State v. Runyon

                                   400

 Submitted January 14; portion of judgment requiring defendant to pay $255
  DUII conviction fee reversed, portion of judgment requiring defendant to
 pay $100 bench probation fee vacated, remanded for resentencing, otherwise
                        affirmed September 2, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                     CODY O. RUNYON,
                  aka Cody Stephen Knapp,
                   aka Cody Orion Runyon,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    17CR22889; A168018
                                

  Christopher A. Ramras, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Anna Belais, Deputy Public Defender, and Stacy
Du Clos, Deputy Public Defender, Office of Public Defense
Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, 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 $255
DUII conviction fee reversed; portion of judgment requiring defendant to pay $100 bench probation fee vacated;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2020)                              401

        PER CURIAM
         Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, and placed on
probation. On appeal, he argues that the trial court erred
in imposing a $255 DUII conviction fee and a $100 bench
probation fee that were not pronounced in open court and
seeks reversal of those fees. The state concedes that the trial
court erred, but argues that the case should be remanded
for resentencing because the probation fee is mandatory
under ORS 137.540(8) and it is not clear from the record
whether the court intended to waive the DUII conviction fee.
On review of the record, we conclude that it is clear that
the trial court intended to waive both of those fees. See generally State v. Sankey, 

, 

 (2018)
(reversing $255 DUII conviction fee and $100 bench probation fee where record was clear that the court intended to
waive them). However, as we held in State v. Baccaro, 

, 

 (2019), the trial court does not
have discretion to waive the mandatory probation fee. We
further explained in Baccaro that the trial court “retains
the authority to suspend execution of that portion of the
sentence,” and for that reason remanded for resentencing
so that the defendant had the opportunity to advocate for
the trial court to use its discretionary power to suspend the
execution of the probation fee. 

. It is appropriate to
do the same here.
        Portion of judgment requiring defendant to pay $255
DUII conviction fee reversed; portion of judgment requiring defendant to pay $100 bench probation fee vacated;
remanded for resentencing; otherwise affirmed.