State v. Epps ( 2015 )

PER CURIAM

In this criminal case, the state appeals from a judgment that imposed a 90-day term of incarceration as a result of defendant’s conviction for felony driving under the influence of intoxicants (DUII), but suspended execution of that sentence. The state is correct that the sentencing court erred in suspending execution of the 90-day term of incarceration. ORS 813.011 provides that DUII is a Class C felony, for which a defendant “shall be sentenced to a mandatory minimum term of incarceration of 90 days” if the defendant has been convicted of DUII at least twice within the 10 years prior to the current offense. As we recently held in State v. Urie, 268 Or App 362, 367, 341 P3d 855 (2014), “ORS 813.011(3) does not permit a sentencing court to suspend execution of, or reduce in any way, the mandatory minimum 90-day term of incarceration provided in the statute.”

Defendant argues in the alternative that ORS 813.011, which was enacted by voters in 2011 as part of Measure 73, is invalid because Measure 73 violated the single-subject rule found in Article IV, section 1(2)(d), of the Oregon Constitution. However, another recent case disposes of that argument as well. We concluded in State v. Mercer, 269 Or App 135, 142, 344 P3d 109 (2015), that “Measure 73 was not adopted in violation of the single-subject requirement of Article IV, section 1(2)(d).”

Remanded for resentencing; otherwise affirmed.