This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted October 21; portion of judgment requiring defendant to pay $200 fine reversed, otherwise affirmed November 9, 2022

STATE OF OREGON, Plaintiff-Respondent, v. MANUEL RAMIREZ, JR., Defendant-Appellant.

Umatilla County Circuit Court CF100177; A175981

Daniel J. Hill, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Hellman, Judge, and Landau, Senior Judge.

ORTEGA, P. J.

Portion of judgment requiring defendant to pay $200 fine reversed; otherwise affirmed.

596 State v. Ramirez ORTEGA, P. J.

Defendant, who was convicted of attempt to elude, ORS 811.540, appeals the judgment of conviction, arguing that the trial court erroneously imposed a $200 fine and $200 in court-appointed attorney fees. The state concedes that imposition of the fine was plain error. We reject defendant’s argument concerning attorney fees but accept the state’s concession that the imposition of the fine was erroneous.

A court may not order a defendant to pay attorney fees unless the defendant “is or may be able to pay” them.

ORS 151.505(3); ORS 161.665(4). Having reviewed the record, we conclude that the trial court considered whether defendant would be able to pay the attorney fees, and the record supports its determination that defendant may be able to pay them.

With respect to the fine, we agree with the parties that the trial court erred in imposing it. The court imposed a sentence of discharge. Under ORS 137.010(7), the court may impose either a fine or a sentence of discharge, not both.

ORS 137.010(7)(b), (d).

Portion of judgment requiring defendant to pay $200 fine reversed; otherwise affirmed.