State v. Peden , 316 Or. App. 261 ( 2021 )

261
Submitted November 10; portion of judgment requiring defendant to pay
probation-violation fee vacated, remanded for resentencing, otherwise affirmed
December 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RAYMOND DARVEN PEDEN III,
aka Ray Peden, aka Raymond Peden,
aka Raymond Darven Peden,
Defendant-Appellant.
Klamath County Circuit Court
20CR07613, 20CR19852;
A173999 (Control), A174000
501 P3d 101
Dan Bunch, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Weston Koyama, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Portion of judgment requiring defendant to pay probation-
violation fee vacated; remanded for resentencing; otherwise
affirmed.
262 State v. Peden
PER CURIAM
Defendant appeals a judgment revoking his proba-
tion on a conviction for delivery of methamphetamine, ORS
475.890. He argues that the court erred in imposing a $25
probation-violation fee in the judgment, because it was not
announced in open court. The state concedes that the court
erred by imposing a $25 probation-violation fee for the first
time in the judgment. See State v. Hillman, 293 Or App 231,
233, 426 P3d 249 (2018) (trial court erred in imposing $25
probation-violation fee not announced in open court). We
agree and accept the state’s concession.
Defendant argues that under Hillman, the proper
remedy is to simply reverse the portion of the judgment
imposing the fee. The state argues that the proper rem-
edy is to remand for resentencing. We agree with the state.
The correct remedy here is to vacate the fee and remand
for resentencing. See State v. Vierria, 307 Or App 46, 48,
476 P3d 506 (2020) (explaining that the appropriate remedy
for imposition of probation-violation fee not announced in
open court is to remand for resentencing in order to give the
defendant the option to argue for waiver of the mandatory
fee or to make arguments concerning payment options).
Portion of judgment requiring defendant to pay
probation-violation fee vacated; remanded for resentencing;
otherwise affirmed.