492 P.3d 1277
Or. Ct. App.2021Background
- Defendant convicted by jury of DUII (ORS 813.010), recklessly endangering another (ORS 163.195), and reckless driving (ORS 811.140); all Class A misdemeanors.
- At sentencing the prosecutor recommended formal probation with a "drug package," a $2,000 fine, a $255 DUII conviction fee, and $100 fines on the other counts; the prosecutor separately listed fines and fees after mentioning the drug package.
- Defense counsel asked for probation, the drug package, and "standard fines and fees," but did not expressly discuss specific fees on the record.
- The trial court imposed 60 days custody, two years formal probation with the drug package, a $2,000 fine, lifetime revocation on Count 1, and $100 fines on Counts 2 and 3, but did not orally announce the $255 DUII conviction fee; that fee was later added to the formal judgment.
- Defendant appealed, arguing the $255 DUII conviction fee could not be imposed in the judgment because it was not announced at sentencing and defendant therefore lost the opportunity to request a waiver for indigency; appellate court vacated the $255 fee and remanded for resentencing, otherwise affirming.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could impose a $255 DUII conviction fee in the judgment when the fee was not announced at sentencing | The fee was effectively announced via the prosecutor’s recommendation and the court’s adoption of the "drug package" | The fee was never announced in open court; defendant lost chance to request waiver for indigency | The court erred: fee was not announced; vacated that portion of judgment and remanded for resentencing; otherwise affirmed |
Key Cases Cited
- State v. Tison, 292 Or App 369 (holding it is error to impose fines or fees in a judgment that were not announced at sentencing)
- State v. White, 269 Or App 255 (explaining a court’s adoption of the prosecutor’s recommended sentence can incorporate specific fines and general probation conditions when the adoption is clear)
- State v. Baccaro, 300 Or App 131 (later imposition of a fee outside defendant’s presence is not harmless when the defendant lost opportunity to seek waiver)
- State v. Nilsen, 125 Or App 402 (describing the "drug package" as a variable set of special probation conditions)
- State v. Nguyen, 298 Or App 139 (recognizing imposition of the drug package as a special probation condition)