State v. Glickert

                                   608

  Submitted April 6; portion of judgment requiring defendant to pay a $255
   intoxicant conviction fee vacated, remanded for resentencing, otherwise
                            affirmed May 19, 2021.


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              CHARLOTTE RANAE GLICKERT,
                    Defendant-Appellant.
                Lincoln County Circuit Court
                    18CR09346; A171827
                                

  Amanda R. Benjamin, Judge pro tempore.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, 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 a $255
intoxicant conviction fee vacated; remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                                              609

           PER CURIAM
         Defendant was convicted of one count of possession
of methamphetamine, ORS 475.894, and one count of driving under the influence of intoxicants (DUII), ORS 813.010.1
Defendant appeals, raising three assignments of error. We
reject her first and second assignments without discussion
and write to address only her third assignment of error, in
which she asserts that the trial court erred in imposing
a $255 “intoxicant conviction fee” in the judgment of conviction when it had not orally imposed that monetary obligation in her presence. Defendant contends, and the state
acknowledges, that defendant was not required to preserve
that claim of error under the circumstances here. State v.
Lewis, 

, 

, rev den, 

 (2010) (preservation not required where error raised
on appeal appeared for the first time in the judgment). The
state concedes that the trial court erred by imposing the
$255 fee for the first time in the judgment. We agree with
and accept the state’s concession. See State v. Tison, 

, 

, rev den, 

 (2018) (trial
court erred in sentencing the defendant for DUII convictions
“when it included in the judgments of conviction a monetary
penalty that exceeded by $255 the fines announced at the
sentencing hearing”).
         The parties disagree as to the proper remedy. Defendant asserts that we should reverse and remand for entry of a
corrected judgment imposing a $1,000 fine for the DUII conviction. The state asserts, on the other hand, that we should
remand for resentencing. In the state’s view, the additional
$255 imposed by the trial court is likely the $255 fee specified by ORS 813.020(1) and ORS 813.030, and because the
record is unclear as to whether the court intended to waive
that fee and mistakenly included it2 or whether it intended
to impose it, a remand for resentencing is appropriate.
Based on the record here, we agree with the state. See Tison,

 (remanding for resentencing when record
    1
      Defendant was acquitted by the jury of one count of delivery of methamphetamine.
    2
      ORS 813.030 provides, in part, that “[t]he fee required by ORS 471.432 and
813.020(1) shall be in the amount of $255, except that the court may waive all or
part of the fee in cases involving indigent defendants.”
610                                       State v. Glickert

was unclear whether trial court intended to impose or waive
$255 fee required by ORS 813.020(1) and ORS 813.030).
        Portion of judgment requiring defendant to pay a
$255 intoxicant conviction fee vacated; remanded for resentencing; otherwise affirmed.