State v. Jackson , 316 Or. App. 676 ( 2021 )

676
Submitted October 4; in Case No. 19CR79427, affirmed; in Case No. 18CR68779,
portion of judgment requiring defendant to pay probation-violation fee vacated,
remanded for resentencing, otherwise affirmed December 29, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DOWD STEVEN JACKSON,
Defendant-Appellant.
Klamath County Circuit Court
18CR68779, 19CR79427;
A173613 (Control), A173614
501 P3d 104
Roxanne B. Osborne, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, and Weston Koyama, Assistant
Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
In Case No. 19CR79427, affirmed. In Case No. 18CR68779,
portion of judgment requiring defendant to pay probation-
violation fee vacated; remanded for resentencing; otherwise
affirmed.
Cite as 316 Or App 676 (2021) 677
PER CURIAM
In these consolidated cases, one of which involves
revocation of defendant’s probation, defendant contends that
the court erred in imposing a $25 probation-violation fee. In
Case No. 18CR68779, defendant was on probation for felon in
possession of a firearm, ORS 166.270.1 After finding defen-
dant in violation, the trial court revoked probation, imposed
a sentence of 30 months’ imprisonment, and imposed a
$25 probation-violation fee. On appeal, defendant challenges
the imposition of the fee because it was not announced in
open court at sentencing. See generally State v. Hillman, 293
Or App 231, 233, 426 P3d 249 (2018) (court erred in impos-
ing probation-violation fee not announced in open court).
The state concedes the error. We agree and accept
the state’s concession. See, e.g., State v. Rion, 311 Or App 222,
486 P3d 68 (2021) (accepting similar concession). Defendant
makes several arguments that the proper remedy in this
case is to simply reverse the fee without remanding for
resentencing; we reject those arguments without discussion.
The proper remedy in this circumstance is to vacate the
fee and remand for resentencing. See State v. Vierria, 307
Or App 46, 48, 476 P3d 506 (2020) (noting that remedy in
this circumstance is to remand for resentencing to give the
defendant the opportunity to argue for suspension of the fee
or to make arguments concerning payment arrangements).
In Case No. 19CR79427, affirmed. In Case No.
18CR68779, portion of judgment requiring defendant to pay
probation-violation fee vacated; remanded for resentencing;
otherwise affirmed.
1
Defendant makes no assignment of error concerning the other consolidated
case, Case No. 19CR79427.