                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0541

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                        T. K. S.,
                                        Appellant

                                Filed December 12, 2016
                                Reversed and remanded
                                     Worke, Judge

                               Anoka County District Court
                                File No. 02-CR-14-4452

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David J. Brodie, Coon Rapids City Attorney, Coon Rapids, Minnesota (for respondent)

Peter J. Nickitas, Minneapolis, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Bratvold,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges the district court’s amendment of an expungement order

under Minn. R. Civ. P. 60.02. Because the record does not show that the district court

considered the Finden factors, we reverse and remand.
                                           FACTS

       In July 2015, appellant T.K.S. petitioned the district court to expunge records

related to charges that had previously been dismissed by the Coon Rapids City Attorney’s

Office. The district court held a hearing on the petition, and the state did not object to the

expungement request. T.K.S.’s attorney offered to draft a proposed order granting the

expungement.

       T.K.S.’s attorney e-mailed the proposed order to the district court and the assistant

city attorney. The assistant city attorney acknowledged receipt of the proposed order.

       On October 7, 2015, the district court signed an order granting T.K.S.’s petition

that contained the language T.K.S. had included in his proposed order. The order stated,

in part, “The court concludes the following: The prosecution lacked probable cause ab

initio. The state lacked predicate facts to seek, and the court lacked predicate facts, to

imposed [sic] the no-contact order (NCO).” In addition, the order stated, “This order,

which finds a nexus between the criminal record and the Petitioner’s status as a crime

victim, restores the Petitioner to the status occupied before the arrest.”

       On January 27, 2016, the state moved the district court to amend its expungement

order. The motion sought relief under Minn. R. Civ. P. 60.02 and asked the district court

to delete the language regarding probable cause and predicate facts to impose the no-

contact order. The motion included an affidavit from the assistant city attorney who

handled the matter. The attorney said that he did not realize the disputed language was in

the order until December 30, 2015, and that he would have objected had he discovered

the language in T.K.S.’s proposed order before it was signed by the district court. The


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motion also asked the district court to clarify the language that identified T.K.S. as “a

crime victim.”

       After a hearing, the district court granted the state’s motion. The district court

issued a modified expungement order that deleted the language related to probable cause

and predicate facts for the no-contact order. The district court also deleted the words

“which finds a nexus between the criminal record and the Petitioner’s status as a crime

victim.” This appeal follows.

                                       DECISION

       The state argues that the disputed language in the original expungement order was

the result of “mistake or excusable neglect” and was properly corrected by the district

court under rule 60.02. T.K.S. argues that the district court abused its discretion by

failing to consider required factors before granting the state’s motion.

       The district court granted T.K.S.’s expungement petition under Minn. Stat.

§§ 609A.01-.04 (2014).        Under that chapter, an expungement order is stayed

automatically for 60 days after the order is filed, and if an appeal is filed, it is also stayed

during the appeal period. Minn. Stat. § 609A.03, subd. 9. An agency or jurisdiction

whose records are affected by the expungement order has 60 days after service of the

notice of filing to appeal the order. Id. Here, the notice of filing for the October 7, 2015

expungement order was filed on October 9, 2015. At the hearing on its motion to modify

the order, the state conceded that it received notice of the order on October 7, 2015, or

soon thereafter. But the state did not appeal the order and did not file its rule 60.02

motion until January 27, 2016, 112 days after October 7, 2015.


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       Generally, even if the district court’s order is erroneous, “if it is an appealable

order it is still final after the time for appeal has expired.” Dieseth v. Calder Mfg. Co.,

275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966). Rule 60.02, however, provides

“exceptions to the finality of judgments under narrowly defined circumstances.” Carter

v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996), review denied (Minn. Dec. 23,

1996). The rule provides:

                     On motion and upon such terms as are just, the court
              may relieve a party or the party’s legal representatives from a
              final judgment (other than a marriage dissolution decree),
              order, or proceeding and may order a new trial or grant such
              other relief as may be just for the following reasons:
                     (a) Mistake, inadvertence, surprise, or excusable
              neglect[.]

Minn. R. Civ. P. 60.02.

       To grant relief under rule 60.02, the district court must consider and expressly find

that the moving party has established all four of the factors identified in Finden v. Klaas:

(1) that the moving party has a debatably meritorious claim; (2) that the moving party has

a reasonable excuse for its failure or neglect to act; (3) that the moving party acted with

due diligence after discovering the error or omission; and (4) that the other party will not

suffer substantial prejudice if the requested relief is granted. 268 Minn. 268, 271, 128

N.W.2d 748, 750 (1964); see also Gams v. Houghton, 884 N.W.2d 611, 619-20 (Minn.

2016). The decision to grant a rule 60.02 motion is committed to the sound discretion of

the district court and will not be reversed absent a clear abuse of that discretion. Gams,

884 N.W.2d at 620.




                                             4
       Here, the district court did not make explicit findings on any of the Finden factors.

At the hearing on the state’s motion, the district court simply stated that the disputed

language was not mentioned at the expungement hearing, that it was not aware of the

disputed language when it signed the order, that it was under the impression that the state

had agreed to the language in the order, and that it did not have the necessary facts to

make findings on probable cause and predicate facts for the no-contact order.

       In two recent decisions, the Minnesota Supreme Court held that the district court

abused its discretion by denying relief under rule 60.02 without making findings on all

four Finden factors. Id. at 621; Cole v. Wutzke, 884 N.W.2d 634, 639 (Minn. 2016). The

supreme court stated that “effective appellate review under an abuse-of-discretion

standard is only possible when the district court has issued sufficiently detailed findings

of fact or conclusions of law to demonstrate that it has considered all of the relevant

factors.” Gams, 884 N.W.2d at 621. The district court is in the best position to assess the

Finden factors and for this reason the supreme court has “expressed serious doubts as to

the utility of undertaking a Rule 60.02 analysis at the appellate level.”       Id. at 620

(quotation omitted). In both cases, the supreme court remanded to the district court for

reconsideration and additional findings. Id. at 621; Cole, 884 N.W.2d at 639.

       The record in this case precludes effective appellate review. The district court’s

limited findings do not allow us to determine whether it considered the necessary factors.

We reverse and remand to allow the district court to address the Finden factors.

       The state argues that, regardless of rule 60.02 or the Finden factors, the district

court has inherent authority to modify its own expungement orders. The state cites to the


                                             5
inherent authority that allows district courts to grant expungements and to reconsider

omnibus rulings prior to trial. See State v. S.L.H., 755 N.W.2d 271, 274 (Minn. 2008)

(expungements); State v. Papadakis, 643 N.W.2d 349, 356-57 (Minn. App. 2002)

(omnibus rulings). But the state did not raise these arguments before the district court.

See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that an appellate court will

not consider matters not argued to and considered by the district court). Moreover, the

state has not cited, and we are not aware of, any authority holding that the district court

has unfettered ability to amend an expungement order after the time to appeal that order

has expired. As stated above, absent application of rule 60.02, when the time to appeal

an appealable order expires, the order is final. Dieseth, 275 Minn. at 370, 147 N.W.2d at

103.

       Reversed and remanded.




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