Argued and Submitted, April 25, 2014
On Respondent's Motion to Dismiss Filed, April 9,
Petitioner's Response Filed, April 11, 2014
Washington County Circuit Court, D091262T, Kirsten E. Thompson, Judge.
Respondent's motion to dismiss, granted; appeal dismissed.
Elizabeth Daily, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Patrick M. Ebbett, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 814] EGAN, J.
Defendant appeals from a judgment of conviction for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010. He assigns error to the trial court's imposition of a " DUII conviction fee." Defendant argues that, because the fee that the court imposed was greater than that authorized by statute when defendant committed the crime, the fee violated the ex post facto clauses of the Oregon and United States constitutions. The plaintiff moves to dismiss the appeal on the ground that we lack jurisdiction over defendant's claim under ORS 138.050. We agree and, therefore, dismiss defendant's appeal without reaching its merits.
The facts are procedural. In 2009, a jury convicted defendant of DUII. Defendant appealed that conviction, and we reversed and remanded his case to the trial court. State v. Taylor, 247 Or.App. 339, 268 P.3d 795 (2011). On remand, defendant pleaded guilty, and on June 22, 2012, the court entered a judgment of conviction. Because defendant had already completed the requirements of his original sentence, the trial court imposed a sentence of discharge. But, before releasing defendant of any further obligations upon conviction, the court noted a change in the law. The court observed that, since defendant's original conviction, the legislature had increased the " DUII conviction fee" set by ORS 813.030 from $130 to $255. The court also observed that the amended statute required courts to impose the increased fee regardless of when the offense occurred, so long as the court convicted the defendant after the effective date, which had already passed. Defendant argued that the court must impose a fee of $130, the amount required in 2009 when defendant committed the crime and was originally convicted, to avoid violating the ex post facto clauses of the Oregon and United States constitutions. The trial court disagreed with defendant and imposed the higher fee.
On appeal, defendant renews his argument. As noted, the state responds that we must dismiss this case [266 Or.App. 815] because we lack jurisdiction under ORS 138.050(1). We agree with the state and, accordingly, dismiss this appeal.
We begin by noting a fundamental principle of appellate jurisdiction: " A party does not have an inherent right to appellate court review; the right to appeal is wholly statutory and an appellant must establish that the decision from which the appeal is taken is appealable under some statutory provision." Waybrant v. Bernstein, 294 Or. 650, 653, 661 P.2d 931 (1983). Apropos of defendant's claim here, we recently observed that, " [w]hen the appeal is from a judgment based on a plea to a misdemeanor, jurisdiction lies, if at all, under ORS 138.050(1) and the scope of ...