STATE v. NANG KHAN ZAMNO (2019)

Defendant appeals a judgment of conviction for felony driving under the influence of intoxicants (DUII), ORS 813.010 and ORS 813.011, and reckless driving, ORS 811.140. He first contends that the trial court erred in denying his motion to suppress evidence; we reject that assignment of error without discussion. In his second assignment of error, he contends that the court erred in imposing a $2,260 DUII fine in the judgment when, at sentencing, the court orally imposed a DUII fine of $2,000. As the state acknowledges, defendant was not required to preserve his claim of error in these circumstances. State v. Lewis, 236 Or. App. 49, 52, 234 P.3d 152, rev. den., 349 Or. 172, 243 P.3d 70 (2010) (preservation not required where error challenged on appeal appeared for the first time in the judgment). Moreover, the state concedes that the trial court erred in imposing in the judgment a fine that exceeded by $260 the amount announced at the sentencing hearing.

We agree and accept the state’s concession. State v. Tison, 292 Or. App. 369, 374, 424 P.3d 823, rev. den., 363 Or. 744, 430 P.3d 567 (2018) (concluding that trial court erred in similar circumstances because additional monetary amount was imposed outside the presence of defendant); see also State v. Coghill, 298 Or. App. 818, 819, 448 P.3d 1195 (2019) (same). The parties, however, dispute the proper remedy: defendant requests that we simply reverse the portion of the judgment requiring payment of the additional $260; the state, on the other hand, contends that, under Tison, we must vacate the fine and remand for resentencing. Although Tison does not govern our disposition in this case, we nonetheless agree with the state that the case must be remanded for resentencing.

In Tison, after concluding that the trial court committed an analogous sentencing error, we vacated the portions of the judgments imposing the DUII fine and remanded for resentencing. 292 Or. App. at 374-75, 424 P.3d 823; see also Coghill, 298 Or. App. at 819-20 (same). However, in those cases, because the defendants were convicted of misdemeanors, the remedy was controlled by former ORS 138.040 (2015), rather than former ORS 138.222 (2015), which governs felony sentencing (and therefore applies in this case).¹ Tison, 292 Or. App. at 373, 424 P.3d 823; Coghill, 298 Or. App. at 819. Still, we reach essentially the same result under former ORS 138.222(5)(a) (2015), which requires us to “remand the entire case for resentencing” if we determine that the sentencing court “committed an error that requires resentencing.” This is such a case. See, e.g., State v. Loudermilk, 288 Or. App. 88, 90, 405 P.3d 195 (2017) (remanding for resentencing in felony case where trial court committed plain error in imposing $2,000 mandatory minimum DUII fine). Accordingly, we vacate the portion of the judgment imposing the DUII fine, remand for resentencing, and otherwise affirm.

Portion of judgment requiring defendant to pay a $2,260 DUII fine vacated; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   Both ORS 138.040 and ORS 138.222 were repealed in 2017 as part of a comprehensive restructuring of the laws governing criminal appeals. See Senate Bill (SB) 896 (2017); Or. Laws 2017, ch. 529, § 26. Because the judgment in this case was entered before January 1, 2018, the effective date of SB 896, the former statutes apply.

PER CURIAM