State v. Villalta

A court cannot impose fees based on pure speculation that a defendant has funds to pay for the fees or may acquire them in the future.” State v. Pendergrapht, 251 Or App 630, 634, 284 P3d 573 (2012). The state has the burden of proving the defendant’s ability to pay. State v. Kanuch, 231 Or App 20, 24, 217 P3d 1082 (2009).

Defendant appealed the trial court’s order directing him to pay attorney fees. Defendant assigned error to the trial court’s determination that he could have paid for his defense. On appeal, Defendant argued that there was no evidence in the record that he had the means to pay the costs of his defense. In response, the State argued that the Defendant’s willingness to try to pay for his defense is evidence enough to support the trial court’s findings. “A court cannot impose fees based on pure speculation that a defendant has funds to pay for the fees or may acquire them in the future.” State v. Pendergrapht, 251 Or App 630, 634, 284 P3d 573 (2012). The state has the burden of proving the defendant’s ability to pay. State v. Kanuch, 231 Or App 20, 24, 217 P3d 1082 (2009). The Court of Appeals held that “the trial court’s inquiry into Defendant’s health and willingness to work supports nothing more than a speculative assessment of Defendant’s present or future capacity to pay.” Reversed.