340 P.3d 68
Or. Ct. App.2014Background
- Defendant was convicted of misdemeanor DUII in 2009 and appealed; the conviction was reversed and remanded to the trial court.
- On remand, defendant pleaded guilty and a judgment of conviction entered on June 22, 2012, with the sentence discharged because requirements of the original sentence were completed.
- The trial court noted that the DUII conviction fee had increased from $130 to $255 since defendant’s original conviction, and that the amended statute required imposition of the higher fee after the effective date, regardless of when the offense occurred.
- Defendant argued the court should impose the $130 fee applicable at the time of his original conviction to avoid an ex post facto violation.
- The trial court imposed the higher $255 fee under the 2012 statute; defendant appealed and the state moved to dismiss for lack of jurisdiction under ORS 138.050.
- The appellate court dismissed the appeal for lack of jurisdiction, concluding ORS 138.050(1) did not authorize review of this dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appellate court has jurisdiction under ORS 138.050(1). | State argues no jurisdiction under ORS 138.050(1). | Taylor argues the issue falls within ORS 138.050(1)(a) as a claim the disposition exceeds the maximum by law. | No jurisdiction; appeal dismissed for lack of statutory review authority. |
| Whether ORS 138.050(1) permits review of constitutional challenges to a misdemeanor disposition. | State relies on Cloutier to limit review to crisis under ORS 138.050(1). | Defendant contends the claim is not a constitutional challenge and falls within ORS 138.050(1). | Disposition not reviewable under ORS 138.050(1); constitutional claims must be left to post-conviction relief. |
| Whether the ex post facto claim is cognizable under ORS 138.050(1) when the fee is set by statute but applied after a different effective date. | State asserts lack of jurisdiction under Cloutier; issues outside 138.050(1) cannot be reviewed. | Cloutier supports review of the statutory maximum; defendant argues the fee exceeds maximum by law. | Not cognizable under ORS 138.050(1); ex post facto claim requires post-conviction relief. |
Key Cases Cited
- State v. Cloutier, 351 Or 68 (Or. 2011) (interpreted ORS 138.050(1) to not encompass constitutional claims other than cruel and unusual punishment)
- Waybrant v. Bernstein, 294 Or 650 (Or. 1983) (appeal must be authorized by statute)
- State v. Davis, 265 Or App 425 (Or. App. 2014) (reviews scope of ORS 138.050 for misdemeanor appeals post-plea)