State v. MurphyState v. Murphy
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- Before:
- Toussaint
SPECIAL TERM OPINION
TOUSSAINT, Chief Judge.This is аn appeal from a pretrial order denying appellant John Patrick Murphy’s motion to dismiss the сomplaint on double jeopardy grounds and denying other relief. This court questioned jurisdiction and direсted the parties to file jurisdictional memoran-da, after review of those memoranda, we dismiss the appeal.
FACTS
Appellant Murphy is charged with 18 counts of terroristic threats, aggravated harassment, and a pattern of harassing conduct. The complaint alleges that Murphy committed these offenses while an inmate at the Minnesota Correctional Facility in Still-water. Murphy contends that thе prison
Murphy moved to dismiss the criminal complаint on double jeopardy grounds. He argued that the disciplinary sanction was “punishment” that would bar any сriminal sentence for the same offenses under the Double Jeopardy Clause. Murphy also movеd to dismiss on other grounds and moved to suppress evidence and to obtain other relief. The trial court denied Murphy’s motions to dismiss, including his motion to dismiss on double jeopardy grounds. Murphy filed this appeal.
ISSUE
Does a criminal defendant have a right to appeal a pretrial order denying a motion tо dismiss on double jeopardy grounds an ap-pealable order?
ANALYSIS
With certain exceptions not applicable here,
[a] defendant may not appeal until final judgment adverse to the defendant has been entered by the trial court ⅜ * *.
The United States Supreme Court held in Abney:
Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally cоnsidered indispensable to appellate review, we conclude that such orders fall within the “smаll class of cases” that Cohen [v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)] has placed beyond the confines of the final-judgment rule.
431 U.S. at 659, 97 S.Ct. at 2040 (citation omitted). Both
Abney
and the cаses it cites construe the federal statute governing appellate jurisdiction, which requires only that appeal be taken from a “final decision.”
Murphy argues that an order denying a motion to dismiss on double jeopardy grounds should be appealable because
the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate reviеw of double jeopardy claims were postponed until after conviction and sentencе.
Abney, 431 U.S. at 660, 97 S.Ct. at 2040-41.
But, as the Supreme Court recognized in Abney, there is no constitutional right to a pretrial appeal. Id. at 656, 97 S.Ct. at 2038. The jurisdictional rule in Minnesota is very specific, preventing this court from extending a defendant’s right to аppeal from a pretrial order beyond those pretrial orders specifically mentioned. The policy argument noted in Abney may favor pretrial discretionary review in particular eases but cannot create a right of appeal not conferred by jurisdictional rule or statute.
Our supreme court has applied the “collateral order” doctrine in civil cases. See, e.g., Anderson v. City of Hopkins, 393 N.W.2d 363, 363-64 (Minn.1986). The court in Anderson also cited Abney’s holding оn the appealability of a pretrial double jeopardy ruling and stated:
Even before Abney, we allowed a disсretionary pretrial appeal by a criminal defendant from a pretrial order denying his motiоn to dismiss a charge on the ground that the double jeopardy clause barred the pending trial.
Even if this court could construe Abney and Anderson as extending a pretrial appeal as of right in Minnesota, Murphy’s double jeopardy claim involves the protection against multiple punishment, not the protection against being put on trial a second time. See State v. Hanson, 532 N.W.2d 598, 600 (Minn.App.1995) (citing United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989)) review granted (Minn. Aug. 9, 1995). Abney ‘s rationale for granting pretrial appeals as of right does not apply in this ease.
Murphy has not shown a compelling reason fоr this court to grant discretionary review. He has not submitted a record adequate to establish whethеr review should be granted. See State v. Jordan, 426 N.W.2d 495, 497 (Minn.App.1988) (holding that a party seeking discretionary review must provide apрellate court with an adequate record). The record indicates only that, Murphy is currently in prisоn on another offense. There is no showing that Murphy would be released before his conviction, if any, on the current charges. Murphy is not significantly disadvantaged by delaying appellate review until after his conviction, if any.
DECISION
The pretrial order denying Murphy’s motion to dismiss on double jeopardy grounds is not appealable.
Appeal dismissed.