State v. Davis

                                    168

   Submitted February 25; portion of judgment requiring defendant to pay
probation-violation fee vacated, remanded for resentencing, otherwise affirmed
                                 March 17, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                     JIMIKA LEE DAVIS,
                       aka Jimika Davis,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     16CR09001; A171859
                                

   Ulanda L. Watkins, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   Portion of judgment requiring defendant to pay probation-violation fee vacated; remanded for resentencing; otherwise
affirmed.
Cite as 

 (2021)                            169

        PER CURIAM
         Defendant appeals a judgment in which the trial
court revoked his probation and imposed a $25 probation-violation fee. Defendant admitted the violation and does
not take issue with the revocation itself. Rather, defendant
argues that the trial court erred in imposing the fee in the
judgment, as 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, 

, 

 (2018) (trial court
erred in imposing $25 probation-violation fee not announced
in open court). We agree and accept the state’s concession.
         Defendant suggests that the proper remedy is to
simply reverse the portion of the judgment imposing the fee.
The state argues that the proper remedy is to remand for
resentencing. As our more recent case law explains, the correct remedy here is to vacate the fee and remand for resentencing. See State v. Vierria, 

, 

 (2020) (appropriate remedy for imposition of probation-violation fee not announced in open court is to remand for
resentencing, giving 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.