State v. Wilson

Where a defendant seeks relief under Ailes v. Portland Meadows, Inc., he need not preserve the error in the record when he was not afforded the opportunity to do so.

Defendant appealed his conviction based on stipulated facts of Driving Under the Influence of Intoxicants (DUII) on the grounds that the trial court erred in denying his motion to suppress evidence obtained without probable cause. The relevant procedural facts concerned the trial court’s preprinted judgment form in which the trial judge ordered defendant to pay $230.00 without any further discussion of the matter. Defendant appealed on the ground that ORS 813.020 and ORS 813.030 impose a maximum fine for DUII conviction fee of $130.00. Moreover, defendant argued that the court should exercise its discretion under Ailes v. Portland Meadows, Inc., despite his failure to preserve the error in the record since it was “an error of law apparent on the record.” In contrast, the state argued that the Court need not exercise Ailes discretion because defendant had not exhausted all his remedies at the trial court level, namely to ask the judge to modify his sentence. The Court of Appeals held that defendant did not need to preserve the court’s error since he was not afforded an opportunity to do so. As to the merits of the case, the Court held that the trial court erred in ordering defendant to pay $230.00, contrary to the statute. Reversed in part; otherwise affirmed.