STATE v. SMITH (2021)

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010(4), challenging, in his combined first three assignments of error, the court's termination of diversion and entry of judgment pursuant to his guilty plea. Those assignments of error, however, are not reviewable under ORS 138.105(5); defendant's arguments to the contrary are foreclosed by our recent decisions in State v. Merrill, 311 Or. App. 487, 492 P.3d 722 (2021), and State v. Redick, 312 Or. App. 260, 491 P.3d 87 (2021).

In his fourth assignment of error, defendant contends that the trial court erred by imposing a $255 DUII conviction fee in the judgment that was not announced in his presence at sentencing. As in Merrill, “[t]hat claim of error does not challenge defendant's conviction and is reviewable under ORS 138.105(7), which allows review of sentencing decisions for compliance with the law.” 311 Or. App. at 496, 492 P.3d 722. The state concedes the error, and we accept that concession. See id. at 496-97, 492 P.3d 722 (vacating $490 “state obligation” and remanding for resentencing where court erred in imposing it outside the defendant's presence).

Portion of judgment requiring defendant to pay $255 DUII conviction fee vacated; remanded for resentencing; otherwise affirmed.

PER CURIAM