author: RUSSELL A. ANDERSON, Justice.

text:
    PEGGY ROSE REVOCABLE TRUST u/a dated April 11, 2000, Petitioner, Appellant, v. Kenneth EPPICH, Respondent, Smuckler Architects, Inc., et al., Defendants.
    No. C3-00-1163.
    Supreme Court of Minnesota.
    March 21, 2002.

      Foley & Mansfield, P.L.L.P., John T. Trout, Stephen L. Wilson, Minneapolis, for Appellant.
    Bassford, Lockhart, Truesdell & Briggs, P.A., Dale M. Wagner, Charles E. Lund-berg; Dorsey & Whitney L.L.P., Steven K. Champlin, Minneapolis, for Respondent.
    Minn. Atty. Gen. Mike Hatch, David M. Aafedt, Assistant Attorney General, St. Paul; Thomsen & Nybeck, P.A., Donald D. Smith, David J. McGee, Edina, for Amicus Curiae.
   OPINION

RUSSELL A. ANDERSON, Justice.

This case arises from the sale of a home by Kenneth Eppich (“Seller”) to Peggy Rose and Keith Kajander (collectively “Buyers”) in January 1996. In addition to the purchase agreement, the parties signed an arbitration agreement subjecting all claims related to the property, including fraud, to binding arbitration and providing that such claims must be filed within 18 months of the date of the closing on the property. Two years after closing and after discovering the home had extensive water problems, Buyers filed suit alleging that Seller was aware of the home’s defects at the time of the sale and failed to properly disclose them. Buyers also filed a request for arbitration asserting that Seller’s fraudulent acts tolled the 18-month contractual limitations period until the fraud was discovered. Seller moved for summary judgment on the ground that Buyers’ were bound by the arbitration agreement and that, based on that agreement, their claims were time barred.

The district court denied Seller’s motion for summary judgment and directed the parties to submit their dispute to binding arbitration, reasoning that if Seller fraudulently concealed the moisture problems, the 18-month limitations period would have been tolled. The arbitrator found Seller liable to Buyers as a result of his fraudulent representations, and the district court confirmed the arbitrator’s award. The court of appeals reversed the district court, finding no basis on which to toll an otherwise reasonable limitations period which had ’ expired before Buyers filed' their claim. Buyers, now deceased and represented by the Peggy Rose Revocable Trust, seek a reversal of this ruling and a reinstatement of the arbitrator’s award in their favor. Because we conclude that an 18-month limitations period measured from the date of a real estate closing is unreasonable as applied to this claim of fraud where undisclosed water problems resulted in structural damage not readily apparent to Buyers, we reverse the court of appeals and reinstate the district court’s decision confirming the arbitrator’s award.

This case involves the sale of a home located in the Cedar Lake area of Minneapolis. The home was designed by Jack Smuckler and Smuckler Architects, Inc., and constructed by Smuckler Corporation and its subcontractors during the years 1989-90 for Seller, who thereafter occupied the home. In late 1994, Seller listed the home for sale with Burnet Realty, at which time he completed and executed a document entitled “Real Estate Transfer Disclosure Statement” (Disclosure). Seller represented in the Disclosure that he had experienced no “leakage or other problems” pertaining to the roof, that there were no “leakage/seepage” conditions with respect to the basement or crawl space, and that he was aware of no “other known defects in or on the property.”

On November 18, 1995, Seller entered into a purchase agreement for the sale of his home to Buyers for $510,000. In addition to the information Seller provided to Buyers in the Disclosure, Seller represented by completing and executing the purchase agreement that he had “not had a wet basement” and that he had “not had roof, wall or ceiling damage caused by water or ice build-up.”

All parties acknowledged that they had received and had an opportunity to review the “Arbitration Disclosure and Residential Real Property Arbitration Agreement” (Arbitration Agreement) that accompanied but was not a part of the Purchase Agreement. The Arbitration Agreement, in pertinent part, informed the parties of the following:

You have the right to choose whether to have any disputes about the physical condition of the property that you are buying or selling decided by binding arbitration or by a court of law. By agreeing to binding arbitration you give up your right to go to court. * * * The ARBITRATION AGREEMENT is not part of the purchase agreement. Your purchase agreement will still be valid whether or not you sign the ARBITRATION AGREEMENT.
All disputes about or relating to the physical condition of the property are subject to arbitration under the ARBITRATION AGREEMENT. This includes claims of fraud, misrepresentation, warranty and negligence.
A request for arbitration must be filed within 18 months of the date of the closing on the property or else the claim cannot be pursued.

The Arbitration Agreement was signed by all parties, including Seller, Buyers, and each of their real estate agents.

Subsequently, a representative from Structure Tech, Inc. inspected the home pursuant to a contract with Buyers. The closing for the sale of the home occurred on January 2, 1996, and Buyers moved in shortly thereafter.

In May 1996, Buyers sought to have the exterior of the home painted but were told the moisture content in the siding was too high. The painter returned later that summer but found the siding was still too wet to paint, at which time he suggested to Buyers that they attempt to determine what was causing the high moisture level.

In late 1996 or early 1997, Buyers noticed some leaking in the garage. After ripping apart the decking above the garage, Buyers discovered water “pooling” rather than draining properly. Later that spring, Buyers inquired about replacing a window that had a deteriorating frame and they were told that the sash of several windows needed replacing. Buyers spoke to a representative from Pella Windows and also had Jack Smuckler come out to their home in an effort to determine the source of the problem. Ultimately, in October 1997, large portions of the home’s siding were removed at which time Buyers discovered that repeated leaking and prolonged exposure to moisture had made the home structurally unsound.

Rose testified at her deposition that the level of rotting and deterioration observed by contractors present when the siding was removed suggested to them that the water problem dated back to the initial construction of the home. Consistent with that conclusion, Buyers recovered documents indicating that Seller was experiencing serious water problems as early as 1991, only one year after construction was completed. In addition, a neighbor who had considered purchasing the home prior to Buyers’ offer indicated that Seller made several statements to him about water damage and leakage in the home, and that Seller acknowledged that Smuckler homes had a reputation for such problems.

In February 1998, two years after closing, Buyers commenced this lawsuit in district court seeking damages related to the cost of reconstructing their home based upon claims that Seller made false representations regarding the home’s condition. They asserted that Seller was aware of the home’s moisture problems prior to the date of the purchase agreement but failed to reveal such defects when completing the Disclosure. They argued that Seller wrongfully concealed this information and that his cryptic notations in the Disclosure were misleading and insufficient to alert them to the true nature and extent of the ongoing water problems.

On August 3, 1998, after limited discovery, Seller moved for summary judgment on grounds that the parties’ arbitration agreement was binding and enforceable, and that Buyers’ claims were barred by the 18-month limitations period set ■ forth in the Arbitration Agreement. On January 26, 1999, while Seller’s motion was pending, Buyers filed a demand for arbitration with the American Arbitration Association in order to protect their interests in the event the court ruled that arbitration was required.

The district court denied Seller’s motion for summary judgment, ■ concluding that the Arbitration Agreement was valid and enforceable, that fraudulent acts toll contractual limitations periods the same as statutory limitations periods until such time as the fraud is discovered or should have been discovered, and that genuine issues of material fact existed as to whether the plaintiffs were reasonably diligent in their discovery of the home’s defects and whether Seller fraudulently concealed knowledge of the home’s moisture problems. Accordingly, the district court held that summary judgment was inappropriate and directed the parties to submit their dispute to binding arbitration.

After a three-day hearing conducted in October 1999, the arbitrator determined that Seller deliberately committed fraud, that Buyers relied upon Seller’s intentional misrepresentations, and that, exercising reasonable diligence, Buyers did not discover the cause of the moisture problem in the home until the fall of 1997. The arbitrator also found that, within 18 months following that discovery, Buyers properly filed a demand for arbitration. Finally, the arbitrator concluded that Buyers were entitled to damages of $154,812.22. On Buyers’ subsequent motion, the district court confirmed the arbitration award and dismissed Seller’s motion to vacate the award in which Seller asserted that the arbitrator exceeded his authority, that Buyers waived the right to seek arbitration by filing the lawsuit, and that it was not proper to toll the contractual limitations period agreed upon by the parties.

This final point served as the focus of Seller’s appeal, where he argued that the district court committed legal error in ruling that the 18-month limitations provision found in the parties’ Arbitration Agreement was subject to tolling doctrines. The court of appeals accepted Seller’s argument and reversed the district court, concluding that the six-year limitations period for fraud actions set forth in Minn.Stat. § 541.05, subd. 1(6) (2000) did not prohibit parties from agreeing to a shorter limitations period and finding no authority favoring the tolling of an otherwise reasonable contractual limitations period even as applied to acts of fraud. We granted Buyers’ subsequent petition for review of this decision. •

This case presents the question whether the court of appeals properly concluded that, on the facts of this case, the district court erred in tolling the 18-month limitations period and submitting the dispute to binding arbitration, and that the Arbitration Agreement’s 18-month limitations period measured from the date of closing was reasonable. Appellate courts review a determination of arbitrability de novo. Freeman v. Duluth Clinic, Ltd., 334 N.W.2d 626, 629 (Minn.1983). Further, where arbitration is appropriate, arbitrators are the final judges of both law and fact; every reasonable presumption is to be exercised in favor of the finality and validity of the arbitration award, thus the scope of judicial review of an arbitration award is extremely narrow. State Auditor v. Minnesota Ass’n of Professional Employees, 504 N.W.2d 751, 754-55 (Minn.1993); David Co. v. Jim W. Miller Const., Inc., 444 N.W.2d 836, 840 (Minn.1989).

This court has repeatedly recognized the value of arbitration in providing parties with an efficient, inexpensive means of dispute resolution. See Correll v. Distinctive Dental Services, P.A., 607 N.W.2d 440, 445 (Minn.2000) (acknowledging efficiency as the purpose of the arbitration act); Schmidt v. Midwest Family Mut. Ins. Co., 426 N.W.2d 870, 875 (Minn.1988) (noting that the law of our state clearly establishes a policy in favor of arbitration); Valentine v. Conticommodity SVS, Inc., 344 N.W.2d 405, 407 (Minn.1984) (stating that arbitration is generally encouraged); Freeman, 334 N.W.2d at 629 (indicating that public policy favors arbitration of disputes where parties have so agreed). Minnesota Statutes § 572.08 (2000) specifically states that agreements to arbitrate are valid and enforceable absent grounds for revocation of the contract. Further, parties may agree to arbitrate any type of dispute, including fraud. Michael-Curry Cos. v. Knutson Shareholders, 449 N.W.2d 139, 141 (Minn.1989). An order confirming an arbitration award is enforced as any other judgment of the court. Minn.Stat. § 572.21 (2000).

Parties may limit the time within which legal claims may be brought provided there is no statute specifically prohibiting the use of a different limitations period in such a case and the time fixed is not unreasonable. Henning Nelson Const. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 650-51 (Minn.1986); Prior Lake State Bank v. National Sur. Corp., 248 Minn. 383, 388, 80 N.W.2d 612, 616 (1957). Whether the contractual limitations' period is reasonable depends upon the particular facts presented; what is acceptable in one case may be objectionable in another. See, e.g., Henning Nelson, 383 N.W.2d at 651, 651 n. 7 (affirming trial court finding that one-year limitations on bringing of legal actions in casualty loss setting was unreasonably short, but noting that one-year contractual limitations have been upheld under different circumstances).

Our previous case law addressing reasonableness of a limitations period has been confined to the context of a contractual agreement on a limitation period for bringing a cause of action in district court. See, e.g., Henning Nelson, 383 N.W.2d at 645; Prior Lake, 248 Minn. at 383, 80 N.W.2d at 612; Gendreau v. State Farm Fire Ins. Co., 206 Minn. 237, 288 N.W. 225 (1939); Stewart v. Nat’l Council of Knights & Ladies of Security, 125 Minn. 512, 147 N.W. 651 (1914). However, arbitration is intended to be a means of dispute resolution that avoids the need for court action. See Schmidt, 426 N.W.2d at 875 (indicating that arbitration is not merely a precursor to litigation; rather, it is a means through which contracting parties may achieve final resolution of disputes). Arbitration awards may be set aside for only limited reasons, see Minn. Stat. § 572.19 (2000), and are enforceable by judgment just as a successful claim litigated in court is enforceable. Minn. Stat. § 572.21. Given the finality of the determination of rights made in arbitration, we believe that contractual limitations periods for claims to be arbitrated must be reasonable, just as such limitations periods for claims brought in court must be reasonable.

In the case before us, the parties signed an agreement subjecting all disputes “including] claims of fraud” to arbitration and providing that a request for arbitration of such claims “must be filed within 18 months of the date of the closing on the property or else the claim cannot be pursued.” Seller and amicus Minnesota Association of Realtors (MAR) argue this period is reasonable and results from considerable study and experience with previous versions of the Arbitration Agreement. Buyers and amicus Attorney General contend that such an agreement should not be enforced in this case to protect Seller against his own fraud and that to do so would violate public policy and depart from well-established law.

• In assessing the reasonableness' of this provision, as well as public policy, we find it useful as a starting point to consider what parameters the legislature has determined to be appropriate with respect to fraud claims. Minnesota law provides a six-year statutory limitations period' for fraud. Moreover, the claim iS1 not deemed to have accruéd until discovery of the facts constituting the fraud. Minn.Stat. § 541.05, subd. 1(6) (2000) (emphasis added). In Schmucking v. Mayo, 183 Minn. 37, 40, 235 N.W. 633, 634 (1931), this court articulated the reasons behind the so-called discovery rule in cases of fraud:

First, one who cannot assert his right because the necessary knowledge is improperly kept from him is not within the mischief the statute [of limitations] was intended to remedy; but is within the spirit of the law that restrains its operation. * * * Secondly, a person should not be permitted to shield himself behind the statute of limitations where his own fraud has placed him. He should not be permitted to profit by his own wrong, and it would strike the moral sense strangely to permit him to do so.

Thus, Buyers and amicus Attorney General correctly assert that there is longstanding support for the tolling of the statutory limitations period until discovery for claims of fraud under Minnesota law. Here, the district court determined that parties to private agreements should be entitled to this same protection from fraudulent conduct.

The problem, however, is that arbitration “is not the bringing of an action under any of our statutes of limitation” (Har-Mar, Inc. v. Thorsen & Thorshov, Inc., 300 Minn. 149, 154, 218 N.W.2d 751, 755 (1974) (quoting Skidmore, Owings & Merrill v. Connecticut Gen. Life Ins. Co., 25 Conn.Supp. 76, 84, 197 A.2d 83, 87 (1963))), and “parties are generally free to structure their arbitration agreements as they see fit.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). The parties in this case agreed to an 18-month limitations period and did not provide for tolling of the limitations period until discovery in the case of fraud, therefore, there was no basis on which to impose the statutory discovery rule here. Nonetheless, the question remains whether the limitations period as written in the Arbitration Agreement is reasonable on these facts.

Fraud, by its very essence, hides the true nature of facts which may be difficult and time-consuming for unsuspecting parties to discover on their own. This principle is reflected in the discovery rule applied to fraud claims under Minnesota’s statute of limitations, which provides that a fraud claim does not accrue until discovery. Although we maintain that parties may agree to shorter limitations periods than provided by statute, there is a difference between merely shortening the time within which an existing claim may be brought and altering the date on which a cause of action accrues.

Generally, a cause of action accrues when the action can be brought without being subject to dismissal for failure to state a claim. See Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999). Under the terms of the Arbitration Agreement here, however, a party could be precluded from bringing a fraud claim to arbitration before the claim accrued; i.e., before the party knew or reasonably should have known that he or she was harmed by another’s conduct. Therefore, in this case involving a home sale, where pre-existing water problems led to structural damage, the extent of which could only be discovered by removing 'portions of the home’s exterior, we conclude that an arbitration agreement provision subjecting all claims to an 18-month limitations period running from the date of the real estate closing is not within the bounds of reasonableness when applied to the claim of fraud.

Seller argues that given this conclusion the arbitration proceeding must be set aside and this dispute remanded for trial because Seller gave up numerous legal rights in reliance on the enforceability of the Arbitration Agreement as a whole and it would be unjust for the court to now enforce some provisions and not others. While it is not accurate to state that a court can never enforce certain parts of a contract while modifying others, Seller is correct that it is not ordinarily the function of the courts to rewrite contract provisions fully considered and agreed upon by the parties. See Telex Corp. v. Data Products Corp., 271 Minn. 288, 295, 135 N.W.2d 681, 687 (1965). This is particularly true in the case of an arbitration agreement where court interference defeats the parties’ objective and public policy would favor its enforcement. Thus, as we have stated, we agree with the court of appeals that it is not proper to impose a tolling requirement for claims of fraud where the plain language of the agreement does not suggest that one was contemplated.

However, it is clear that the parties here intended to arbitrate all disputes relating to the real estate sale. Indeed, the parties specifically included claims for fraud in the type of actions to be arbitrated. In Atcas v. Credit Clearing Corp. of America, 292 Minn. 334, 341, 197 N.W.2d 448, 452 (1972), we confirmed that when a clear intent to arbitrate a dispute is present, the dispute is for the arbitrators to determine and not the court. We are further dissuaded from accepting Seller’s suggestion that the arbitration be set aside and remanded for trial in light of the fact that Buyers, the primary witnesses to the sale transaction and the damage, are both deceased. Under these particular circumstances, and given the parties’ clear intent from the face of the agreement that fraud claims be arbitrated, we believe affirming the arbitration award is proper. Accordingly, we reverse the court of appeals and reinstate the district court’s decision confirming the arbitrator’s award in favor of Buyers.

BLATZ, C.J., and LANCASTER, J., took no part in the consideration or decision of this case.

      . Despite answering “No” to the questions regarding whether there were ever problems with the home's roof, Seller added the following notation in the space provided for additional details regarding “Yes'’ answers: "Rain — Outside & Garage — Fixed.”

      . These principles were reiterated in the paragraph immediately preceding the signature lines where it was stated in bold print, "THIS IS AN OPTIONAL, VOLUNTARY AGREEMENT” and parties were reminded that by signing it, they agreed that "[a]ny dispute * * * about or relating to the physical condition of the property covered by the purchase agreement * * * including claims of fraud, misrepresentation, warranty and negligence, shall be settled by binding arbitration.” Neither the Arbitration Agreement, nor the purchase agreement, contained a severability clause.

      . It appears no major defects were discovered in the inspection; however, some potentially relevant observations were noted in the inspector's report, with respect to exterior walls: "Stains on siding at north consistent with condensation” and, regarding the window of one of the bedrooms: "Window in marginal condition due to condensation.” In her deposition, Rose acknowledged that the inspector warned her about high humidity in the home, but denied being informed of any condensation problem inside the walls of the nature and extent ultimately discovered.

      .In addition to Seller, the named defendants originally included Smuckler Architects, Inc., Jack D. Smuckler, Smuckler Corporation, and Structure Tech, Inc.' Following Kajander’s death, Rose settled with Smuck-ler Architects, Inc. and Jack D. Smuclder, and dismissed her claims against all remaining defendants except Seller in May of 2000.

      . Minnesota Statutes § 572.08 provides, in pertinent part,
      A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitra-lion any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.

      . The Arbitration Agreement was authored by MAR and is used extensively throughout the state. As Seller and amicus MAR point out, the 18-month limitations period contained in this agreement was not arbitrarily chosen, .but instead resulted from significant deliberation on the part of the Oversight Committee of the Residential Real Property Arbitration System and input from the Minnesota Department of Commerce. An earlier version of the form provided that the period within which a request for arbitration could be filed expired six months from the date the buyer discovered or should have discovered a defective condition; however, this led to disputes over when the problem was or should have been discovered, thus defeating the aim of resolving disputes in a less costly and time-consuming manner. Consequently, an 18-month bright-line rule was implemented, intending to provide a certain level of finality and predictability while at the same time giving the buyer the benefit of experiencing all four seasons on the property and an additional six months within which to file a request for arbitration.

      . There is nothing to suggest that Seller procured Buyers’ signatures on the Arbitration Agreement through duress, undue influence, fraud, or misrepresentation. The Arbitration Agreement, while obviously related to the real estate purchase, is clearly identified as an independent contract. This fact differentiates the present situation from the circumstances underlying General Elec. Co. v. O’Connell, 118 Minn. 53, 136 N.W. 404 (1912), and Ganley Bros. v. Butler Bros. Bldg. Co., 170 Minn. 373, 212 N.W. 602 (1927), which Buyers cite in support of their argument that the Arbitration Agreement’s limitations period should not be enforced to permit seller to shield his own misconduct. In those cases, the defendant sought to hide, behind an instrument that was itself secured by fraud. Although Buyers now allege fraud in the inducement with respect to the Arbitration Agreement, this claim was not made against Seller in Buyers' initial complaint, the Agreement has since been declared valid by both the district court and the court of appeals and, as Seller correctly points out, its validity has not previously been challenged by Buyers. Accordingly, the issue of fraud in the inducement as to the Arbitration Agreement is not properly before this court. '

      . See Minn.Stat. § 541.05, subd. 1(6) (2000). This concept is recognized in a large majority of states which, by statute or case law, have established that a claim of fraud does not accrue until it is discovered or should have been discovered by exercise of reasonable diligence, or some similar standard. See, e.g., Ala.Code § 6-2-3 (1993); Ariz.Rev.Stat. Ann. § 12-543 (West 1992); Cal.Civ.Proc.Code § 338(d) (West 1982 & Supp.2002); Colo. Rev.Stat. § 13-80-108 (2001); Fla. Stat. ch. 95.031(2)(a) (2001); Ga.Code Ann. § 9-3-96 (1982); Idaho Code § 5-218 (Michie 1998); Iowa Code § 614.4 (2001); Kan. Stat. Ann. § 60-513(a)(3) (1994 & Supp.2001); Ky.Rev. Stat. Ann. § 413.130(3) (Michie 1992 & Supp. 2001); Me.Rev.Stat. Ann. tit. 14, § 859 (West 1980 & Supp.2001); Miss.Code Ann. § 15 — 1— 49 (1995); Mo.Rev.Stat. §’516.120(5) (2000); Mont.Code Ann. § 27-2-203 (2001); Neb. Rev.Stat. § 25-207(4) (1995); Nev.Rev.Stat. § 11.190(3)(d) (2001); N.H.Rev.Stat. Ann. § 508:4 (1997); N.M. Stat. Ann. § 37-1-7 (Michie 1990); N.Y. C.P.L.R. Law § 213 (McKinney 1990); N.C. Gen.Stat. § 1-52(9) (1999); N.D. Cent.Code Ann. § 28-01-16 (Mi-chie 1991); Ohio Rev.Code Ann. § 2305.09 (Anderson 2001); Okla. Stat. tit. 12 § 95(3) (1991 & Supp.1997); Or.Rev.Stat. § 12.110(1) (1999); S.C.Code Ann. § 15-3-530(7) (Law. Co-op.1977 & Supp.2000); S.D. Codified Laws § 15-2-3 (Michie 1984); Utah Code Ann. § 78-12-26(3) (1996); Va.Code Ann. § 8.01-249 (Michie 2000); Wash. Rev. Code Ann. § 4.16.080(4) (West 1988 & Supp. 2002); Wis. Stat. Ann. § 893.93(l)(b) (West 1997); Wyo. Stat. Ann. § 1-3-106 (Michie 2001); Knox College v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976, 980-81 (1981); Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind.1985); Lumsden v. Design Tech Builders, Inc., 358 Md. 435, 749 A.2d 796, 800 (2000); Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 557 N.E.2d 739, 741 (1990); Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1135 (6th Cir.1995) (applying Michigan law); SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579, 767 A.2d 469, 475 (2001); Connaught Laboratories, Inc. v. Lewis by Lewis, 124 Pa.Cmwlth. 568, 557 A.2d 40, 43 (1989); Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997); Union School Dist. No. 20 v. Lench, 134 Vt. 424, 365 A.2d 508, 511 (1976).

      . In fact the arbitrator’s finding in this case that Buyers, using reasonable diligence, did not discover the cause and magnitude of the home’s moisture problems until the fall of 1997 — more than 18 months after the closing — suggests such a possibility since by that point all claims “including fraud" were precluded.

      . In doing so, we join the court of appeals in rejecting Seller’s argument that the issue whether the contractual limitations period was reasonable is not properly before the court on appeal because it was not raised in the district court and the district court did not rule on it. See Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982) (indicating that a reviewing court is limited to considering only those issues presented and considered by the district court). As the court of appeals noted, the pre- and post-arbitration proceedings in the district court focused on the limitations period; thus the Henning test for assessing the reasonableness of a limitations period cannot be ignored.

      . This court has, for instance, upheld applications of the "blue pencil" doctrine to modify the terms of unreasonable restrictive covenants in otherwise enforceable employment agreements. See, e.g., Davies & Davies Agency, Inc. v. Davies, 298 N.W.2d 127, 132 (Minn.1980); Bess v. Bothman, 257 N.W.2d 791, 795 (Minn.1977). Additionally, the court in Hen-ning Nelson, finding a one-year contractual limitations period unreasonable, relied on another provision in the contract as a basis on which to default to the statutory limitations period of six years and otherwise enforce the agreement. See Henning Nelson, 383 N.W.2d at 651 (amending the insurance policy in question based on a provision requiring it to conform to state law).

      . Our decision today is fact-specific and is not intended to diminish the right of private parties to freely contract. See, e.g., Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn.1982) (recognizing the public interest in preserving freedom of contract); Rossman v. 740 River Drive, 308 Minn. 134, 136, 241 N.W.2d 91, 92 (1976) (naming the public policy favoring freedom of contract as a potentially dominant factor when weighing the enforceability of certain contractual provisions); James Quirk Milling Co. v. Minneapolis & St. L.R. Co., 98 Minn. 22, 23, 107 N.W. 742, 742 (1906) (proclaiming it public policy that freedom of contract remain inviolate except only in cases which contravene some principle which is of even more importance). Agreements that limit the period within which claims for fraud may be brought are not automatically void and will be assessed under the conditions and within the context in which they arise. Under these facts we merely conclude, as other jurisdictions have previously acknowledged, that “if [a contractual limitations period] is not reasonable or, * * * it is unconscionable, then it is not permitted regardless of the parties’ freedom to contract.” General Electric Credit Corp. v. Home Indemnity Co., 168 Ga.App. 344, 309 S.E.2d 152, 156 (1983).


source: Caselaw Access Project

author: LANCASTER, Justice.

license: Public Domain

text:
    Shawn Allen McCOLLUM, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    Nos. C2-00-1056, C9-01-1274.
    Supreme Court of Minnesota.
    March 21, 2002.

      Susan K Maki, Asst. State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Michael K. Junge, McLeod County Attorney, Glencoe, MN, for respondent.
   OPINION

LANCASTER, Justice.

On March 29, 2000, a jury found appellant Shawn Mien McCollum guilty of murder in the first degree while committing kidnapping, in violation of Minn.Stat. § 609.185(3) (2000), murder in the second degree, in violation of Minn.Stat. § 609.19, subd. 1(1) (2000), and kidnapping, in violation of Minn.Stat. § 609.25, subd. 1(3) (2000), for his role in the kidnapping and death of Randy Pool in Hutchinson, Minnesota, between July 18 and 21, 1999. At the sentencing hearing, the court entered a conviction for first-degree murder while committing kidnapping and sentenced McCollum to life imprisonment without possibility of release. McCollum appealed and later filed a motion, which we granted, to stay his direct appeal for the purpose of instituting postconviction proceedings.

McCollum’s petition for postconviction relief sets forth two claims. First, that his conviction should be reversed and he be granted a new trial because the trial court did not inform him of his right to instruct the jury that it may not attach, an adverse inference to the fact that he did not testify at trial. Second, that his sentence should be modified to include the possibility of release because the indictment did not refer to the heinous crimes statute, Minn. Stat. § 609.106, subd. 2(2) (2000). The postconviction court denied his petition. McCollum then appealed the judgment denying his petition for postconviction relief and filed motions to vacate the stay of his direct appeal and to consolidate the appeals. We granted those motions. This case, therefore, comes to us on direct appeal and appeal of the judgment denying postconviction relief. We affirm.

The facts giving rise to McCollum’s conviction are as follows. In early 1999, Salem Bernhardt and Heather Ecklund began living with Pool in Pool’s house in Hutchinson, Minnesota. Bernhardt sold methamphetamine from Pool’s house. In June 1999, Bernhardt and Ecklund planned a trip to visit friends and family in Nebraska and Indiana. Bernhardt asked McCollum to look after the drug business during Bernhardt’s' absence. McCollum then moved into Pool’s house. In early July 1999, Bernhardt and Ecklund traveled to Nebraska to visit Jason and Tanya Caldwell (J. Caldwell and T. Caldwell, respectively). On July 10, 1999, Bernhardt returned to Hutchinson with J. Caldwell. Four days later, the Hutchinson Police Department received a tip from Lance Mattson that J. Caldwell was at Pool’s house. Mattson knew that there was an outstanding warrant for J. Caldwell’s arrest.

That evening, Hutchinson police officers went to Pool’s house. Officer Johnson and Officer Nadeau spoke to Pool outside the house, learned that J. Caldwell was inside the house, and asked Pool to bring J. Caldwell out of the house. Pool entered the house and returned with J. Caldwell. After Officer Nadeau confirmed J. Caldwell’s identity and the existence of a warrant for his arrest, J. Caldwell passed a large wad of bills to Pool. Officer Nadeau then placed J. Caldwell in handcuffs and searched him. Officer Nadeau found a plastic bag that contained a white powdery substance in one of his pockets and brought him to the police station for booking.

Officer Johnson remained at Pool’s house. Sergeant Jones arrived to assist Officer Johnson after Officer Nadeau left. Sergeant Jones and Officer Johnson told Pool that they may have to seize the money that J. Caldwell passed to him because of the discovery of apparent narcotics on J. Caldwell. Pool stated that the money was in the house. Pool entered the house and returned a few minutes later with some money. Officer Johnson noticed that Pool returned with less money than J. Caldwell had passed to him. Pool admitted that he kept some of the money for J. Caldwell’s bail. Pool agreed to retrieve the remainder of the money. Pool appeared very nervous to the officers. When asked whether he was hiding something or someone in the house, Pool responded that Bernhardt was in the house and that there were outstanding warrants for Bernhardt’s arrest.

Pool consented to the police officers’ search of the house. Pool advised the officers that Bernhardt was upstairs. Sergeant Jones found Bernhardt in an upstairs bedroom closet. The officers arrested Bernhardt and brought him to the police station. Officers found controlled substances, a scale, and approximately $2,500 in their search of Pool’s house.

Ecklund and T. Caldwell learned of Bernhardt’s and J. Caldwell’s arrests that day and returned to Hutchinson on July 18, 1999. That afternoon, Ecklund visited Bernhardt at the McLeod County jail. Bernhardt asked her to find out who had turned J. Caldwell and him in to the police. That evening, Ecklund and T. Caldwell went to Pool’s house. Ecklund, T. Caldwell, Pool, and McCollum went upstairs. Richard Ligenza arrived a few minutes later.

Ecklund, T. Caldwell, and Ligenza questioned McCollum and Pool about Bernhardt’s and J. Caldwell’s arrests, missing money, and drugs. The questioning then focused on Pool and turned violent. Eck-lund, McCollum, and Ligenza hit Pool. Pool tried to escape by running downstairs, but McCollum tripped him and slammed him to the floor. Ecklund, McCollum, Ligenza, and possibly T. Caldwell bound Pool’s arms and legs with plastic ties and duct tape. McCollum brought Pool back upstairs and Pool’s beating continued. They threatened Pool with a stun gun and may have used it on him. Eventually, Pool was brought downstairs and placed in a fruit cellar.

The next day, Pool’s beating continued. McCollum, Ecklund, Isaak Engstrom, Toby Johnson, and Salem Bernhardt’s brother, Scott, beat Pool. That night, Pool was returned to the fruit cellar and secured to a chair with duct tape.

The following night, July 20, 1999, Pool was taken from the fruit cellar and brought upstairs. Engstrom, Ecklund, and McCollum gave somewhat conflicting descriptions of the events that followed, culminating in Pool’s death.

Engstrom testified that McCollum told Pool to get into a duffel bag. After Pool climbed into it, Engstrom zipped it shut. McCollum hit Pool’s head with a closet rod, dragged the bag downstairs, and beat Pool’s head with a hammer. Ecklund sprayed aerosol into the bag. McCollum stepped on the bag for at least ten minutes.

Ecklund testified that McCollum put Pool into the duffel bag. McCollum hit Pool’s head with a hammer, dragged the bag downstairs, sprayed aerosol into the bag, and stood on Pool’s chest or neck for several minutes.

McCollum did not testify at trial, but a recording of an interview police conducted with him on August 5, 1999, was introduced into evidence. McCollum told the police in that interview that someone put Pool in the duffel bag and someone dragged the bag downstairs. McCollum denied beating Pool’s head with a hammer and stated that Engstrom hit Pool’s head with the hammer. McCollum and others sprayed aerosol into the bag. McCollum, Engstrom, and Johnson stood on Pool’s stomach, chest, and neck.

After hitting Pool’s head, spraying aerosol into the bag, and standing on Pool, Ecklund, McCollum, and Engstrom concluded that Pool had died. Ecklund and Engstrom described disposing of Pool’s body as follows. Engstrom and McCollum placed the bag that contained Pool’s body into the trunk of a car. Ecklund, Eng-strom, and McCollum drove to a train trestle in Wright County. McCollum and Engstrom carried the bag halfway across the trestle. Engstrom retrieved a cinder block from the car and McCollum tied the block to the bag. They threw the bag off the trestle into the water below.

In his statement to the police, McCollum described disposing of the body as follows. McCollum, Engstrom, Ecklund, and Johnson drove to a train trestle. McCollum stayed at the car with Ecklund while Eng-strom and Johnson carried the bag to the trestle. Either Johnson or Engstrom retrieved a brick from the car and returned to the trestle. They tied the brick to the bag and threw the bag off the trestle.

On July 28, 1999, officers from the Wright County Sheriffs Department discovered Pool’s body in the backwater of the Clearwater River. Pool’s body was identified on August 3, 1999. Police arrested McCollum two days later. Officers interviewed him that afternoon.

On September 22, 1999, a McLeod County grand jury issued a three-count indictment against McCollum: (1) murder in the first degree while committing kidnapping, in violation of Minn.Stat. § 609.185(3); (2) murder in the second degree, in violation of Minn.Stat. § 609.19, subd. 1(1); and (3) kidnapping, in violation of MinmStat. § 609.25, subd. 1(3).

McCollum’s jury trial took place from March 21 to 29, 2000. The state and McCollum each received a copy of the proposed final jury instructions and had an opportunity to review them. Before instructing the jury, the trial court asked the parties: “[I]s it correct that there have been no requested jury instructions which I have not included in this set of instructions?” Defense counsel responded: “Your Honor, that is correct. And I’m satisfied with the instructions as they are presented to me.” The state agreed that the instructions did not omit any requested instructions. The trial court then instructed the jury. An instruction that the jury may not attach an adverse inference to McCollum’s decision not to testify was not given to the jury. After instructing the jury, the trial court asked the parties whether the instructions as given contained any errors or omissions. They responded that the instructions as given did not contain any errors or omissions. The jury found McCollum guilty of all charged offenses.

At the sentencing hearing, the court entered a conviction for first-degree murder while committing kidnapping. The court denied McCollum’s motion to sentence him .without regard to the heinous crimes statute, MinmStat. § 609.106, subd. 2(2), and sentenced him to life imprisonment without possibility of release.

McCollum’s petition for postconviction relief sets forth two claims: (1) that his conviction should be reversed and he be granted a new trial because the trial court did not inform him of his right to instruct the jury that it may not attach an adverse inference to the fact that he did not testify at trial; and (2) that his sentence should be modified to include the possibility of release because the indictment did not refer to the heinous crimes statute, Minn. Stat. § 609.106, subd. 2(2).

The postconviction court affirmed McCollum’s conviction and sentence and denied his petition for postconviction relief. With respect to the jury instruction, the court concluded that the instruction should not be given without the defendant’s request, that it was not error to exclude the instruction in the absence of McCollum’s request for it, and that even if it was error to exclude the instruction without McCol-lum’s waiver, any such error was harmless. With respect to the sentence, the court concluded that the indictment was legally sufficient and that a sentence of life imprisonment without possibility of release is statutorily mandated upon conviction of first-degree murder while committing kidnapping.

I.

McCollum argues that his conviction should be reversed and that he is entitled to a new trial because the trial court did not inform him of the right to have the jury instructed that it could not attach an adverse inference to his decision not to testify. He asks us to create a new rule of law requiring such an instruction in all cases where a criminal defendant does not testify unless the defendant makes an express on-the-record waiver of the instruction. We decline to impose that requirement.

When requested by a criminal defendant who did not testify at trial, a state trial judge must give a no-adverse-inference instruction to the jury. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). In Minnesota, the standard no-adverse-inference instruction is: “The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any adverse inference from the fact that the defendant has not testified in this case.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed.1999).

A trial court ordinarily should not give a no-adverse-inference instruction unless the defense requests it and, then, the better practice is for the trial court to inquire of the defendant himself whether he wishes to have such an instruction. State v. Thompson, 430 N.W.2d 151, 153 & n. 3 (Minn.1988); see Minn.Stat. § 611.11 (2000) (“[FJailure to testify shall not create any presumption against the defendant, nor shall it be alluded to * * * by the court.”). In limited circumstances, a trial court may be justified in giving the instruction in the absence of the defendant’s request, and even over the defendant’s objection. See State v. Larson, 358 N.W.2d 668, 671 (Minn.1984) (stating that trial court was justified in giving a no-adverse-inference instruction because defense counsel’s closing argument opened the door to it); State v. Grey, 256 N.W.2d 74, 78 (Minn.1977) (dictum) (stating that trial courts should not comment on a defendant’s decision not to testify unless the absence of a precautionary instruction would result in a manifest injustice); cf. Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) (giving a no-adverse-inference instruction over a defendant’s objection does not violate the defendant’s privilege against compulsory self-incrimination).

A defendant who does not testify at trial has a right not to have anyone in the courtroom use his silence against him. Minn.Stat. § 611.11; Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Whittaker, 568 N.W.2d 440, 451 (Minn.1997). By its terms, a no-adverse-inference instruction calls the defendant’s silence to the jury’s attention, and that ordinarily should not be done without the defendant’s personal consent. Thus, if defense counsel requests such an instruction, the trial court or defense counsel should make a record of the defendant’s clear consent and insistence that the instruction be given. Thompson, 430 N.W.2d at 153 & n. 3. If, on the other hand, defense counsel does not request the instruction, neither the trial court nor defense counsel has to make a record of the defendant’s preference regarding the instruction. The decision not to request an instruction is a matter of trial strategy. See State v. Doppler, 590 N.W.2d 627, 635 (Minn.1999); State v. Eling, 355 N.W.2d 286, 293 (Minn.1984). “Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate.” ABA Standards for Criminal Justice: Prosecution Function and Defense Function Standard 4—5.2(b) (1993).

The rules of criminal procedure prescribe the process to determine jury instructions. Any party may file written requests for jury instructions at the close of evidence or during the trial as the court reasonably directs. Minn. R.Crim. P. 26.03, subd. 18(1). The court shall inform counsel of its proposed action regarding the requests before the arguments to the jury. Id. The court may, and upon the request of any party shall, inform counsel what instructions will be given before the arguments to the jury. Id., subd. 18(2). Parties shall have an opportunity to object to the proposed instructions out of the hearing of the jury, or, if requested, out of the jury’s presence. Id., subd. 18(3). Unless a party objects before the jury retires to consider its verdict, the party cannot assign as error any portion of, or omission from, the jury instructions. Id.

Here, the parties each received a copy of the proposed final jury instructions and had an opportunity to review them. Before the trial court instructed the jury, the parties agreed that the final jury instructions did not omit any requested instructions. The instructions did not include CRIMJIG 3.17 or its equivalent. After the trial court instructed the jury, the parties agreed that the instructions as given did not contain any errors or omissions. In Thompson, we stated that, upon request for a no-adverse-inference instruction, a record should be made of the defendant’s clear consent and insistence that the instruction be given. 430 N.W.2d at 153 & n. 3. It does not follow that a record of the defendant’s preference must be made when no such request is made. In the absence of a request for the instruction, the trial court did not err by not giving it. We affirm McCollum’s conviction.

II.

McCollum argues that his sentence must be modified to include the possibility of release because the indictment did not refer to the heinous crimes statute, Minn. Stat. § 609.106, subd. 2(2). He asserts that the right to due process requires that an indictment refer to the statute that will govern a defendant’s sentence if convicted. We disagree.

McCollum does not specify whether his due process claim arises under the United States Constitution, the Minnesota Constitution, or both. Both constitutions guarantee a criminal defendant the right to due process. U.S. Const, amend. XIV, § 1; Minn. Const. art. I, § 7. “The due process protection provided under the Minnesota Constitution is identical to the due process guaranteed under the Constitution of the United States.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988). Under the due process clauses, “[a] criminal defendant has the right to be treated with fundamental fairness and ‘afforded a meaningful opportunity to present a complete defense.’ ” State v. Wolf, 605 N.W.2d 381, 384 (Minn.2000) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (same).

McCollum acknowledges that the indictment advised him of the charges against him, and does not claim that the indictment denied him a meaningful opportunity to present a complete defense. Instead, McCollum claims that an indictment must contain a citation to the sentencing statute. “Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.” BMW of N. Am. Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (emphasis added); see State v. Davidson, 481 N.W.2d 51, 56 (Minn.1992) (“[D]ue process requires that criminal statutes be sufficiently clear and definite to warn a person of what conduct is punishable.”); State v. Simmons, 258 N.W.2d 908, 910 (Minn.1977) (“[C]riminal statutes must be sufficiently clear and definite to inform a person of ordinary intelligence what conduct is punishable and how severe the punishment might be.”). We have never held that fair notice of the penalty for criminal conduct requires that an indictment must reference the sentencing statute, but McCollum urges us to do that now.

McCollum acknowledges that the indictment advised him of the charges he faced, among them first-degree murder while committing kidnapping. A sentence of life imprisonment without possibility of release is mandatory upon conviction of that crime. Minn.Stat. § 609.106, subd. 2(2). Because the indictment informed McCol-lum of the charges against him, he had fair notice that he faced a sentence of life imprisonment without possibility of release if convicted of first-degree murder while committing kidnapping.

McCollum does not specify how the indictment’s lack of a citation to the heinous crimes statute might have affected him such that it denied him the right to be treated with fundamental fairness. Similarly, we are unable to discern how the addition of the heinous crimes statute to the indictment could have affected him.

To be sure, “[t]o support a conviction, an indictment ‘must fairly apprise the defendant of the charge brought against him, * * * [so] that he might properly prepare his defense, and so that he is protected from subsequent prosecution for the same offense.’ ” State v. Mullen, 577 N.W.2d 505, 510 n. 6 (Minn.1998) (quoting State v. Wurdemann, 265 Minn. 92, 94, 120 N.W.2d 317, 318 (1963)). Neither statute nor rule requires an indictment to refer to the statute that will govern a defendant’s sentence if convicted. See Minn.Stat. § 628.18 (2000); Minn. R.Crim. P. 17.02. In any event, the sentence was readily ascertainable from the indictment. Minnesota Statutes § 609.106, subd. 2(2), provides that the court shall sentence a person to life imprisonment without possibility of release upon conviction of first-degree murder while committing kidnapping under section 609.185(3), which was charged in the indictment. McCollum’s right to due process under the United States and Minnesota constitutions was not violated. We affirm McCollum’s sentence.

Affirmed.

      . Before Pool told the police about Bernhardt, the police may have known that Bernhardt was inside Pool's house. Sometime prior to his arrest, Bernhardt called Mattson. Bernhardt said that he was at Pool’s house and that police officers were outside, and asked whether Mattson knew why they were there. Mattson knew that there was an outstanding warrant for Bernhardt's arrest. After Bernhardt’s call, Mattson informed the Hutchinson Police Department that Bernhardt was at Pool's house.

      . The trial court granted McCollum's motion for a change of venue and the trial was held in Dakota County.


author: STRINGER, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Ronald Scott HUGGER, Respondent.
    No. C7-01-1144.
    Supreme Court of Minnesota.
    March 21, 2002.

      Barna, Guzy & Steffen Ltd., Thomas P. Malone (#66989), Cheryl A. Jorgensen (#295012), Minneapolis, MN, Minnesota Attorney General, Mike Hatch, Attorney General’s Office, St. Paul, MN, for appellant.
    Ramsey & Devore, P.A., Charles A. Ramsay (# 260277), Rebecca R. Fisher (# 296533), Roseville, MN, for respondent.
   OPINION

STRINGER, Justice.

Ronald Scott Hugger (respondent) was charged with various offenses including driving while intoxicated (DWI) after his vehicle was stopped by a police officer in February 2001. Following his pretrial motion to suppress evidence and dismiss all counts for lack of probable cause, the district court ruled that the state failed to show that the officer had a reasonable basis for stopping respondent’s vehicle. The court order dismissing the charges was filed on June 26, 2001 and the district court administrator served notice of filing on the parties by mail the next day, June 27. On July 9, 2001, the state filed a notice of appeal which the court of appeals dismissed as untimely. We reverse and remand for further proceedings consistent with this opinion.

Respondent was arrested in the city of Centerville in the early morning hours of February 15, 2001 and charged with eight violations of Minnesota law, including DWI, after his vehicle was stopped by a police officer who had observed respondent weaving in his lane and “rubbing” the fog line. Respondent moved to suppress the evidence against him and dismiss the charges on grounds that the officer did not have sufficient articulable suspicion of criminal conduct to justify the stop and that there was no probable cause for his arrest. The district court then found that there was probable cause for respondent’s arrest, but requested briefs from the parties in regard to the basis for the stop. Following the additional briefing, the district court held that the state failed to show that the officer had an articulable suspicion of criminal conduct for stopping respondent’s vehicle and granted respondent’s motion to dismiss all eight counts.

The pretrial order of the district court granting respondent’s motion to dismiss was filed on June 26, 2001. On June 27, 2001, the district court administrator served notice of filing of the order of dismissal by mail on the parties. The state subsequently filed a notice of appeal in the court of appeals on July 9, 2001. The court of appeals questioned the timeliness of the appeal and requested memoranda from the parties on the issue, ultimately dismissing the appeal as untimely because it was not filed within 8 days after the district court administrator served notice of filing by mail. The court arrived at the 8-day time period by combining the prescribed period of 5 days from the date a notice of filing is served within which a party may appeal pursuant to Minn. R.Crim. P. 28.04, subd. 2(8), with the 8 days added to the prescribed period when service is by mail pursuant to Minn. R.Crim. P. 34.04. Because the time for appeal then totaled 8 days, the court concluded that the provision in Minn. R.Crim. P. 34.01 which excludes Saturdays, Sundays and legal holidays for prescribed time periods of 7 days or less did not apply. In doing so, the court rejected the state’s argument that since the period prescribed by rule 28.04, subd. 2(8) is 5 days rather than 8, rule 34.01 should apply so as to exclude weekends and legal holidays in the initial 5-day computation before extending the period 3 days to account for service by mail. Under the state’s approach, notice of appeal filed on July 9 would have been timely.

On review here, the sole issue is the proper application of three, rules governing .criminal procedure in Minnesota. As the construction and interpretation of a rule of criminal procedure is a question of law, our review is de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

We begin with a review of the three rules-Minn. R.Crim. P. 28.04, subd. 2(8), Minn. R.Crim. P. 34.01 and Minn. R.Crim. P. 34.04. The procedure for appeal of a pretrial order by a prosecuting attorney is governed by Minn. R.Crim. P. 28.04, subd. 2, and provides, in relevant part:

The appeal * * * shall be taken within 5 days after the defense, or the clerk of court * * *, subsequently serves notice of entry of the order appealed from upon the prosecuting attorney * * *.

Minn. R.Crim. P. 28.04, subd. 2(8). To determine specifically how this time period is to be computed, Minn. R.Crim. P. 34.01 sets forth the following:

The day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When a period of time prescribed or allowed is seven days or less, intermediate Saturdays, Sundáys and legal holidays shall be excluded in the computation.

When service is accomplished by mail, Minn. R.Crim. P. 34.04 provides that an additional period of 3 days is added:

Whenever a party has the right or is required to do an act within a prescribed period after the service of a notice or other paper upon the party and the notice or other paper is served upon the party by mail, three days shall be added to the prescribed period.

The notice of filing of the district court order granting respondent’s motion to dismiss here was served on the parties by mail on June 27, 2001, thus triggering the running of the 5-day, prescribed period beginning on June 28. The state filed its notice of appeal with the court of appeals on July 9. The state contends that this filing was timely, arguing that there is no Minnesota case law on point and that Minnesota’s rules should be applied in a manner consistent with the federal court interpretation of closely comparable federal rules — an interpretation that excludes weekend days and legal holidays before adding 3 days for service by mail. The state asserts that this approach best effectuates the plain meaning and intent of the comparable Minnesota rules.

Focusing first on the repeated reference throughout the rules to the term “prescribed period,” the state argues that the 5 days provided for appeal under rule 28.04, subd. 2(8) is the prescribed period, and therefore the provision in rule 34.01 excluding intermediate weekend days and legal holidays is applicable because the prescribed period is 7 days or less. The additional 3 days for service by mail pursuant to rule 34.04, the state argues, should not be included within the prescribed period, but rather should be added to the prescribed period as the words of the rule provide. The state asserts that the interpretation urged by respondent and adopted by the court of appeals, which includes intermediate weekend days and legal holidays in the computation, effectively defeats the purpose of the additional 3 days allowed for service by mail in rule 34.04.

Respondent, on the other hand, argues that the court of appeals properly combined the 5-day period set forth in rule 28.04, subd. 2(8) and the additional 3-day period for service by mail provided in rule 34.04 into a continuous 8-day period- — thus making inapplicable the provision of rule 34.01 excluding Saturdays, Sundays and legal holidays for periods of “seven days or less.” Under respondent’s computation the state was required to file its appeal on or before July 5. Respondent contends that this approach is supported by the holdings of this court citing In re Iofredo's Estate v. Iofredo, 241 Minn. 335, 63 N.W.2d 19 (1954), and State v. Nerz, 587 N.W.2d 23 (Minn.1998). Respondent also notes that this approach is consistent with the manner in which the corresponding and nearly identical Minn. R. Civ. P. 6.01 and 6.05 are applied and is consistent with various publications providing guidance to Minnesota practitioners.

In Iofredo, a civil case impheating Minn. R. Civ. P. 6.01 and 6.05, we held that the 30-day prescribed period and the additional 3 days for service by mail resulted in a single 33-day time period within which to file the notice of appeal. 241 Minn, at 338, 63 N.W.2d at 21. Appellants argued that they were entitled to a total of 34 days because the 30-day prescribed period ended on a Sunday which, in accordance with the rules, should be adjusted to Monday, and then the additional 3 days should be added. Id. We rejected this argument focusing instead on the 33rd day, and as it did not fall on a Sunday or a holiday, we held appellants’ notice of appeal on the 34th day was untimely. 241 Minn, at 338-39, 63 N.W.2d at 21.

More recently in Nerz, we applied Minn. R.Crim. P. 34.04 to a time period of 5 days, as here, and cited Iofredo for the general proposition that the 3 days for service by mail provided in rule 34.04 are to be “added to the prescribed time allowed” and that this “create[s] a single period of time.” 587 N.W.2d at 25. In Nerz, the issue was how to apply a district court order granting the state “five (5) working days after notice of entry of this Order” in which to file an amended complaint. Id. at 24 (emphasis added). Giving effect to the plain meaning of “working days” as days other than Saturdays, Sundays and legal holidays, we calculated the relevant filing date by determining the 5th working day and then adding 3 days for service by mail. Id. at 25-26.

Respondent argues that reference to the prescribed period within which to take action and the 3 days for service by mail as a “single period of time” in Nerz (and by implication in Iofredo) is a recurring theme that converts the prescribed period set forth in the rules to that allowed by the rules plus 3 days. The implication of Nerz, respondent asserts, is that where the order of the lower court does not specify “working days,” a 5-day appeal time added to the 3 days for service by mail under rule 34.04 results in a single 8-day period and thus intervening weekends and legal holidays are not excluded.

Neither of these cases addresses the question presently before us however, as neither involves the unique intersection of the three rules at issue here. In Iofredo we held that the critical day for applying the provision of rule 6.01 regarding the last day of the period is the 33rd day when a 30-day period is extended 3 days for service by mail. 241 Minn, at 338, 63 N.W.2d at 21. Because the provision pertaining to periods of less than 7 days was not implicated, no determination was necessary as to whether intervening weekends and legal holidays should be counted. In Nerz, our ruling was limited to how the court should give effect to the plain meaning of the phrase “working days.” Nerz, 587 N.W.2d at 25-26. That is not the issue in this case.

The plain language and intent of the rules, as well as the practice of other jurisdictions, lead us to conclude that the “single period of time” comment in Nerz is not persuasive and that weekends and holidays should be excluded from the 5-day appeal time before 3 days are added for service by mail. Rule 28.04, subd. 2(8) sets forth a 5-day period of time from the date on which notice of entry of the order is served within which an appeal must be taken. This may be considered the “prescribed period.” It is adjusted by rule 34.01 which provides that when the “period of time prescribed or allowed” is 7 days or less, intervening weekend days and legal holidays are excluded in the computation. It is again adjusted when service is by mail' — • “three days shall be added to the prescribed period.” This approach ensures that a litigant has approximately the same effective time to respond whether service is accomplished in person or by mail. On the other hand, if the additional 3 days for service by mail results in including weekends and holidays under rule 34.01, as the court of appeals concluded, appellants could easily be left with less than 5 working days to perfect their appeal, as was the case here. Practitioners served by mail thus could be at a distinct disadvantage when time to take the appeal is already short.

The computation method we endorse today adopts the approach taken by the Eighth Circuit Court of Appeals when applying the corresponding federal rules in Treanor v. MCI Telecommunications Corp., 150 F.3d 916, 918 (8th Cir.1998). In electing to compute the relevant period by first excluding weekends and legal holidays in accordance with Fed.R.Civ.P. 6(a) and then adding the 3 days for service by mail pursuant to Fed.R.Civ.P. 6(e), the court reasoned:

We note that a different way of applying the Federal Rules of Civil Procedure would lead to a different result. If Rule 6(e) [providing additional days for service by mail] is applied first, the time to respond is increased from 10 to 13 days, but because the time to respond is then more than 10 days, holidays and weekends are counted. We reject this approach because “the only way to carry out Rule 6(e)’s function of adding time to compensate for delays in mail delivery is to employ Rule 6(a) first.”

Treanor, 150 F.3d at 918 (quoting Lerro v. Quaker Oats Co., 84 F.3d 239, 242 (7th Cir.1996)).

In Lerro, the Seventh Circuit Court of Appeals pointed out the absurdity of applying a method of computation that operates to defeat the purpose of the additional-time-for-mailing rule:

Rule 6(e) is designed to give a litigant approximately the same effective time to respond whether papers are served by hand or by mail. If service is by hand, then the time to respond starts immediately; if service is by mail, the party receives three extra days as an approximation of the time required for mail delivery, and on average should have the same number of days to act as he would have had following service in hand. We know from Rules 72(b) and 6(a) that, if the magistrate judge had passed his decision over the bench to counsel, plaintiffs would have had 14 calendar days to file objections [factoring in the exclusion of weekends and legal holidays]. It would be queer if service by mail, which delays actual knowledge of the decision, would reduce the time to object. Yet that is the effect of adding time under Rule 6(e) [allowing 3 additional days for service by mail] first; the time would fall from H calendar days for personal service to 13 calendar days for service by mail [because weekends and legal holidays are no longer excluded]. * * * Interactions within a complex set of rules sometimes can have unexpected and unwelcome effects, but we should not create them when the text readily can bear another meaning. The only way to carry out Rule 6 (e)’s Junction of adding time to compensate for delays in mail delivery is to employ Rule 6(a) first.

Lerro, 84 F.3d at 242 (emphasis added). The state argues that this reasoning, shared by other circuits, is the most sensible and best serves the objective of the rules. We agree.

Finally, we note that the amendments to Minn. R.Crim. P. 34.01 and 34.04, as well as Minn. R. Civ. P. 6.01 and 6.05, conform closely to their federal counterparts. As every practitioner is keenly aware, the importance of an accurate calculation of time allowed for appeal is critical and an error can be fatal to further review. Thus it would be helpful to provide an interpretation of the Minnesota rules consistent with that of the federal courts, particularly where the rules are virtually identical.

We hold that when calculating the period within which a party must act under Minn. R.Crim. P. 28.04, subd. 2(8), intermediate Saturdays, Sundays and legal holidays shall be excluded under rule 34.01 before adding 3 days for service by mail. The effect is that the 3-day additional time for service by mail shall not be added to the 5-day prescribed period for appeal to deny exclusion of Saturdays, Sundays and legal holidays. We further hold that if the final day of the time for appeal, after adding 3 days for service by mail, is a Saturday, Sunday or legal holiday, the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday in accordance with Minn. R.Crim. P. 34.01.

Reversed and remanded to the court of appeals for further proceedings consistent with this opinion.

      . Late in these proceedings, respondent challenged the state’s assertion that it was served with the notice of filing of the district court's June 26, 2001 order via U.S. mail, purportedly based on new information respondent had obtained regarding a "pick-up box” in the office of the court administrator routinely used by the state's counsel for receipt of mail and court orders. Respondent filed motions seeking to supplement the record with affidavits on this point. In an order dated November 21, 2001, respondent’s motions were denied and the state’s motion to strike from respondent’s brief the affidavits and any arguments based thereon was granted.

      . The rule goes on to define "legal holiday” as including Independence Day, among others.

      . The timing rules contained within Fed. R.Crim.P. 45(a) and 45(e), and Fed.R.Civ.P. 6(a) and 6(e), are nearly identical to Minn. R.Crim. P. 34.01 and 34.04, respectively, except that a prescribed period of "less than 11 days” (rather than 7 days or less) triggers the exclusion of Saturdays, Sundays and holidays in the computation.

      .Minnesota Rules of Civil Procedure 6.01 and 6.05 are very similar to Minn. R.Crim. P. 34.01 and 34.04, respectively, except that a prescribed period of "less than 7 days” rather than "seven days or less” triggers the exclusion of Saturday, Sundays and legal holidays from the computation. While Minn. R. Civ. P. 6.01 and 6.05 are not currently before the court, the interpretation and underlying reasoning we articulate today as to the rules of criminal procedure are equally applicable in the civil procedure context.

      . See, e.g., 1 David Herr & Roger Haydock, Minnesota Practice — Civil Rules Ann., § 6.3 (3d ed.1998); Jay Quam & Laurie Miller, Counting Days in Minnesota: Law + Mathematics = Nightmare, The Bench & Bar of Minnesota (Feb.1992).

      . At the time Iofredo was decided, Minn. R. Civ. P. 6.01 did not provide for any adjustment when the final day of the period was a Saturday. See Minn. R. Civ. P. 6.01 (1953); Iofredo, 241 Minn, at 338-39, 63 N.W.2d at 21.

      . The order of the district court at issue in Nerz granted the state’s request for leave to file an amended complaint pursuant to Minn. R.Crim. P. 17.06, subd. 4(3), which at that time provided that "[t]he specified time for such amended or new indictment or complaint shall not exceed ⅜ * * seven (7) days * * *.” Nerz, 587 N.W.2d at 25.

      . Respondent also cites Mattson v. Rochester Silo, Inc., a court of appeals decision which emphasized that the period provided for service of notice and the additional period for mailing are not to be calculated separately, but rather as one continuous time period. 397 N.W.2d 909, 913 (Minn.App.1986). Applying the rules of civil procedure, as in Iofre-do, the court stated that it made no difference if the 3-day mailing period was calculated before or after the 15-day period for service of notice, and that the practice in Minnesota was simply to combine the time limits of both rules. 397 N.W.2d at 913. The Mattson court expressly acknowledged that appellant was seeking an interpretation of the rules similar to that of the federal courts where periods are computed separately. Id. The court in Mattson indicated that the Minnesota Supreme Court had rejected that approach, and affirmed the district court’s conclusion that the filing of the notice of motion in this case was untimely. Id. (citing Iofredo, 241 Minn. at 338, 63 N.W.2d at 21).

      . The state reports receiving notice of the filing of the district court's order on July 2, 2001, leaving only 3 working days to prepare its notice of appeal (including the day it was received and the day it was due) under the computation method applied by the court of appeals and urged by respondent.

      . See, e.g., CNPq-Conselho Nacional De Desenvolvimento Cientifico E Tecnologico v. Inter-Trade, Inc., 50 F.3d 56, 58 (D.C.Cir.1995); Tushner v. United States District Court for the Central District of California, 829 F.2d 853, 855 (9th Cir.1987). The state notes that the court in Tushner, in holding that the 3 extra days for mailing should be added only after first applying the less-than-eleven-days rule excluding weekends and holidays, relied heavily upon the reasoning of the court in Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (S.D.Ala.1987). The court, in Nalty discussed at length the intent of rule 6(a), and what prompted its 1985 amendment, in support of the computation method it adopted. 654 F.Supp. at 1317-18. Quoting from the 1985 Advisory Committee Notes, the Nalty court acknowledged that, “[u]nder the current [pre-1985 amendment] version of the Rule [applicable to periods of "less than seven days”], parties bringing motions under rules with 10-day periods could have as few as 5 working days to prepare their motions.” Id. at 1316— 17. Thus, the purpose of the amendment was to avoid such hardship and the court's decision in Nalty regarding how to compute time periods was intended to respect that. The state observes that many district courts have relied upon Nalty in addressing the conflict between rules 6(a) and 6(e).

      . The state notes that this computation method is also reflected in the various guides available to practitioners litigating in federal courts. For instance, the Federal Civil Rules Handbook states;
      There * * * appear[s] to be general agreement that Rule 6(a) and Rule 6(e) should never be applied in such a way that a 10-day period (in which intervening Saturdays, Sundays, and legal holidays are excluded) is converted into an 11-day-or-more period (in which intervening Saturdays, Sundays, and legal holidays are counted) by virtue of the added 3 days. Such a reading would defeat the very objectives of Rule 6(e).
      Steve Baicker-McKee, et al., Federal Civil Rules Handbook 193 (2000). Charles Alan Wright and Arthur R. Miller in their treatise, Federal Practice and Procedure: Civil 3d § 1171 (2002), also favor this approach among the computation alternatives available, noting that it "most closely achieves the apparent purposes of Rule 6(e).”

      .The comment to rule 34 of the Minnesota Rules of Criminal Procedure provides that the additional time after service by mail provided in rule 34.04 is taken from Fed.R.Crim.P. 45(c) (as well as Minn. R. Civ. P. 6.05). Similarly, the comments to Minn. R.Crim. P. 34.01 indicate that it adopts Minn. R. Civ. P. 6.01. Minn. R. Civ. P. 6.01 and 6.05, in turn, were amended in 1996 to "conform” to their federal counterparts, as indicated in the comments of the Advisory Committee.


author: PAUL H. ANDERSON, Justice.

text:
    Jerald W. BOITNOTT, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C8-01-1413.
    Supreme Court of Minnesota.
    March 21, 2002.

      Jerald W. Boitnott, Bayport, Pro Se.
    Mike Hatch, Minnesota Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, Robert Raupp, Benton County Attorney, Foley, for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

Jerald W. Boitnott appeals from an order of the Benton County District Court denying his petition for postconviction relief. Boitnott was convicted of multiple offenses, including first-degree felony murder. We affirmed Boitnott’s conviction on direct appeal. Boitnott subsequently brought two petitions for postconviction relief. In each case, the postconviction court denied relief and we affirmed. In his present petition, Boitnott seeks the disclosure of certain grand jury exhibits. The postconviction court denied the motion on the grounds that Boitnott had not demonstrated the requisite good cause for disclosure of the exhibits. We affirm.

In 1988, petitioner Jerald W. Boitnott was convicted of first-degree felony murder, second-degree felony murder, second-degree intentional murder, and second-degree assault. On direct appeal, we affirmed Boitnott’s conviction. State v. Boitnott, 443 N.W.2d 527 (Minn.1989) (Boitnott I). More specifically, we held that the evidence was sufficient to support the conviction, Boitnott was not entitled to self-defense or accident jury instructions, the district court did not abuse its discretion in admitting a certain telephone conversation, and the state did not commit reversible misconduct in its closing argument. Id. at 532-34.

In 1994, Boitnott sued his trial counsel for legal malpractice, alleging that his counsel failed to advise him of an offer by the state to allow him to plead guilty to second-degree murder. Boitnott v. Cascarano, No. C4-96-520, 1996 WL 523816, at *2 (Minn.App. Sept.17, 1996), rev. denied (Minn. Dec. 17, 1996), cert. denied, 522 U.S. 803, 118 S.Ct. 39, 139 L.Ed.2d 7 (1997). The district court granted summary judgment in favor of trial counsel and the court of appeals affirmed. Id. at *1. Neither court found any evidence that the state offered Boitnott a plea bargain involving second-degree murder. Id. at *3.

Boitnott filed his first petition for post-conviction relief on February 12, 1997, alleging that his trial counsel provided ineffective assistance in (1) withdrawing a change of venue motion, (2) failing to communicate a plea offer, (3) failing to seek the removal of a certain juror, (4) neglecting to investigate the case, (5) failing to prepare for trial, and (6) failing to raise timely objections. The postconviction court declined to conduct an evidentiary hearing and denied relief in part based on the same documents submitted in the civil legal malpractice case. We affirmed, concluding that because Boitnott submitted no evidence showing that the state extended a plea offer for second-degree murder, we need not address the application of collateral estoppel. Boitnott v. State, 582 N.W.2d 243, 245 n. 2 (Minn.1998) (Boitnott II), cert. denied, 525 U.S. 1025, 119 S.Ct. 559, 142 L.Ed.2d 465 (1998).

In August 2000, Boitnott filed a second petition for postconviction relief, arguing, among other claims, that trial counsel was ineffective in failing to (1) communicate an in-chambers discussion with a certain juror or seek her removal for bias, (2) seek a change of venue, (3) investigate and prepare. an accident defense, and (4) make certain timely objections. Boitnott acknowledged that these claims were all raised in his first postconviction petition. He also asserted that he received ineffective assistance of appellate counsel on direct appeal. Boitnott claimed that he was entitled to have these claims addressed on their merits because neither the court of appeals nor this court addressed these claims in any prior proceeding.

The postconviction court denied Boit-nott’s petition, concluding that the claim regarding removal of the juror and counsel’s cumulative errors constituted successive petitions for similar relief warranting summary denial under Minn.Stat. § 590.04, subd. 3 (2000). The court addressed the change of venue issue on the merits and concluded that Boitnott did not show that a fair trial was impossible in Benton County. The court also held that a Schwartz hearing was unnecessary because there was no evidence of actual juror misconduct. Finally, the court rejected the claim that appellate counsel was ineffective in declining to raise ineffective assistance of trial counsel claims on which Boitnott would not prevail. We again affirmed the postconviction court. Boitnott v. State, 631 N.W.2d 362, 373 (Minn.2001) (Boitnott III).

On June 26, 2001, while Boitnott’s appeal from the denial of his second postcon-viction petition was pending in this court, Boitnott filed a motion in the Benton County District Court for disclosure of certain photographs that were used as exhibits before the grand jury. Boitnott argued that he had good cause to view the photographs because they were shown to the grand jury but not shown at trial. Boitnott asserted that he had never viewed the photographs and that his “delegates” should be permitted access to them to determine if they contained any discoverable evidence that was concealed from him at the time of his trial.

On July 6, 2001, the state filed a memorandum in opposition to Boitnott’s motion for disclosure of grand jury information. The state argued that Boitnott had not demonstrated a particularized need or shown good cause as mandated by Minn.R.Crim. P. 18.05 and 18.08. More specifically, the state argued that Boitnott (1) had merely asserted without supporting evidence that some photographs may have been offered to the grand jury that were not offered at his trial, (2) had not indicated which photographs he sought disclosed, and (3) had not demonstrated how the production of these photographs would alter the outcome of his trial. Ten days later, the district court denied the motion on the grounds that Boitnott “ha[d] not demonstrated the requisite ‘good cause’ for disclosure of the exhibits used during the grand jury proceeding” as required by Minn. R.Crim. P. 18.05.

Boitnott appealed, again arguing that certain photographs were exhibited before the grand jury that were not exhibited at trial and requested to view the photographs because he had never seen them. Boitnott insisted that he had shown good cause for the disclosure of the photographs because he was serving a mandatory life sentence and needed to determine whether there was any exculpatory evidence contained in the photographs.

In August 2001, we issued an order stating that it was uncertain whether the district court’s order was an adverse final order on a petition for postconviction relief. We directed the parties to submit an informal brief or legal memorandum addressing our authority to hear an appeal from an order denying a motion for access to grand jury exhibits. The parties submitted briefs and, on October 19, 2001, we issued an order stating that (1) Boitnott’s motion was presumably an effort to establish that his conviction was obtained in violation of state or federal law, and (2) the district court’s order denying disclosure of grand jury information was a “colorable final order” on a petition for postconviction relief.

We review a postconviction proceeding to determine only whether sufficient evidence exists to support the post-conviction court’s findings and will not disturb the court’s decision absent an abuse of discretion. Rainer v. State, 566 N.W.2d 692, 695 (Minn.1997). A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief. Minn.Stat. § 590.04, subd. 3. See also State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993).

We begin by noting that a lengthy delay in filing a petition for postconviction relief may in itself provide a sufficient basis for affirming the denial of the petition when there has already been a direct appeal. Sutherlin v. State, 574 N.W.2d 428, 433 (Minn.1998) (holding that a 10 year delay in filing a petition alone may be sufficient grounds for dismissal). We have affirmed a denial of a petition for postcon-viction- relief when the defendant waited 25 years after his conviction to file the petition. Gaulke v. State, 296 Minn. 487, 487, 206 N.W.2d 652, 652 (1973). Similarly, we have affirmed the denial of other petitions based on delay. Black v. State, 560 N.W.2d 83, 85 (Minn.1997) (affirming a denial in part because of an 18 year delay in filing, a petition); Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (affirming a denial in part because of an 8-year delay in filing a petition). In light of the fact that Boitnott’s third petition for postcon-viction relief comes nearly 12 years after we issued our decision in his direct appeal, we have the discretion to decline to address the merits of his claims. Nevertheless, we will proceed- with further analysis of the claims raised in his petition.

Once a petitioner directly appeals a conviction, all matters raised in that appeal or known at the time of appeal will not be considered by a postconviction court in a subsequent petition for relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). See also Minn. Stat. § 509.04, subd. 3. This rule also applies if the petitioner knew or should have known about the issue at the time of appeal. Black, 560 N.W.2d at 85. Because Boitnott knew or should have known about his desire to view the photographs at the time of appeal, we conclude that his claim is procedurally barred under the Knaffla rule. However, an exception to the Knajf-la rule provides that “[e]ven if the legal basis of the claim was reasonably available, this court may allow substantive review in limited situations when fairness so requires and when the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal.” Russell v. State, 562 N.W.2d 670, 672 (Minn.1997) (quoting Roby v. State, 531 N.W.2d 482, 484 (Minn.1995)). Accordingly, even though Boitnott’s claims are untimely and procedurally barred, we choose to address the merits of his claims before the postcon-vietion court.

Minn. R.Crim. P. 18.05, subd. 1, provides in part that the record of grand jury proceedings

shall not be disclosed except to the court or prosecuting attorney or unless the court, upon motion by the defendant for good cause shown, or upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury, orders disclosure of the record or designated portions thereof to the defendant or defense counsel. -

Minn. R.Crim. P. 18.05, subd. 1. The comment to'rule 18.05, subd. 1, provides:

Under Rule 18.05, subd. 1, the record may be disclosed to the court or to the prosecuting attorney, and to the defendant for good cause (This would include a “particularized need.” Dennis v. United States, 384 U.S. 855, 869-70, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).)

Minn. R.Crim. P. 18.05 cmt. Under rule 18.05, the burden is on the defendant to show good cause for the disclosure of grand jury information. Minn. R.Crim. P. 18.05, subd. 1. We have not previously defined “good, cause” in the context of rule 18..05 or grand jury proceedings. The comment to rule 18.05, which is not binding on this court, indicates that a showing of good cause includes a showing of a particularized need. Minn. R.Crim. P. 18.05 cmt. Although Dennis, the case cited by the comment, does not define particularized need, the United States Supreme Court has defined the term to mean that (a) the material sought is needed to avoid a possible injustice in another judicial proceeding, (b) the need for disclosure is greater than the need for continued secrecy, and- (c) the request is structured to cover only the material so needed. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979).

Boitnott contends that he never viewed the grand jury photographic exhibits and would like to view them to determine if they contain exculpatory evidence. In response, the state contends that it has already disclosed the photographs to Boit-nott and submits copies of an “Order Regarding Production of Grand Jury Transcript” and a letter to Boitnott which it claims indicate that the state disclosed investigative data to Boitnott. Boitnott has submitted nothing to refute the state’s contention. Further, Boitnott has not submitted any affidavits or other evidence attesting that neither he nor his attorney ever viewed the exhibits. Because Boit-nott has not done so, we have no basis for concluding that he or his attorney did not view the photographs. We conclude that Boitnott has not met his burden in demonstrating that he did not previously view the grand jury exhibits he now seeks to review.

Even if Boitnott had demonstrated that he or his attorney did not view the photographs, he must also demonstrate good cause to obtain disclosure of this information. Here, Boitnott has only asserted a general claim that the photographs might contain exculpatory evidence. A general claim that disclosure of grand jury transcripts will possibly reveal exculpatory evidence is not enough to demonstrate particularized need. United Kingdom v. United States, 238 F.3d 1312, 1321 (11th Cir.2001); United States v. Rising, 867 F.2d 1255, 1260 (10th Cir.1989) (citing United States v. Short, 671 F.2d 178 (6th Cir.1982), and United States v. Edelson, 581 F.2d 1290, 1291 (7th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1216, 59 L.Ed.2d 456 (1979)). Therefore, we conclude that, even assuming that Boit-nott was denied an opportunity to view the photographs presented to the grand jury, the postconviction court did not abuse its discretion in denying Boitnott’s disclosure motion. We hold that the postconviction court did not err when it denied Boitnott’s petition for postconviction relief.

Affirmed.

GILBERT, J., took no part in the consideration or decision of this case.

      . A detailed statement of the facts surrounding the murder are set forth in State v. Boitnott, 443 N.W.2d 527 (Minn.1989).

      . In his malpractice suit, Boitnott raised other issues unrelated to his murder case.

      . Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (Minn.1960). The purpose of a Schwartz hearing is to investigate alleged juror misconduct. See State v. Martin, 614 N.W.2d 214, 225-26 (Minn.2000).


author: Paul H. Anderson Associate Justice

text:
    In re Petition for REINSTATEMENT to the Practice of Law OF Richard J. KADRIE.
    No. C5-90-383.
    Supreme Court of Minnesota.
    March 12, 2002.
   ORDER

The court reinstated petitioner Richard J. Kadrie to the practice of law on December 9, 1999. In re Kadrie, 602 N.W.2d 868 (Minn.1999). Petitioner was placed on supervised probation for two years and barred from practicing law as a sole practitioner. Id. at 873. The court provided that after two years, petitioner could request that the practice restriction be lifted by filing an affidavit with the court and giving notice to the Office of Lawyers Professional Responsibility (OLPR) of his request. Id. The court also provided that if the OLPR had good cause, it could request a hearing on whether it is appropriate to lift the practice restriction. Id.

Petitioner has filed an affidavit stating that he has successfully completed supervised probation and requesting that the restriction on solo practice be lifted. The OLPR states that it does not have good cause to request a hearing on petitioner’s request.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the request of Richard J. Kadrie to return to the solo practice of law be, and the same is, granted effective immediately.

BY THE COURT:

Paul H. Anderson Associate Justice