State v. Tison

When the trial court’s judgment exceeds the amount allowable by law, the Court is to direct the trial court to impose the proper disposition under law. ORS 138.040.

Defendant appealed her Class A, driving under the influence of intoxicants (DUII) and amended reckless driving and DUII convictions.  Defendant assigned error to the fines imposed on her from the convictions. Defendant argued that the fines were impermissible because they exceeded the $1,500 for each DUII and that the Court should “’reverse and remand for entry of corrected judgments that impose a $1,500 fine for each of the DUII charges.’” The state, after conceding, argued for the Court to “’reverse and remand for further proceedings.’” When the trial court’s judgment exceeds the amount allowable by law, the Court is to direct the trial court to impose the proper disposition under the law. ORS 138.040. Under ORS 813.020(1), the trial court can impose a $255 fee to convicted DUII defendants who were not indigent. The Court held that, because Defendant acknowledges that the difference of $255 on her disposition was imposed because of ORS 813.020(1), reversing and remanding for entry of corrected judgment would frustrate the purpose of ORS 813.020(1). The Court held that the intention of the trial court to impose the $255 fee is unclear and whether or not it was intended to be waived is also unclear. Remanded for resentencing.