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• Court: Oregon Court of Appeals
• Area(s) of Law: Attorney Fees
• Date Filed: 08-08-2012
• Case #: A148382
• Judge(s)/Court Below: Duncan, J. for the Court; Armstrong, P.J.; and Brewer, J.

Under ORS 151.505 and 161.665, a court cannot impose attorney fees unless there is a factual basis for determining that a defendant is actually able to pay the fees.

Defendant contested a judgment requiring payment of $400 in attorney fees. Defendant was sentenced for two counts of failure to appear. Defendant requested that the trial court appoint an attorney. Defendant’s attorney requested that the court not require payment of attorney fees because Defendant was unable to pay. The court did not speak to Defendant’s ability to pay when assigning $400 in attorney fees. Defendant argued that the record did not support that he “is or may be able to pay” the fees based on ORS 151.505 and ORS 161.665. The Court of Appeals found that whether a defendant is able to pay fees depends on the defendant’s financial circumstances. The record said nothing about Defendant’s financial circumstances from which the Court could find that Defendant “is or may be able” to pay the fees. Attorney fee award reversed; otherwise affirmed.

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