Argued and Submitted July 9, 2014.
130532107. Multnomah County Circuit Court. Judith H. Matarazzo, Judge.
Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for appellant. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
No appearance for respondent.
Peter Gartlan, Chief Defender, and Emily P. Seltzer, Deputy Public Defender, filed the brief for amicus curiae Office of Public Defense Services.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[268 Or.App. 363] DE MUNIZ, S. J.
In this criminal case, defendant was convicted of driving under the influence of intoxicants (DUII) for a third time within a 10-year period, making defendant's conviction a class C felony. ORS 813.011(1). Following defendant's guilty plea, the court placed defendant on three months' probation, and imposed a 90-day jail sentence, but then suspended execution of that sentence. The state filed a timely appeal, arguing that the trial court was not authorized to suspend execution of the mandatory minimum 90-day jail sentence prescribed bye ORS 813.011(3). See ORS 138.060(1)(e) (the state may appeal " [a] judgment of conviction based on the sentence as provided in ORS 138.222" ). We conclude that ORS 813.011(3) does not permit the court to suspend execution of the mandatory minimum 90-day jail sentence, and we remand for resentencing.
We review the trial court's interpretation of a statute for legal error. State v. Olive, 259 Or.App. 104, 107, 312 P.3d 588 (2013). We begin with ORS 813.011, which provides:
" (1) Driving under the influence of intoxicants under ORS 813.010 shall be a Class C felony if the defendant has been convicted of driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense.
" (2) Once a person has been sentenced for a Class C felony under this section, the 10-year time limitation is [268 Or.App. 364] eliminated and any subsequent episode of driving under the influence of intoxicants shall be a Class C felony regard less of the amount of time which intervenes.
" (3) Upon conviction for a Class C felony under this section, the person shall be sentenced to a mandatory minimum term of incarceration of 90 days, without reduction for any reason."
Whether the statute mandates imposition of the 90-day minimum term of incarceration is a question of statutory construction. To determine the intended meaning of the statute, we analyze it in accordance with the interpretive methodology set forth in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 ...