Submitted October 5, 2018
Lincoln County Circuit Court 17CR04963; Sheryl Bachart,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Meredith Allen, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jordan R. Silk, Assistant Attorney General, fled
the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: On appeal, defendant challenges a term of the trial
court's final judgment that directed that the clerk of
the court shall schedule the payment of fines pursuant to ORS
161.675. Relying on the statute, defendant argues that,
because the trial court imposed a sentence of incarceration
and did not expressly find that defendant had the assets to
pay restitution, the final judgment wording was unlawful.
Held: Absent a showing that the clerk of the court
was acting in a manner that did not conform to ORS 161.675,
there was no error to correct on appeal. Moreover, to the
extent that prior decisions have treated wording in the
judgment alone-without a record that the clerk was, in fact,
seeking to enforce a monetary obligation in contravention of
ORS 161.675-as being reversible error, the Court of Appeals
disavowed that reasoning.
Or.App. 117] JAMES, J.
criminal appeal, defendant challenges a term in a judgment
stating that "[p]ayment of the fines, fees, assessments,
and/or attorney's fees noted in this and any subsequent
Money Award shall be scheduled by the clerk of the court
pursuant to ORS 161.675." According to defendant,
because she was sentenced to a term of incarceration, that
term in the judgment is unlawful. We do not read the judgment
as imposing an unlawful monetary obligation while defendant
is incarcerated, nor authorizing the imposition of a payment
schedule upon her release and accordingly affirm.
facts underlying defendant's conviction are not relevant
for our analysis on appeal, and the procedural facts are
uncontested by the parties. Defendant pleaded guilty to one
count of identity theft and the trial court dismissed the
remaining count pursuant to negotiations. The trial court
sentenced defendant to a departure sentence of 40 months of
incarceration, pursuant to ORS 137.717, and imposed one year
of post-prison supervision and $522 in restitution.
the final judgment issued it contained wording that
"[p]ayment of the fines, fees, assessments, and/ or
attorney's fees noted in this and any subsequent Money
Award shall be scheduled by the clerk of the court pursuant
to ORS 161.675." Defendant did not object to those terms
appearing in the judgment because the matter did not arise
during the sentencing hearing. The wording appears to have
been added by the court, as a matter of routine, in the
creation of the final judgment. Despite the lack of
objection, the state does not dispute preservation, nor do we
find the lack of objection an impediment to our review.
See McCarthy v. Oregon Freeze Dry, Inc., 327 Or. 84,
95 n 6, 957 P.2d 1200 (1998) (noting that a party is not
required to take action to preserve an issue that first
arises when the appeals court issues its written order);
see also State v. Martinez, 282 Or.App. 917, 918 n
2, 388 P.3d 433 (2016) (noting that the defendant was excused
from rule of preservation when improper sentencing term that
the clerk should schedule defendant's payments was not
announced in open court before appearing in the judgment);
State v. Lewis, 236 Or.App. 49, 52, 234 [295 Or.App.
118] P.3d 152, rev den, 349 Or. 172 (2010) (same);
State v. DeCamp, 158 Or.App. 238, 241, 973 P.2d 922
(1999) ("A party cannot be required to raise an
objection contemporaneously with a trial court's ruling
or other action when the party was not on notice of the trial
court's intended action and had no opportunity to be
present when the trial court acted.").
161.675 provides, in pertinent part:
"(1) When a defendant, as a part of a sentence or as
condition of probation or suspension of sentence, is required
to pay a sum of money for any purpose, the court may order
payment to be made immediately or within a specified period
of time or in specified installments. If a defendant is
sentenced to a term of imprisonment, any part of the sentence
that requires the payment of a sum of money for any purpose
is enforceable during the period of imprisonment if the court
expressly finds that the defendant has assets to pay all or
part of the amounts ordered.
"(3) When a defendant is sentenced to probation or
imposition or execution of sentence is suspended and the
court requires as a part of the sentence or as a condition of
the probation or suspension of sentence that the defendant
pay a sum of money in installments, the court, or the court
clerk or parole and probation officer if so ordered by the
court, shall establish a schedule of payments to satisfy the
obligation. A schedule of payments shall be reviewed ...