This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Steven M. Thul, petitioner,
Filed May 31, 2005
Anoka County District Court
File No. TX-00-21308
Steven J. Meshbesher, Meshbesher
& Associates, P.A., 225 Lumber Exchange Building,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Wilbur F. Dorn, Jr., Ham Lake City Attorney, Dorn Law Firm, Ltd., 9380 Central Avenue NE, #200, Blaine, MN 55434 (for appellant)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
The state appeals from the district court’s decision granting postconviction relief to respondent Steven Thul. Because we conclude that the district court did not abuse its discretion, we affirm.
June 2000, a complaint filed in
At the hearing, Thul testified that by March 1, 2000, he had erected a hand-made, white tag-board sign that warned in black marker, “Caution, Heliport.” Thul testified that he stuck the sign in a small snowbank and that while his yard could be approached from more than one direction, the sign could be read from all approaches. After the omnibus hearing, the district court determined that Thul had not complied with the FAA’s requirements because he erected only one sign before March 1, 2000, and the letter from Pinkley required “signs.”
At trial in February 2002, Pinkley appeared as a witness, but neither the state nor Thul called him to testify. Another judge of the district court found Thul guilty of operating a helicopter in a restricted zoning area and sentenced him to 30 days in jail, stayed; to a stayed $700 fine; and to one year of probation. The district court relied on the determinations from the omnibus hearing as the law of the case.
appealed from this decision, but he then requested to stay his appeal. This court filed an order to stay Thul’s
appeal and remanded his case to the district court for postconviction
proceedings. In July 2002, the district
court denied Thul’s request for postconviction relief. This court affirmed the denial of
postconviction relief in a published opinion.
Thul v. State, 657 N.W.2d 611 (Minn. App. 2003), review denied
In July 2003, Pinkley responded to a letter from Thul and wrote that the FAA did not mean for the term “warning signs” to be so literally applied and that “a single sign, if appropriately located, can suffice.” After receiving Pinkley’s letter, Thul filed a petition for postconviction relief under Minn. Stat. § 590.01, requesting relief based on newly discovered evidence in the form of Pinkley’s July 2003 letter.
Pinkley testified at a postconviction hearing in May 2004. He would not comment on the sufficiency for FAA compliance purposes of Thul’s lone cardboard warning sign. He testified that one sign may be sufficient when only one access to the landing/takeoff area exists but that at least two signs are necessary when there is more than one access or ingress/egress route. He stated that the signs have to be visible from all approaches.
The postconviction court determined that the sign Thul erected “was visible from every direction the yard could be approached from and was sufficient as a temporary sign,” that the sign was posted by the March 1, 2000 deadline, and that the sign was “near the only access that is used by the general public.”
The postconviction court also determined that the intended meaning of “warning signs” described in Pinkley’s 2003 letter was not newly discovered evidence because with due diligence it could have been discovered by the time of the March 2001 omnibus hearing. But the postconviction court determined that the interests of justice and fairness warranted substantive review and that based on its interpretation of the letter, the charges against Thul could no longer be substantiated. The postconviction court vacated the guilty verdict. This appeal by the state follows.
“A petition for postconviction
relief is a collateral attack on a judgment which carries a presumption of
regularity and which, therefore, cannot be lightly set aside.” Pederson v. State, 649 N.W.2d 161, 163
Because the district court did not abuse its discretion by granting review of Thul’s conviction and by granting Thul relief, we need not determine whether the district court erred by determining that the June 2003 letter was not newly discovered evidence.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.