Submitted May 30, 2019
County Circuit Court 16CR47184 Charles M. Zennaché,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Laura E. Coffn, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Peenesh Shah, Assistant Attorney General, fled
the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Or.App. 543] PER CURIAM
was convicted of driving under the influence of intoxicants
(DUII), ORS 813.010. On appeal, she challenges her sentence.
In her first assignment of error, defendant, who holds a
medical marijuana registry card, asserts that the trial court
erred in imposing a special condition of probation that she
"shall be allowed to use medical marijuana only if
prescribed by a doctor." Defendant argues that
imposition of that condition was improper under ORS
137.542(2) and State v. Bowden, 292 Or.App.
815, 425 P.3d 475 (2018), in which we held that
"the legislature has provided an exception to the
general probation condition that a probationer may not
'use or possess controlled substances' if the
probationer has a medical prescription, ORS 137.540(1)(b),
and that exception applies to those persons who have a
marijuana medical registry card, ORS 137.542. The sentencing
court does not have the discretion to impose a probation
condition that runs counter to ORS 137.540(1)(b) and ORS
Id. at 818-19. The state concedes that the trial
court violated ORS 137.542(2) by imposing the special
condition at issue here. We agree that, because defendant
holds a medical marijuana registry card, the trial court
erred by imposing the condition prohibiting the use of
medical marijuana without a prescription and accept the
to the appropriate disposition. Defendant asks us to remand
for resentencing with a direction to the trial court to
delete the special condition of probation from the judgment.
The state concedes that we should remand for the trial court
to resentence defendant in a way that conforms with the law,
but argues that "the trial court should be afforded an
opportunity to impose whatever lawful sentence is necessary
to resolving its concerns that defendant's marijuana use
puts her at risk of re-offending." We agree with the
state. See Bowden, 292 Or.App. at 819 (remanding
[298 Or.App. 544] for resentencing "with instructions to
conform defendant's conditions of probation with ORS
137.540(1)(b) and ORS 137.542"); State v.
Hurita, 276 Or.App. 58, 61, 366 P.3d 754 (2016)
(remanding for resentencing when probation condition was
overbroad); see also State v. Moreno-Hernandez, 365
Or. 175, 191, 442 P.3d 1092 (2019) (remanding for further
proceedings when "there may be other permissible options
that the trial court could adopt on resentencing" rather
than only reversing portion of judgment erroneously requiring
the defendant to pay compensatory fines).
second assignment, defendant seeks plain-error review of the
trial court's imposition of a $2, 000 fine. She asserts
that the trial court erred because the imposition of any fine
was discretionary, but that "the trial court mistakenly
believed that the $2, 000 fine was mandatory, stating that it
believed the fine to be 'statutory, '" and
imposed it because it believed it was required to. In light
of our disposition on the first assignment, we need not reach
the second assignment of error; the trial court will have the
opportunity to consider the issue on remand.
for resentencing; otherwise affirmed.