STATE v. JACKSON (2021)

In these consolidated cases, one of which involves revocation of defendant's probation, defendant contends that the court erred in imposing a $25 probation-violation fee. In Case No. 18CR68779, defendant was on probation for felon in possession of a firearm, ORS 166.270.¹ After finding defendant in violation, the trial court revoked probation, imposed a sentence of 30 months' imprisonment, and imposed a $25 probation-violation fee. On appeal, defendant challenges the imposition of the fee because it was not announced in open court at sentencing. See generally State v. Hillman, 293 Or. App. 231, 233, 426 P.3d 249 (2018) (court erred in imposing probation-violation fee not announced in open court).

The state concedes the error. We agree and accept the state's concession. See, e.g., State v. Rion, 311 Or. App. 222, 486 P.3d 68 (2021) (accepting similar concession). Defendant makes several arguments that the proper remedy in this case is to simply reverse the fee without remanding for resentencing; we reject those arguments without discussion. The proper remedy in this circumstance is to vacate the fee and remand for resentencing. See State v. Vierria, 307 Or. App. 46, 48, 476 P.3d 506 (2020) (noting that remedy in this circumstance is to remand for resentencing to give the defendant the opportunity to argue for suspension of the fee or to make arguments concerning payment arrangements).

In Case No. 19CR79427, affirmed. In Case No. 18CR68779, portion of judgment requiring defendant to pay probation-violation fee vacated; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   Defendant makes no assignment of error concerning the other consolidated case, Case No. 19CR79427.

PER CURIAM