Argued and Submitted August 19, 2014
Linn County Circuit Court. 10060954. James C. Egan, Judge.
Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 823] TOOKEY, J.
In this criminal case, defendant pleaded no contest to driving under the influence of intoxicants (DUII), a Class A misdemeanor, and entered into a diversion agreement. ORS 813.010(4); ORS 813.200; ORS 813.210; ORS 813.230. Because defendant could not afford to pay for the treatment required in diversion, the trial court eventually terminated the diversion agreement and entered the plea of no contest. ORS 813.255. The resulting judgment imposed fines and fees totaling $2,453. Defendant appeals, arguing that, in light of his indigency, the court had discretion to waive the fines and fees and that it failed to exercise that discretion; he asks us to reverse and remand for the trial court to exercise its discretion under a proper understanding of the law. Although the state concedes that the trial court misunderstood the law with respect to two of the fees--that is, it had discretion to waive those fees but did not exercise it--the state nonetheless contends that we lack jurisdiction over this appeal and, therefore, must dismiss it. We agree that we lack jurisdiction; accordingly, we dismiss the appeal.
[268 Or.App. 824] The parties agree that ORS 138.050(1) controls the appealability of a judgment, like the one at issue, convicting a defendant who pleaded guilty or no contest to a misdemeanor and imposing sentence. ORS 138.050(1) provides:
" Except as otherwise provided in ORS 135.335, [(regarding conditional guilty pleas,)] a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition:
" (a) Exceeds the maximum allowable by law; or
" (b) Is unconstitutionally cruel and unusual."
Under that provision, after a plea of guilty or no contest, a defendant may not challenge the conviction, whether it is for a misdemeanor or a felony. State v. Clements, 265 Or.App. 9, 21, 333 P.3d 1177 (2014) (ORS 138.050(1) prohibits " a defendant's challenge to a conviction--as opposed to a sentence--when the defendant has pleaded guilty" ). When a defendant who has pleaded to a misdemeanor appeals based on " something other than [a] challenge[ ] to a conviction," we have jurisdiction only if the defendant has made a colorable showing that the disposition " [e]xceeds the maximum allowable by law" or " [i]s unconstitutionally cruel and unusual." State v. Davis, 265 Or.App. 425, 432, 335 P.3d 322 (2014) ...