PRESERVING AN ISSUE FOR APPEAL
From MN Bench Book - Trial Procedures & Practices for Judges
When a defendant desires to appeal a legal issue (stop, arrest, search, interrogation, confession, etc.)raised at trial, the defendant must follow the proceeding set forth in Minnesota Rule of Criminal Procedure 26.01 Subd. 4, in order to get the issue(s) before the Court of Appeals. This procedure is not a plea of guilty, as a plea of guilty waives legal issues in the arrest and evidence gathering process leading to the charging of the defendant. The defendant will, in most cases, have filed motions raising the legal issues with the trial judge. If the judge has denied the motions and the defendant desires to appeal the judge's decision regarding issues raised at the trial stage and denied by the trial judge, the defendant must follow the procedure set forth in MRCRP 26.01, Subd. 4. This proceeding is not a plea of guilty and should not be referred to as a Lothenbach plea. the Lothenbach case set out the procedure that was incorporated into Rule 26.01, Subd. 4. The procedure governed by MRCRP 26.01 Subd 4 is not a guilty plea; it is a bench trial, where all of the evidence is stipulated to by the Defendant and the judge determines the question of guilt.
The procedure in 26.01 Subd. 4 is as follows:
- 1. The defendant maintains a plea of not guilty,
- 2. The defendant and the prosecutor must acknowledge that the pre-trial issues(s) is dispositive and/or that a trial will be unecessary if the defendant prevails on appeal,
- 3. The defendant waives the right to a jury trial and all of the righrs associated with it, exclusive of the presumption of innocence and proof beyond a reasonable doubt,
- 4. The defendant stipulates to and agrees that the judge can consider all of the prosecutor's evidence,
- 5. The defendant agrees that the court can consider all of the prosecutor's evidence,
- 6. The defendant agrees that the judge can determine the defendant's guilt based on the stipulated to evidence,
- 7. The defendant agrees on the record that appeallate review will be of the pretrial issue(s) but not whether the defendant is factually guilty,
- 8. The judge, if finding the defendant guilty, must make such finding and make written findings of fact for each element of the charged offense(s) the defendant is found guilty of.
The 26.01 Subd. 4 proceeding is used when the defendant desires to preserve one or more pre-trial issues for appeal.
The judge determines guilt or innocence applying the presumption of innocence and the beyond a reasonable doubt standard of proof.
The procedural requirements are strict and precise:
- State v. Lothenbach, 296 N.W.2d 854 (Minn.1980).