Thursday, December 1, 2011
Section: Features/Substantive Law
By Laura Baldwin, co-chair of the HCBA Criminal Law Section
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Petty misdemeanors are the lowest level of charge in our justice system. Minnesota Statute 609.02 defines “Petty misdemeanor” as “a petty offense which is prohibited by statute, which does not constitute a crime and for which a sentence of a fine of not more than $300 may be imposed.”
Because the penalties are minimal and the charges are not considered “crimes,” petty misdemeanors offer far fewer due process protections than misdemeanor or felony offenses. For example, courts regularly find people guilty of petty misdemeanors when they fail to appear for court. Defendants do not have access to court appointed counsel for petty misdemeanors. A petty misdemeanor would not merit a jury trial.
Nonetheless, people are negatively affected by their petty misdemeanor record. These records are accessible to the public through the Minnesota court system. Potential employers, landlords, or others who may read the criminal record often overlook the fact that these charges are not considered “crimes” under the law. Petty misdemeanors frequently interfere with the basic needs of unsuspecting people.
For example, consider a woman with a petty misdemeanor theft conviction who worked
at a gas station that was recently bought by a larger company. The larger company ran criminal background checks on all employees, and fired the woman when they discovered the petty misdemeanor offense on her record.
Or consider a man charged with a misdemeanor theft after failing to pay for gas, whose case was dropped to a petty misdemeanor after he showed proof of restitution and after questions of cultural misunderstanding came to light. Because of the petty misdemeanor, he lost his job and faced closer scrutiny as he sought permanent legal residency status.
Or think about a man who was turned down for a job due to a petty misdemeanor conviction for violating the parks and recreation board code by engaging in prohibited language or conduct. The man was initially charged with a misdemeanor level offense; the court reduced the case to a petty misdemeanor and entered a default judgment against him after he confused his criminal and family court dates, and failed to appear in court. Before the default judgment, he asked for a jury trial and intended to fight the charges. Because his charges were reduced, he lost not only his right to a jury, but his right to fight the charges.
Currently, the appellate courts allow for direct appeal of petty misdemeanor convictions, but do not offer post-conviction relief. Direct appeal requires that the appellate file notice of appeal within 10 days of the conviction, which is concerning for a number of reasons. People are adversely affected by these records in ways that may not be foreseeable at the time of conviction. Many lack representation while they deal with their cases. And many people, especially those without lawyers, are not able to file notice of appeal within
the 10 day timeline.
The Supreme Court is considering review of Freeman v. State, a recent Court of Appeals decision denying post conviction relief to petty misdemeanants. It remains to be seen what happens next with this issue. Clearly, the stigma of petty misdemeanor records can last longer, cut deeper, and harm more people than intended. Access to appellate court review, even in low level offenses, is an important part of the judicial function. This is especially true when the courts freely disseminate these low level records that have the potential to significantly harm the people convicted of petty misdemeanors.
Civil attorneys often have questions on criminal law. To help answer some of these questions, the HCBA Criminal Law Section will be hosting a special CLE on Friday, Dec. 16: A Criminal Law Primer—What Civil Attorneys Need to Know About the “Other” Side of Practice. (See ad on page 14.)