Opinion
P24856; CA A47361
Argued and submitted July 20, 1988
Probation condition requiring payment of attorney fees vacated; remanded for resentencing; otherwise affirmed April 26, 1989
Appeal from the District Court, Clackamas County, Alan R. Jack, Judge.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Teresa Ozias, Certified Law Student, Salem.
Before Richardson, Presiding Judge, and Deits and Riggs, Judges.
PER CURIAM
Probation condition requiring payment of attorney fees vacated; remanded for resentencing; otherwise affirmed.
Defendant challenges a condition of probation requiring that he pay $237.50 in court appointed attorney fees. Defendant pleaded guilty to driving under the influence of intoxicants. The court suspended imposition of sentence and placed him on probation for two years. The court subsequently found that he had violated certain conditions of probation, but it continued probation and added the additional condition that he reimburse the state for court appointed attorney fees.
The state argues that we may not review defendant's claim under ORS 138.050. However, because defendant's probation was continued and no sentence was imposed, we may review challenges to conditions of probation pursuant to ORS 138.040. State v. Donovan, 307 Or. 461, 770 P.2d 581 (1989).
Defendant contends that the court erred by imposing the condition without considering his ability to pay. We agree with the state's concession that the trial court failed to find that defendant had a present or future ability to pay the attorney fees. ORS 161.665 (3); State v. Flynn, 89 Or. App. 47, 49, 747 P.2d 376 (1987).
Probation condition requiring payment of attorney fees vacated; remanded for resentencing; otherwise affirmed.