(dissenting).
DISSENT
Although I agree with the majority’s conclusion that Minn.Stat. § 244.11, subd. 3 (2004) is unconstitutional and does not preclude Losh’s appeal, I disagree with the majority’s conclusion that Blakely does not apply to this appeal. The focus of the majority opinion on “direct review” only addresses one element of the federal test for retroactivity and thus does not provide a complete answer to the issue before us. Because the federal test permits retroac-tivity of a new rule for the conduct of criminal prosecutions to all cases “pending on direct review or not yet final,” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (emphasis added), it is also necessary to determine when Losh’s conviction became “final.” Griffith defines “final” as when the case has “run the full course of appellate review” and “the availability of appeal [has been] exhausted.” Id. at 321 n. 6 and 323, 107 S.Ct. 708. I conclude that Losh’s conviction was not final at the time Blakely was announced because, under State v. Fields, 416 N.W.2d 734, 736 (Minn.1987), her case had not run the full course of appellate review and her right to direct appeal had not been exhausted. Accordingly, I would reverse the court of appeals and remand the case to the district court for resentenc-ing in light of Blakely.
I begin by focusing on the federal law of retroactivity. As we recognized in O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004), the scope of the retroactivity of a new rule of federal constitutional criminal procedure is for the United States Supreme Court to decide under the United States Constitution. In Griffith, the court began the process of achieving greater uniformity in its retroactivity determinations by adopting the view of Justice Harlan that “retroactivity must be rethought.” Griffith, 479 U.S. at 321-23, 107 S.Ct. 708 (quoting United States v. Johnson, 457 U.S. 537, 548, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). The Court then expressed approval of Justice Harlan’s concept of finality, quoting from his concurring opinion in Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971):
“If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. * * * In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” Mackey v. United States, 401 U.S., at 679, 91 S.Ct. 1160 (opinion concurring in judgment).
479 U.S. at 323, 107 S.Ct. 708 (emphasis added). The Court defined “final” as follows:
By “final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for cer-tiorari finally denied. See United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (citing Linkletter v. Walker, 381 U.S. 618, 622 *898n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)).
479 U.S. at 321 n. 6, 107 S.Ct. 708 (emphasis added).
In Teague v. Lane, 489 U.S. 288, 299-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Court further adopted Justice Harlan’s view on the limits of finality, concluding that the new rule need not be retroactively applied to cases on “collateral review.” But the Court equated “collateral review” with habeas corpus, quoting Justice Harlan as follows:
Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in read-judicating convictions according to all legal standards in effect when a habeas petition is filed.
Teague, 489 U.S. at 306, 109 S.Ct. 1060 (quoting Mackey, 401 U.S. at 682-83, 91 S.Ct. 1160).
I take from these cases the understanding that a case is “not yet final” when the availability of appeal has not been exhausted and appellate review has not run its full course. Alternatively, I also take from these cases that “direct review” includes all forms of appellate review that are not considered collateral review. Either way, for Losh, her case was not yet final (because the appeal rights made available in Fields had not been exhausted or run their full course) and her case was not on collateral review at the time that Blakely was announced.
O’Meara does not lead me to a different conclusion because any comments we made in O’Meara about when a case is “final” were dicta and, to the extent they were inconsistent with Griffith and Teague, they are not controlling. We did say in O’Meara that the conviction became final on the date the time for direct appeal expired. 679 N.W.2d. at 340. But that comment was only fact specific to O’Meara’s case. O’Meara’s sentence had been executed, not stayed, and thus the conviction did become final when the time for direct appeal expired. And because the new rule of criminal procedure that we were dealing with in O’Meara had been announced before the time had expired for O’Meara to take direct appeal, that comment was dicta. Further, we fully recognized the broader rule of Griffith and Teague that “a case is pending until such time as the availability of appeal has been exhausted, the time for a petition for cer-tiorari has elapsed or a petition for certio-rari with the Supreme Court has been filed and finally denied.” 679 N.W.2d. at 339.
For Losh, the questions under Griffith and Teague are whether, at the time Blakely was announced, (1) the availability of an appeal from Losh’s conviction had been exhausted (i.e., appellate review of that conviction had run its course), or (2) Losh’s appellate rights already had been relegated to collateral review. I would answer those questions in the negative. I would conclude that the consequence of our ruling in Fields is that appellate review of a stayed sentence is not exhausted until the time to appeal from any revocation of the stay has expired and that the appellate review of an order denying a motion to modify a stayed sentence is not collateral review.
Fields decided that a defendant in Losh’s position need not file a postconviction petition to obtain review of his sen*899tence, but could appeal directly from the denial of his motion to modify the sentence when his stay of execution is revoked. We held that a postconviction petition was not preferable, and we concluded that a defendant could challenge his departure by a simple motion when his stay was revoked. Our ruling undoubtedly encouraged persons in Losh’s position to forego an immediate appeal and, in my view, provided assurance that they would still be able to receive a full review of their sentences upon revocation. We provided this encouragement and assurance for our own reasons, to avoid the burden on the court system of an “increase in sentencing appeals” that might turn out to be unnecessary. Our ruling in Fields necessarily implied that a defendant’s right to appellate review of a departure in a stayed sentence would not be exhausted until after revocation of the stay and that such review, when sought after revocation, would not be treated as collateral review. Accordingly, Losh’s case meets the criteria of Griffith and Teague for retroactive application of Blakely.
Viewed another way, if we apply the full text of Griffith, the definition of finality requires not only that the availability of appeal to our court has been exhausted, but also that the time for a petition for certiorari to the Supreme Court has elapsed or a petition has been denied. Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708. In view of Fields, could Losh petition for certiorari to the United States Supreme Court from the decision of the majority that Blakely does not apply to Losh’s case? I conclude that such a petition would not be time barred and, accordingly, that Losh’s appeal is not yet final.
Finally, I address one of the underlying concerns expressed in Griffith that “selective application of new rules violates the principle of treating similarly related defendants the same.” Griffith, 479 U.S. at 323, 107 S.Ct. 708. I would agree that any retroactivity rule will inevitably have some degree of inequity because the line must be drawn somewhere. But I am concerned that the decision of the majority treats a defendant with a stay of execution of her sentence differently from the class of defendants who are perhaps most similarly situated, those who have received a stay of imposition of their sentences. The latter class of defendants would clearly benefit from a new rule of criminal procedure announced after they were convicted but before the time had expired to appeal their sentence after the stay of imposition was revoked and the sentence executed. Thus, two defendants who committed a crime on the same day could have significantly different laws applied to them, depending on whether they received a stay of execution or a stay of imposition. Yet, these two defendants are more similar to each other than they are to a third defendant whose sentence was immediately executed because the former two are essentially on probation until revocation, while the third is in prison.
For all these reasons, I would reverse the court of appeals’ decision and hold that Blakely applies to Losh’s appeal of the departure made in her sentence.