307 Or. App. 270 - State v. Carter

                                  270

  Submitted August 7; $2,000 mandatory fine on DUII conviction reversed,
     remanded for resentencing, otherwise affirmed October 14, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                   DONALD RAY CARTER,
                     Defendant-Appellant.
                  Crook County Circuit Court
                     19CR00154; A170672

475 P3d 127



   Michael J. Gillespie, Senior Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
  $2,000 mandatory fine on DUII conviction reversed;
remanded for resentencing; otherwise affirmed.
Cite as

307 Or App 270

 (2020)                             271

        PER CURIAM
         In this criminal appeal, defendant was convicted
of driving under the influence of intoxicants (DUII), ORS
813.011, which was his third DUII conviction. The trial
court imposed, in addition to a sentence of 90 days of jail as
a condition of probation, a $2,000 fine under the belief that
the fine was mandatory. Defendant asserts that that belief
was mistaken. That is, under ORS 813.010(6)(c), for a person’s third or subsequent conviction, in addition to any other
sentence the trial court may impose, the court must impose
a $2,000 minimum fine “if the person is not sentenced to
a term of imprisonment.” Because his jail sentence was a
term of imprisonment, defendant argues, it was error for
the court to impose the mandatory DUII fine. See State v.
Frier,

264 Or App 541, 548

333 P3d 1093

 (2014) (concluding
that a jail sentence as a condition of probation was a sentence of imprisonment and, therefore, the trial court was not
required to impose a $2,000 fine).
          Defendant did not object to the court’s imposition
of the fine in open court but asks on appeal that we correct it as plain error. ORAP 5.45(1). The state concedes that
imposing the fine as a mandatory fine was plain error. We
agree and accept the state’s concession that the error was
plain. We also conclude that it is appropriate to exercise
our discretion to correct the error for the reasons expressed
in State v. Larson,

289 Or App 60

, 62,

408 P3d 273

 (2017)
(exercising our discretion to correct the plain error of imposing $2,000 in fines considering the gravity of the error and
the ends of justice). We therefore reverse the portion of the
judgment imposing a $2,000 mandatory fine and remand for
resentencing.
       $2,000 mandatory fine on DUII conviction reversed;
remanded for resentencing; otherwise affirmed.