State v. Ross

EDMONDS, P. J.

Defendant petitions for reconsideration of our disposition of this case. State v. Ross, 199 Or App 1, 110 P3d 630 (2005). We allow the petition and modify our disposition.

In our previous opinion we held that the trial court erred in sentencing defendant to pay the costs of his court-appointed attorney because it faded to make findings concerning his current ability to pay. Ross, 199 Or App at 14-15. We affirmed on all other assignments of error. Our disposition read: “Remanded for resentencing as to costs of court-appointed counsel; otherwise affirmed.” In his petition, defendant argues that ORS 138.222(5) requires us to remand the entire case for resentencing. That statute provides, in part:

“If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing. The sentencing court may impose a new sentence for any conviction in the remanded case.”

The Supreme Court has held that the requirement in ORS 138.222(5) for resentencing on the entire case “applies to all errors for which review is authorized by ORS 138.222(3) and (4),” specifically including orders of restitution. State v. Edson, 329 Or 127, 130 n 1, 138-39, 985 P2d 1253 (1999). We see no difference in this respect between a sentence to pay restitution and a sentence to pay court-appointed attorney fees.

Reconsideration allowed; disposition modified to provide “Remanded for resentencing; otherwise affirmed” and adhered to as modified.