Opinion
A21-0868
01-03-2022
State of Minnesota, Respondent, v. Robert John Duffy, Appellant.
Yellow Medicine County District Court File No. 87-CR-20-299
Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and Smith, John, Judge.
ORDER OPINION
Francis J. Connolly Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Robert Duffy pleaded guilty to indecent exposure, a misdemeanor. The district court, in accordance with Duffy's plea agreement with respondent State of Minnesota, sentenced Duffy to serve 90 days in jail, but stayed execution of the sentence and placed Duffy on probation for that time period. The district court also required Duffy to reimburse the community corrections department for the $700 cost of a court-ordered sex-offender assessment. This appeal follows.
2. Duffy argues that the order requiring him to "reimburse community corrections for the cost of the sex-offender assessment was unauthorized by law and must be vacated." The state did not submit a brief in this matter and does not otherwise argue that the district court properly required Duffy to reimburse community corrections for the cost of the sex-offender assessment. Instead, the state filed a letter with this court noting that "while the cost of the sex-offender assessment was $800.00, $700.00 was covered by Minnesota Department of Corrections Grant." Thus, the state requests that "if" this court concludes that Duffy is entitled to a refund, the amount should "be limited to the $100 [Duffy] actually paid out of pocket."
3. "In a criminal action, upon conviction of the defendant, the court may order as part of the sentence that defendant shall pay the whole or any part of the disbursements of the prosecution . . . ." Minn. Stat. § 631.48 (2020). "The costs allowed [under section 631.48] must either be expressly provided for in the statute or analogous to costs taxable to the prevailing party in a civil action." State v. Lopez-Solis, 589 N.W.2d 290, 293 (Minn. 1999). Review of the prosecution-costs statute involves a question of law subject to de novo review. Id. at 292.
4. Minnesota law provides that "[w]hen a person is convicted of a sex offense, the court shall order an independent professional assessment of the offender's need for sex offender treatment to be completed before sentencing." Minn. Stat. § 609.3457, subd. 1 (2020). But the statute does not allow the district court to order a defendant to pay for the cost of the assessment. See id. Moreover, there is nothing in Minn. Stat. § 631.48 permitting a court to order a defendant to pay the cost of a sex-offender assessment. Therefore, we reverse the order requiring Duffy to reimburse community corrections for the cost of the sex-offender assessment, and we remand for resentencing. On remand, if it is established that Duffy paid any portion of his sex-offender assessment, his refund is limited to the amount he actually paid.
IT IS HEREBY ORDERED:
1. The district court's sentencing order is reversed and the case is remanded for resentencing.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel. Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.