This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed May 30, 2006
Hennepin County District Court
File No. 91000459
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Gary Alan Miller, OID #100771, Minnesota Correctional Facility-Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)
Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
Appellant Gary Miller challenges the district court’s order denying his request to proceed in forma pauperis (IFP) under Minn. Stat. § 563.01, subd. 3 (2004). Appellant petitioned for IFP status in order to obtain a transcript on which to base a second postconviction petition. Because Minn. Stat. § 563.01 applies only to civil actions, the district court did not err by denying appellant’s motion. We therefore affirm.
petitioned for IFP status under
As an indigent defendant, appellant is entitled to proceed IFP under Minn. R. Crim. P. 28.02, subd. 5, which governs IFP proceedings for both criminal appeals to this court and for postconviction proceedings. The rule sets forth the procedure that must be followed in order for a pro se indigent defendant to obtain transcripts free of cost; this procedure includes application to the office of the state public defender for review of appellant’s eligibility. Minn. R. Crim. P. 28.02, subd. 5(6). The rule does not, however, call for a determination of whether the postconviction petition is frivolous. Thus, while we affirm the district court’s denial of appellant’s request for IFP status under the statute, appellant is free to proceed under the rule with an application to the state public defender’s office.
While a postconviction proceeding has both criminal and civil features, it is
an action grounded in a criminal conviction and should be treated as a criminal
We note that appellant may file a postconviction proceeding without payment of
costs or fees.