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State v. Frier

Court of Appeals of Oregon

August 6, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
REGINA MARIE FRIER, Defendant-Appellant

Argued and Submitted June 24, 2014

Linn County Circuit Court. 12020282. James C. Egan, Judge.

Elizabeth Gillingham Daily, Deputy Public Defender, argued the cause for appellant.

With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Tookey, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.[*]

OPINION

Page 1094

[264 Or.App. 543] HADLOCK, J.

Defendant appeals a judgment reflecting her conviction of four misdemeanors: driving under the influence of intoxicants (DUII) in violation of ORS 813.010, driving while suspended, and two counts of failure to appear.[1] In her second and third assignments of error, defendant argues that the trial court erred by empanelling a six-person jury and by accepting that jury's verdict. Those arguments fail under State v. Sagdal, 258 Or.App. 890, 311 P.3d 941 (2013), rev allowed, 354 Or. 814, 325 P.3d 33 (2014), and we reject them without further discussion. In her first assignment of error, defendant challenges the trial court's imposition of a $2,000 fine on the DUII conviction. For the reasons that follow, we vacate the $2,000 fine and remand for resentencing, and we otherwise affirm.

The facts in this case are undisputed. After a jury convicted defendant of DUII and other charges, the trial court imposed a sentence that included 60 months of probation on the DUII conviction. Under ORS 137.540(2)(a), the court had the authority to order, as a special condition of probation, that defendant " be confined to the county jail" for up to one year or one-half the maximum period of confinement that could be imposed for DUII, whichever was less. The state asked the court to order defendant to serve five months in jail, and the court did so.

The trial court also imposed a fine on defendant in association with the DUII conviction. Two statutes controlled the court's decision about the amount of that fine. As is generally true for Class A misdemeanors, the court had discretion to order defendant to pay a fine of up to $6,250 under ORS 161.635(1)(a).[2] See State v. Cloutier, 351 Or. 68, 70, 261 P.3d 1234 (2011) (" The maximum fine for a Class A misdemeanor, including misdemeanor DUII, is $6,250." ). [264 Or.App. 544] However, because defendant had been convicted of DUII, the trial court was required to impose at least a mandatory minimum fine under the schedule set out in ORS 813.010(6):

" (6) In addition to any other sentence that may be imposed, the court shall impose one or more of the following fines on a person convicted of [DUII] as follows:
" (a) For a person's first conviction, a minimum of $1,000.
" (b) For a person's second conviction, a minimum ...

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