This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1887

State of Minnesota,

Respondent,

vs.

Michael Patrick Morin,

Appellant.

Filed January 19, 1999

Reversed and remanded

Holtan, Judge[*]

Koochiching County District Court

File No. KX96620

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

David C. Johnson, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, MN 56649 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Short, Presiding Judge, Randall, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

This appeal challenges a district court's order imposing restitution for transportation costs based on removal of a judge. We reverse and remand.

FACTS

In 1996, Michael Morin pleaded guilty to first-degree criminal damage to property. The district court sentenced him and placed him on probation. Morin was subsequently arrested on another charge of criminal damage to property and for the theft of a snowmobile. These offenses violated his probation. Morin filed a notice to remove the judge who had sentenced him on the 1996 conviction. The judge removed himself from hearing the new charges, but retained jurisdiction on the probation violation because Morin did not show cause for removal. The Koochiching County sheriff's department transported Morin from International Falls, where he was being held, to Roseau to appear before a different judge on the new charges. Morin pleaded guilty and the Roseau County judge sentenced him.

Morin then appeared before the judge who had sentenced him on the 1996 offense for his probation violation. That judge executed the previously stayed sentence and ordered that Morin serve it concurrently with his other sentence. The judge also imposed $575 in restitution on Morin under Minn. Stat. § 631.48 (1996) for the cost of transporting him from International Falls to Roseau. Morin appeals from the imposition of restitution for the transportation costs.

D E C I S I O N

In ordering Morin to pay restitution on the costs of his transportation, the court held that his costs of transportation were a cost of prosecution that could be imposed under Minn. Stat. § 631.48 (1996). Statutory interpretation and construction are questions of law that this court reviews de novo. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (interpretation); Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985) (construction). We agree that some transportation costs are a cost of prosecution. See Minn. Stat. § 631.48 (1996) (allowing for reimbursement of extradition costs). But because Morin's transportation costs are based on his exercise of the right to remove a judge, the cost is a cost of trial and not a cost of prosecution.

Morin had a right to remove the judge from the new charges. Minn. R. Crim. P. 26.03, subd. 13(4). Morin's exercise of this right is a part of the cost of providing a fair trial. Several cases have distinguished the cost of trial from the cost of prosecution. See State v. McCarthy, 259 Minn. 24, 32-33, 104 N.W.2d 673, 679 (1960) (costs of prosecution do not include jury fees or expenses); State v. Morehart, 149 Minn. 432, 433-34, 183 N.W. 960, 960 (1921) (costs of prosecution do not include "those items of expenses connected with the trial"); see also Minn. Stat. § 627.02 (1996) (when trial's venue is moved, originating county and not defendant is responsible for paying trial costs). Although Morin's decision to remove the judge may have led the county to incur additional costs, the judge should not have imposed restitution under the statute for those transportation costs.

We therefore reverse the imposition of restitution for the costs of transporting Morin and remand to the district court for proceedings consistent with this decision.

Reversed and remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.