This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Colin A. Petersen,



Filed October 15, 2002


Gordon W. Shumaker, Judge

Concurring specially, Randall, Judge


Hennepin County District Court

File No. 93017841



Paul D. Baertschi, Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2224 (for appellant)


Phuong-Uyen Campbell, Hauer, Farigone, Love, Landy & McEllistrem, P.A., 5901 South Cedar Lake Road, Minneapolis, MN 55416 (for respondent)


Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N




            Appellant challenges the district court’s order granting respondent’s petition for expungement.  Appellant argues that the proceedings were not resolved in respondent’s favor, so expungement is not permitted under Minn. Stat. § 609A.02, subd. 3 (Supp. 2001).  Because the proceedings were not resolved in respondent’s favor and respondent did not meet the legal threshold for expungement under the applicable law, we reverse.



            On June 8, 1993, respondent Colin A. Petersen, then 19 years old, pleaded guilty to felony theft of a motor vehicle.  The district court stayed the imposition of sentence, ordered restitution, and placed Petersen on probation.  Petersen made restitution, and the court discharged him from probation on February 28, 1996.

Petersen later moved for the expungement of all records of his arrest, conviction, and sentence.  Hennepin County filed a memorandum in opposition to the motion.  Appellant City of Maple Grove informed the district court by letter that it joined the county in opposing the motion.  The court heard the motion on January 15, 2002.  Neither the county nor the city appeared for the hearing.

The district court granted the motion under Minn. Stat. § 609A.03 (2000 & Supp. 2001) and ordered the sealing of not only court records but also records maintained by the Maple Grove police department and the Maple Grove city attorney.  The city appealed.



1.         Timeliness

            Petersen argued in his brief that the city’s appeal is not timely.  He withdrew this issue at oral argument.  Yet, “[t]his court lacks jurisdiction to consider an appeal which is not timely served and filed.”  State by Humphrey v. Certified Servs., Inc., 432 N.W.2d 494, 495 (Minn. App. 1988).  Thus, despite the withdrawal of the timeliness issue, we are required to determine whether we have jurisdiction.   Our independent review of the record and the law indicates that the appeal is timely and that this court has jurisdiction to hear the appeal.

Unless a different time is provided by statute, an appeal may be taken from * * * an appealable order within 60 days after service by any party of written notice of its filing.


Minn. R. Civ. App. P. 104.01, subd. 1.  An expungement order may be appealed “within 60 days of service of notice of filing of the order.”  Minn. Stat. § 609A.03, subd. 9 (2000).  The statute provides that the district court administrator must send a copy of the expungement order “to each agency and jurisdiction whose records are affected * *  *.”  Minn. Stat. § 609A.03, subd. 8 (2000).  But the statute does not specify whether the notice of filing the order must be served by the district court administrator or by a party to limit the appeal time.

Because the statute does not provide otherwise, we hold that the appeal period is triggered upon service of notice by a party, rather than by the court administrator.  We base our conclusion on the analysis in In re Malchow’s Estate, 133 Minn. 20, 157 N.W. 709 (1916).  That case involved a probate appeal statute.  Id. at 21, 157 N.W. at 710.  The statute limited the appeal period to 30 days after notice of the order, judgment, or decree appealed from.  Id. at 22, 157 N.W. 710 (quotation omitted).  The supreme court held that the court’s notice of the order did not start the appeal time; instead, the appeal period would commence only after a party served notice of the order.  Id.  The court noted that this construction of the statute would provide “certainty both as to the fact and time of service * * *.”  Id. at 23, 157 N.W. at 710.

            Because Minn. Stat. § 609A.03, subd. 9, does not specify who is to serve the notice of filing the order, we find the analysis in Malchow’s Estate persuasive.  Applying that analysis and Minn. R. Civ. App. P. 104.01, subd. 1, we hold that the time for appealing an expungement order under Minn. Stat. § 609A.03 (Supp. 2001 & 2000) does not commence until a party to the proceeding serves notice of the order from which the appeal is taken.  There was no such service here.  The appeal is timely.

2.         Whether the district court properly expunged respondent’s records

            The city argues that the district court did not have authority as a matter of law to order it to expunge the city’s records.  The district court enjoys “both statutory and inherent powers” to expunge criminal records.  State v. Davisson, 624 N.W.2d 292, 295 (Minn. App. 2001), review denied (Minn. May 15, 2001).  The district court expunged Petersen’s records solely under its statutory authority set forth in Minn. Stat. § 609A.02, .03 (2000 & Supp. 2001).

            The construction and interpretation of a statute is a question of law, which this court reviews de novo.  State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000).  Minn. Stat. § 609A.02, subd. 3, states that

a petition may be filed * * * to seal all records relating to an arrest, indictment, or information, trial, or verdict * * * if all pending actions or proceedings were resolved in favor of the petitioner.

This requirement is a

legal threshold that must be met before a petitioner can have his need for expungement weighed against “the interests of the public and public safety.”


Ambaye, 616 N.W.2d at 258 (citing Minn. Stat. § 609A.03, subd. 5(b)).  If the legal threshold is met,

the court shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.


Minn. Stat. § 609A.03, subd. 5(b).  The threshold issue is whether the proceedings were resolved in Petersen’s favor, since it is a statutory condition precedent to an expungement.

            “Whether all proceedings were resolved in petitioner’s favor is a question of law this court reviews de novo.”  Davisson, 624 N.W.2d at 295.  Petersen pleaded guilty to a felony.  Even though imposition of sentence was stayed and Petersen was discharged from probation, neither the charge nor the conviction was ever dismissed or vacated.   Thus, the proceedings were not resolved in Petersen’s favor.  See Ambaye, 616 N.W.2d at 259 (concluding that the term “in favor of” “includes verdicts of not guilty and voluntary dismissals, and does not include resolutions where the defendant pleaded guilty”); City of St. Paul v. Froysland, 310 Minn. 268, 275-76, 246 N.W.2d 435, 439 (1976) (concluding that the statute was not intended to protect those who pleaded guilty); Davisson, 624 N.W.2d at 295-96 (concluding that “a stay of adjudication does not yield a resolution in favor of the defendant;” a proceeding can be determined in the petitioner’s favor if “there [is] no valid finding of guilt – either by plea or verdict * * * ”); State v. M.B.M., 518 N.W.2d 880, 883 (Minn. App. 1994) (concluding that a dismissal of a complaint after pleading guilty is not a determination in favor of the accused).  The district court erred in ordering expungement under the court’s statutory authority because the statutory condition that the matter be determined in Petersen’s favor had not been met.








RANDALL, Judge (concurring specially)


            I concur in the result.