Gaulke v. State , 1973 Minn. LEXIS 1236 ( 1973 )

206 N.W.2d 652 (1973)

Leonard GAULKE, Appellant,
v.
STATE of Minnesota, Respondent.

No. 43681.

Supreme Court of Minnesota.

April 13, 1973.

C. Paul Jones, Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Julius E. Gernes, County Atty., Winona, for respondent.

Considered en banc without oral argument.

PER CURIAM.

Petitioner, a prisoner at the state prison, appeals from the district court's order denying his petition for postconviction relief. We affirm.

In 1946 petitioner was convicted of second-degree robbery. Minn.St.1945, § 619.43. Had it not been for this conviction, petitioner, when convicted in 1953 of rape, Minn.St.1953, § 617.01, would have received a sentence of 7 to 30 years rather than 14 to 60 years because the second-offender statute then in effect, Minn.St.1953, § 610.28 (superseded in 1963 by Minn.St. 609.155), would not have had any application. Petitioner now seeks to overturn the 1946 conviction on the ground of newly discovered evidence, hoping thereby to have his sentence of 14 to 60 years reduced to a 7 to 30-year sentence.

We hold that the district court properly denied the petition on the ground that petitioner, who knew about the allegedly newly discovered evidence in late 1946 and yet did not petition for relief on that basis until 1971, did not act with due diligence in seeking relief.

Affirmed.