State v. Schay-Vivero

“We remanded for resentencing because … the trial court ‘did not address per diem fees at the sentencing hearing’. In doing so in Barr, we rejected arguments by the state that any error in the imposition of per diem fees was harmless or moot.” State v. Barr, 331 Or App 242, 244 (2024).

Defendant appeals a judgement of conviction for harassment under ORS 166.065. Defendant assigns error to the trial court, arguing that resentencing is required because the trial court did not announce the mandated per diem fees Defendant was to pay at his sentencing hearing. The state responds that this error was moot and harmless. “During the pendency of this appeal, we decided State v. Barr, 331 Or App 242 (2024), which is controlling and requires we remand for resentencing in this case”. The Court reasoned that because the trial court did not address per diem fees at Defendant’s sentencing, as was the case in Barr, the court must remand the case for resentencing. The Court further reasoned that in Barr they rejected the state’s argument that the error was moot and harmless, so they must here as well. Therefore, the case is remanded for resentencing and otherwise affirmed.