State v. Cumpston ( 2020 )

479
185 v. Cumpston
State 303 8,
April Or2020
App
Submitted November 16, 2018; Portion of judgment requiring defendant to pay a
$1,255 DUII fine vacated, remanded for resentencing, otherwise affirmed
April 8, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DALE ANTHONY CUMPSTON,
Defendant-Appellant.
Coos County Circuit Court
16CR76160; A164797
461 P3d 1042
Richard L. Barron, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
PER CURIAM
Portion of judgment requiring defendant to pay a $1,255
DUII fine vacated; remanded for resentencing; otherwise
affirmed.
480 State v. Cumpston
PER CURIAM
Defendant appeals from a judgment of conviction
for misdemeanor driving under the influence of intoxicants
(DUII) and reckless driving. Among other terms, defendant
was sentenced to 30 months’ probation and a $1,255 fine on
the DUII conviction. On appeal, defendant challenges cer-
tain special conditions of probation and $255 of the DUII
fine, because those terms were not announced in open court.
The state concedes that the court erred in imposing a DUII
fine greater than the $1,000 fine announced in court. The
state argues, however, that we should not reach the issue of
the special conditions of probation, because the erroneous
imposition of the fine requires a remand for resentencing
and the trial court can address any error with regard to
those conditions at that time.
We accept the state’s concession and agree with the
state that the correct disposition is to vacate the fine and
remand for resentencing. See State v. Tison, 292 Or App
369, 374-75, 424 P3d 823, rev den, 363 Or 744 (2018) (error
for court to impose DUII fine greater than announced at
sentencing hearing; vacating fine and remanding for resen-
tencing under former ORS 138.040 (2015), repealed by Or
Laws 2017, ch 529, § 26, where the record was unclear if the
trial court intended to waive the $255 fee).1 As a result, we
need not reach defendant’s assignment of error to the spe-
cial conditions of probation. See State v. Coghill, 298 Or App
818, 820, 448 P3d 1195 (2019) (stating that the defendant
can address at resentencing the other sentencing terms the
defendant contended were not announced in open court).
Portion of judgment requiring defendant to pay a
$1,255 DUII fine vacated; remanded for resentencing; other-
wise affirmed.
1
Former ORS 138.040 (2015) was repealed in 2017 as part of a comprehen-
sive restructuring of the laws governing criminal appeals. See Senate Bill (SB)
896 (2017); Or Laws 2017, ch 529, § 26. Because the judgment in this case was
entered before January 1, 2018, the effective date of SB 896, the former statute
applies.