State v. Baccaro, 452 P.3d 1022

Defendant convicted after jury trial of fourth-degree assault, harassment, disorderly conduct, and attempted criminal mischief; sentencing hearing occurred with defendant present.
At sentencing the court imposed 60 months of bench probation but did not announce a $100 bench-probation fee in the defendant’s presence.
A written judgment entered later the same day included the $100 bench-probation fee (ORS 137.540(8)).
Defendant appealed, arguing that imposing the fee in the written judgment outside his presence violated Article I, §11 of the Oregon Constitution and the Fourteenth Amendment.
The state conceded Hillman applied but argued any error was harmless because the fee is statutorily mandatory; the Court of Appeals held the fee is part of the sentence and the court can suspend execution of that portion, so the defendant was denied a meaningful opportunity to seek suspension; the fee portion was vacated and the case remanded for resentencing.

Issue	State's Argument	Defendant's Argument	Held
Whether imposing the $100 bench-probation fee in the written judgment without announcing it in the defendant’s presence is reversible error	Fee is mandatory by statute; no discretion to waive, so any omission at sentencing is harmless	Defendant was deprived of the chance to advocate for waiver or suspension; error harmed him	Reversible as to the fee: fee is part of the sentence and the defendant had a right to argue for suspension of its execution; vacated and remanded
Whether the trial court has discretion to avoid or reduce the fee	The statute’s use of “shall” makes the $100 fee mandatory; court cannot delete it under ORS 137.540	Court can waive or reduce under other statutes or constitutional proportionality grounds	The $100 fee is statutorily required under ORS 137.540(8) and not deletable under that subsection, but the court retains authority under ORS 137.010 to suspend execution of that portion of the sentence
Preservation: whether defendant forfeited the objection by not objecting at sentencing	Defendant failed to preserve error by not objecting at the hearing	Error first appeared in the written judgment, so defendant excused from preservation	Preservation excused because the fee first appeared in the written judgment; objection preserved on appeal

State v. Hillman, 293 Or. App. 231 (relied on to hold that fees not announced in defendant’s presence may be reversible error)
State v. Sankey, 289 Or. App. 846 (state previously conceded similar error was reversible)
State v. Lane, 357 Or. 619 (discusses suspension of imposition or execution of sentence and relevance to misdemeanor probation)
State v. White, 269 Or. App. 255 (identifies the $100 bench probation supervision fee as a required probation condition)
Doyle v. City of Medford, 347 Or. 564 (explains that “shall” ordinarily imposes a mandatory obligation)