State v. Ramirez

                                    595

    This is a nonprecedential memorandum opinion
     pursuant to ORAP 10.30 and may not be cited
          except as provided in ORAP 10.30(1).
Submitted October 21; portion of judgment requiring defendant to pay $200 fine
              reversed, otherwise affirmed November 9, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   MANUEL RAMIREZ, JR.,
                     Defendant-Appellant.
                  Umatilla County Circuit Court
                       CF100177; A175981


   Daniel J. Hill, 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 Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
   ORTEGA, P. J.
   Portion of judgment requiring defendant to pay $200 fine
reversed; otherwise affirmed.
596                                         State v. Ramirez

        ORTEGA, P. J.
         Defendant, who was convicted of attempt to elude,
ORS 811.540, appeals the judgment of conviction, arguing
that the trial court erroneously imposed a $200 fine and $200
in court-appointed attorney fees. The state concedes that
imposition of the fine was plain error. We reject defendant’s
argument concerning attorney fees but accept the state’s
concession that the imposition of the fine was erroneous.
         A court may not order a defendant to pay attorney
fees unless the defendant “is or may be able to pay” them.
ORS 151.505(3); ORS 161.665(4). Having reviewed the
record, we conclude that the trial court considered whether
defendant would be able to pay the attorney fees, and the
record supports its determination that defendant may be
able to pay them.
         With respect to the fine, we agree with the parties
that the trial court erred in imposing it. The court imposed a
sentence of discharge. Under ORS 137.010(7), the court may
impose either a fine or a sentence of discharge, not both.
ORS 137.010(7)(b), (d).
        Portion of judgment requiring defendant to pay
$200 fine reversed; otherwise affirmed.