Background
Johnny Ellery Smith appealed his judgment of conviction for driving under the influence of intoxicants. He argued that the trial court plainly erred by imposing 160 hours of community service without his express consent.
Smith also challenged per diem fees that appeared for the first time in the written judgment. The state conceded that the trial court erred because it had not announced those fees at sentencing and agreed that the error required resentencing.
The Court’s Holding
The Oregon Court of Appeals accepted the state’s concession. Relying on State v. Barr, the court held that imposing per diem fees in the judgment without announcing them at sentencing was error and remanded the case for resentencing.
The court did not decide whether imposing the community-service requirement without Smith’s express consent was erroneous. Because resentencing was already required, the trial court could address Smith’s community-service arguments on remand if it reimposed that requirement. The court otherwise affirmed the judgment.
Key Takeaways
- A trial court errs by imposing per diem fees in a written judgment when those fees were not announced at sentencing.
- The unannounced per diem fees required resentencing in this case.
- The Court of Appeals left the community-service issue for the trial court to address on remand if that requirement is reimposed.
Why It Matters
The decision reinforces the requirement that per diem fees included in a criminal judgment be announced at sentencing. When such fees first appear in the written judgment, resentencing may be required.
The opinion also illustrates that an appellate court may decline to resolve another sentencing challenge when a remand already gives the trial court an opportunity to address it. This memorandum opinion is nonprecedential under ORAP 10.30 and may be cited only as that rule permits.