity to present the merits of his restitution challenge for the first time because his counsel’s failure to challenge restitution in a timely manner prevented him from obtaining a review on the merits.  The court dismissed Gifford’s petition because his claims were untimely without addressing whether it was ineffective assistance of counsel that caused the claims to be untimely.  

Unless the petition and the files and records of the [postconviction] proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition and response thereto, and promptly determine the issues, make findings of fact and conclusions of law with respect thereto, and either deny the petition or enter an order granting appropriate relief.

 

Minn. Stat. § 590.04, subd. 1 (2000). 

The petition and the files and records of the postconviction proceeding do not conclusively show that Gifford is not entitled to relief.  The postconviction court abused its discretion by dismissing Gifford’s petition without determining whether ineffective assistance of counsel caused Gifford’s claims to be untimely.  Therefore, we reverse and remand to permit the postconviction court to address Gifford’s ineffective-assistance-of-counsel claim.

            Reversed and remanded.