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Unauthorized Oregon “Offense Surcharges” Reversed

Unauthorized Oregon “Offense Surcharges” Reversed

by Mark Wilson

On June 11, 2014, the Oregon Court of Appeals vacated $140 in “offense surcharges” imposed on crimes committed prior to the date the surcharges were authorized.

An Oregon law (Ore. Laws 2009, ch 659, § 2(3)) allows a sentencing court to impose an offense surcharge upon each conviction of an offense committed between October 1, 2009 and July 1, 2011.

Steven Patrick Simkins was indicted on theft and criminal mistreatment charges which were allegedly committed between December 1, 2008 and May 30, 2009. The evidence at trial established that the crimes were, in fact, committed between those dates.

Simkins was convicted on two counts of theft and two counts of criminal mistreatment; no evidence was introduced that he had committed the offenses on or after October 1, 2009. Nevertheless, the sentencing court ordered him to pay a $35 offense surcharge on each conviction for a total of $140. The court also imposed other fines and fees that totaled approximately $8,500.

Although Simkins did not object when the surcharges were imposed, he argued on appeal they should be reversed as “plain error” that is “apparent on the face of the record.”

“The state, in response, [did] not endeavor to defend the trial court’s ruling – nor [could] it,” the appellate court observed. Although the state conceded that the surcharges had been erroneously imposed, it argued the Court of Appeals should not correct the error.

“The surcharges (totaling $140) are only a small part of approximately $8,500 that defendant was required to pay in fines and fees; the error easily could have been avoided had defendant simply pointed it out to the trial court at the time of sentencing; and, even after sentencing, defendant could have filed a motion in the trial court under ORS 138.083 to delete the erroneous term from the judgment,” the state argued.

The Court of Appeals rejected that argument, finding “those factors are significantly outweighed ... by the prospect of wasting further judicial resources on this patent and easily corrected error.” As such, the appellate court reversed the “imposition of offense surcharges that were not authorized by statute.” The trial court’s judgment was otherwise affirmed. See: State v. Simkins, 263 Ore. App. 459, 330 P.3d 1235 (Or. Ct. App. 2014).


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Related legal case

State v. Simkins