2008-M-084             State of Minnesota, Respondent, vs. Michael J. Dahlin, Appellant.

Appellant Michael J. Dahlin appeals his conviction for aiding and abetting second-degree murder.  The facts underlying the crime are detailed in our opinion in Dahlin’s direct appeal.   There, we reversed Dahlin's conviction for first-degree murder because we held that the district court had erred when it did not submit a lesser-included offense instruction to the jury.  

We remanded the matter for a new trial, and it was assigned to the same judge who had presided over the first trial.   

Dahlin sought to peremptorily remove the judge, but the district court denied his request..   Dahlin then petitioned the court of appeals for a writ of prohibition to prevent the judge from presiding over the

second trial.  The court of appeals denied the writ, and Dahlin did not petition our court

for further review. 

Dahlin‟s second jury trial commenced the day before the court of appeals denied his petition for a writ of prohibition.  Following trial, the jury found Dahlin guilty of aiding and abetting second-degree intentional murder.  The district court convicted Dahlin of this offense and sentenced him to 433 months in prison.  The court of appeals affirmed Dahlin's conviction in an unpublished opinion, , and we granted review on the removal issue. 

Dahlin argues that Minn. R. Crim. P. 26.03, subd. 13(4), guarantees a party the right to peremptorily remove a judge from presiding over a new trial on remand.  We review the construction of a rule of procedure de novo.

Minnesota Rule of Criminal Procedure 26.03, subd. 13(4), “provides for removal as a matter of right of a judge assigned to a criminal trial or hearing.”  Under the rule, a party may file a notice to remove the

judge assigned to its trial within 7 days after the party receives notice of the judicial assignment.  The rule contains an exception to removal as of right, however, by providing: “No notice to remove shall be effective against a judge who has already presided at the trial, Omnibus Hearing, or other evidentiary hearing of which the party had notice..  Dahlin asserts that this exception does not apply to his notice to remove.  Specifically, he argues that remand for a new trial revives the right of peremptory removal, because a new trial is a new determination of guilt and therefore that the judge he sought to remove had not already presided over the trial.   We disagree.

A party is required to timely petition this court for review of the denial of a writ of prohibition when the issue involves the right of peremptory removal .

When a case has been remanded for a new trial and is assigned to the same judge who presided over the first trial, a notice to peremptorily remove the judgeis not effective.

Because the judge Dahlin sought to remove had presided over Dahlin's first trial, we hold that Dahlin‟s notice of peremptory removal was not effective.  We therefore affirm the conviction.

Gildea (Page, Paul Anderson, Meyer, Barry Anderson, and Dietzen)           

               Took no part:  Magnuson

[MURDER}