State v. Jonas

Court of Appeals of Oregon

State v. Jonas

383 P.3d 975, 281 Or. App. 372, 2016 Ore. App. LEXIS 1148

CourtCourt of Appeals of Oregon

DecidedSeptember 28, 2016

Docket14CR12628; A158747

StatusPublished

This text of 383 P.3d 975 (State v. Jonas) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Jonas, 383 P.3d 975, 281 Or. App. 372, 2016 Ore. App. LEXIS 1148 (Or. Ct. App. 2016).

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Opinion

PER CURIAM

Defendant was convicted of harassment, ORS 166.065, and offensive physical contact, Portland City Code 14A.40.020. The trial court sentenced the defendant to 180 days in jail. It also imposed what were laid out in the judgment as “conditions of probation” — that defendant have no contact with a victim, stay out of all libraries, and refrain from offering to provide people with foot massages. On appeal, defendant raises five assignments of error.

In his first three assignments, defendant challenges those conditions. He contends that, because he was sentenced to a jail term and not probation, the trial court “lacked authority to impose conditions of probation.” The state concedes that the trial court lacked authority to impose the conditions in this case. We agree, and accept the concession. See State v. Blaylock, 267 Or App 455, 475, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (trial court lacked authority to impose a “no contact” order in a judgment sentencing defendant to prison).

In his fourth and fifth assignments of error, defendant argues that the trial court erred in imposing, in the judgment, a $255 conviction fee under ORS 813.020 for driving under the influence of intoxicants (DUII), and a $100 bench probation fee under ORS 137.540 (7) on the harassment conviction. As defendant points out, he was not convicted of DUII nor was he placed on bench probation. Thus, the entry of a judgment that included those fees was erroneous.

As we recently discussed in State v. Williams, 280 Or App 631, 632, 380 P3d 1225 (2016), “the Multnomah County form of judgment, which includes the $255 DUII conviction fee, seems to be a premarked form that consistently appears to include the $255 fee unless that amount is affirmatively stricken from the form.” The same is true of the $100 bench probation fee. The $255 amount is already typed onto the form followed by a blank box which is, in turn, followed by the word “waived.” The bench probation fee amount is followed by a blank box that is, in turn, followed by the word “suspended.” As in Williams, those amounts appear to be included in the judgment and no affirmative steps were [374]*374taken to remove them. In light of Williams, that was error. Id. at 632-33.

Remanded for entry of corrected judgment omitting the challenged “conditions of probation,” and deleting the $255 DUII conviction fee and $100 bench probation fee; otherwise affirmed.

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PER CURIAM

Defendant was convicted of harassment, ORS 166.065, and offensive physical contact, Portland City Code 14A.40.020. The trial court sentenced the defendant to 180 days in jail. It also imposed what were laid out in the judgment as “conditions of probation” — that defendant have no contact with a victim, stay out of all libraries, and refrain from offering to provide people with foot massages. On appeal, defendant raises five assignments of error.

In his first three assignments, defendant challenges those conditions. He contends that, because he was sentenced to a jail term and not probation, the trial court “lacked authority to impose conditions of probation.” The state concedes that the trial court lacked authority to impose the conditions in this case. We agree, and accept the concession. See State v. Blaylock, 267 Or App 455, 475, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (trial court lacked authority to impose a “no contact” order in a judgment sentencing defendant to prison).

In his fourth and fifth assignments of error, defendant argues that the trial court erred in imposing, in the judgment, a $255 conviction fee under ORS 813.020 for driving under the influence of intoxicants (DUII), and a $100 bench probation fee under ORS 137.540 (7) on the harassment conviction. As defendant points out, he was not convicted of DUII nor was he placed on bench probation. Thus, the entry of a judgment that included those fees was erroneous.

As we recently discussed in State v. Williams, 280 Or App 631, 632, 380 P3d 1225 (2016), “the Multnomah County form of judgment, which includes the $255 DUII conviction fee, seems to be a premarked form that consistently appears to include the $255 fee unless that amount is affirmatively stricken from the form.” The same is true of the $100 bench probation fee. The $255 amount is already typed onto the form followed by a blank box which is, in turn, followed by the word “waived.” The bench probation fee amount is followed by a blank box that is, in turn, followed by the word “suspended.” As in Williams, those amounts appear to be included in the judgment and no affirmative steps were [374]*374taken to remove them. In light of Williams, that was error. Id. at 632-33.

Remanded for entry of corrected judgment omitting the challenged “conditions of probation,” and deleting the $255 DUII conviction fee and $100 bench probation fee; otherwise affirmed.

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Bluebook (online)

383 P.3d 975, 281 Or. App. 372, 2016 Ore. App. LEXIS 1148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jonas-orctapp-2016.

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