State v. Smith

304                    June 11, 2025                No. 540

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                REBECCA LEE SMITH,
                  Defendant-Appellant.
             Deschutes County Circuit Court
                  21CR07957; A183386

  Walter Randolph Miller, Jr., Judge.
  Submitted May 13, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joel C. Duran, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
  PER CURIAM
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)          305

        PER CURIAM
         Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII), ORS
813.010, and reckless driving, ORS 811.140. She initially
pleaded guilty to reckless driving, which was reduced to a
violation, and pleaded no contest to DUII and entered diversion. The trial court ultimately revoked defendant’s DUII
diversion and sentenced her to 18 months of bench probation and two days in jail, and ordered defendant to “pay any
required per diem fees.”
         Defendant contends that the trial court erred when
it included the per diem fees in the judgment without pronouncing that term in her presence at sentencing. The state
concedes the error and we accept the concession. See State
v. Barr, 

, 

, rev den, 

 (2024) (“The trial court erred by including a previously
unannounced term in the sentencing judgment.”).
          Defendant maintains that the appropriate remedy is for us to reverse the per diem fees outright, and that
remand for resentencing is unnecessary because the record
reflects that the trial court did not intend to impose any
additional monetary obligations. However, although the
court expressly suspended other fees and fines at sentencing, it did not address per diem fees one way or another. On
resentencing, the court may clarify its intention regarding
per diem fees.
        Remanded for resentencing; otherwise affirmed.