State v. Breeding

                                   680

   This is a nonprecedential memorandum opinion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 April 24, reversed and remanded for entry of judgment omitting the
    “[i]mmediately due” requirement, otherwise affirmed June 28, 2023


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   CORY AARON BREEDING,
                      Defendant-Appellant.
                   Baker County Circuit Court
                      20CR51719; A178072


   Matthew B. Shirtcliff, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie Hortsch, 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 Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Reversed and remanded for entry of judgment omitting
the “[i]mmediately due” requirement; otherwise affirmed.
Nonprecedential Memo Op: 

 (2023)           681

        POWERS, J.
         In this criminal appeal, defendant admitted violating his probation, and the trial court revoked probation and
imposed, among other parts of the sentence, a $500 fine that
was “[i]mmediately due” along with a term of incarceration.
On appeal, defendant’s challenge is narrowly focused on one
aspect of the fine. That is, he does not take issue with the
imposition of the fine, which had been previously imposed
but was suspended; rather, defendant argues that the trial
court erred by ordering that the fine was “[i]mmediately
due” without first finding that defendant had the ability to
pay. See ORS 161.675(1) (providing that, “[i]f a defendant is
sentenced to a term of imprisonment, any part of the sentence that requires the payment of a sum of money for any
purpose is enforceable during the period of imprisonment if
the court expressly finds that the defendant has assets to
pay all or part of the amounts ordered”). The state concedes
that the trial court erred, and we accept that concession.
Accordingly, we reverse and remand with instructions to
omit the requirement that the fine be “[i]mmediately due.”
See State v. Hackett, 

, 

(2021), rev den, 

 (2022) (reversing and remanding
with instructions).
        Reversed and remanded for entry of judgment
omitting the “[i]mmediately due” requirement; otherwise
affirmed.