This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Gary Miller,



Filed May 30, 2006

Klaphake, Judge


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.

U N P U B L I S H E D   O P I N I O N


            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. 


            Appellant petitioned for IFP status under Minn. Stat. § 563.01, subd. 3 (2004), which is limited to civil actions.[1]  Id.  The district court denied appellant’s request as frivolous, using the statutory standards set forth in Minn. Stat. § 563.01.  Thus, although the district court correctly denied appellant’s motion, its reasons for doing so were incorrect.  We therefore affirm the district court’s denial of appellant’s request for IFP status under the statute, but base our decision on the inapplicability of Minn. Stat. § 563.01, subd. 3, to appellant’s request.

            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.[2]  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.


[1] 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 proceeding.  See Minn. Stat. § 590.01, subd. 3 (2004); Minn. R. Crim. P. 28 cmt.

[2] We note that appellant may file a postconviction proceeding without payment of costs or fees.  Minn. Stat. § 590.02, subd. 2 (2004).  The IFP petition here relates only to appellant’s request for a transcript.