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State v. Johnson

Court of Appeals of Oregon

March 4, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
GLORIA SUE JOHNSON, Defendant-Appellant

Argued and submitted October 29, 2014

Josephine County Circuit Court. 110651M. Pat Wolke, Judge.

Appeal dismissed.

Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. With her 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.

OPINION

Page 491

[269 Or.App. 499] NAKAMOTO, J.

Defendant challenges the sentence imposed following her guilty plea and conviction for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010(4). She asks that we vacate her sentence and remand for resentencing. The state counters that we lack jurisdiction to hear defendant's appeal. For the reasons explained below, we agree with the state. We therefore dismiss defendant's appeal without reaching the merits of her argument as to the propriety of her sentence.

The relevant facts are procedural and are not in dispute. Defendant pleaded guilty to DUII and entered a diversion agreement under which she was required, among other things, to complete an alcohol evaluation and treatment program and to pay certain fees and fines in exchange for dismissal of her DUII charge. Defendant successfully completed nearly all of the requirements of the diversion agreement but paid a portion of her fees late, which resulted in her default under the agreement.

On the state's motion, the trial court held a hearing for defendant to show cause why the court should not terminate the diversion agreement. The state requested revocation of the diversion. Defendant objected to revocation and asked the court to grant her leniency because she had successfully completed the diversion agreement but for the single tardy payment and because she was indigent.

The court terminated the diversion agreement and entered a conviction based on defendant's earlier guilty plea. The court sentenced defendant to 24 months of bench probation with general and specific conditions, including an alcohol evaluation and, if recommended, participation in a treatment program. The court also imposed a $66 county assessment fee, a $130 state obligation, and a $1,000 DUII fine. The court found that defendant was indigent and therefore waived payment of court-appointed attorney fees. The trial court stated that it would have liked to waive the evaluation and the other payments but concluded that it lacked the discretionary authority to do so.

[269 Or.App. 500] Defendant appeals, asserting that we have jurisdiction pursuant to ORS 138.050. On the merits, defendant argues that her sentence was unlawful because the trial court erroneously concluded that it lacked the discretion to ...


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