Opinion
No. 168
03-27-2013
STATE OF OREGON, Plaintiff-Respondent, v. CHARLES EVANS NAYLOR, Defendant-Appellant.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
Marion County Circuit Court
10C40413; A149293
Albin W. Norblad, Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
PER CURIAM
Attorney fee assessment reversed; otherwise affirmed.
PER CURIAM
Defendant was convicted of second-degree theft. ORS 164.045. On appeal, he asserts that the trial court erred in denying his motion for judgment of acquittal and in imposing $87.33 of restitution, a $67 unitary assessment, a $35 surcharge, and $390 in attorney fees. We reject without published discussion all of defendant's contentions except for his argument that the trial court erred in imposing attorney fees. With respect to that assertion, the state concedes that "the trial court erred by imposing $390 in attorney's fees in the judgment when the record does not support defendant's ability to pay those fees." We agree and accept the state's concession. See State v. Pendergrapht , 251 Or App 630, 284 P3d 573 (2012) (holding that it is error to impose attorney fees where the record does not support the defendant's ability to pay those fees).
Attorney fee assessment reversed; otherwise affirmed.