STATE v. PEREZ (2022)

In this criminal appeal, defendant argues that, under governing case law, the trial court plainly erred in imposing a compensatory fine, payable to M, the child victim. See, e.g., State v. Moreno-Hernandez, 365 Or. 175, 181-82, 189, 442 P.3d 1092 (2019) (concluding that under ORS 137.101(1), the court may only impose a compensatory fine payable to “victim” that has suffered “economic damages” as defined in ORS 31.710); State v. Avalos, 308 Or. App. 362, 363, 480 P.3d 334 (2020) (concluding that the children were not “victims” for compensatory fine purposes because they did not personally suffer economic damages). The state concedes that the court plainly erred but argues that we should not exercise our discretion to correct the error, because if defendant had objected the court could have easily avoided the error by making the fine payable to M's parents.

As we did in Avalos, we accept the state's concession. We reject, however, the state's argument that we should not exercise our discretion to correct the plain error. It is not obvious to us that the state is correct that the trial court easily could have corrected the error and our practice in comparable cases, guided by the Supreme Court's approach in Moreno-Hernandez, has been to “remand for resentencing to allow the trial court to determine if it has ‘other permissible options available to it’ regarding the imposition of restitution or a fine.” Avalos, 308 Or. App. at 364, 480 P.3d 334 (quoting State v. White, 299 Or. App. 165, 169, 449 P.3d 924 (2019)).

Remanded for resentencing; otherwise affirmed.

PER CURIAM