State v. San Antonio

PER CURIAM 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 P2d 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 P2d 376 (1987). Probation condition requiring payment of attorney fees vacated; remanded for resentencing; otherwise affirmed.