Summary
cautioning trial courts "to make an appropriate finding concerning appellant's ability to pay"
Summary of this case from State v. Lopez-SolisOpinion
No. C1-83-1592.
May 29, 1984.
Appeal from the Kanabec County Court, Ben F. Grussendorf, J.
Michael Lee Ramstad, Brooklyn Park, pro se.
Hubert H. Humphrey, III, Atty. Gen., Mark B. Thompson, Asst. Kanabec County Atty., Mora, for respondent.
Considered and decided by LANSING, P.J., and FOLEY and LESLIE, JJ., with oral argument waived.
OPINION
The appellant was convicted by a jury of a misdemeanor DWI, was sentenced, and appeals from the sentence. There is no transcript of the evidence. The appellant was indigent at time of trial.
Appellant contends he should have been sentenced in accordance with certain policy guidelines on first offenses in the Tenth Judicial District. Appellant is in error. The statute, rather than any policy guideline, fixes the maximum punishment. The appellant's sentence was within the statutory limits.
Our review of the sentence reflects that appellant, together with other conditions, was ordered "to pay the sum of $200.00 as costs of prosecution after payment of the fine and surcharge." Such costs are permitted under Minn.Stat. § 631.48 (1982), but we caution the trial court before seeking to collect the costs of prosecution, to make an appropriate finding concerning appellant's ability to pay. See Fuller v. Oregon, 417 U.S. 40, 46-47, 94 S.Ct. 2116, 2121-2122, 40 L.Ed.2d 642 (1974); and State v. Kottenbroch, 319 N.W.2d 465, 473 (N.D. 1982).
Other claimed errors raised by appellant have been considered and determined to be without merit.
DECISION
Affirmed.