State v. Geddeda

ORS 161.665(4) provides, in part, that “[t]he court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”

Defendant appealed a conviction of fourth-degree assault and harassment. Defendant requested a reversal of the trial court’s imposition of attorney’s fees on the ground that there is insufficient evidence that he “is or may be able to pay.” Defendant argued that he preserved the argument because his trial counsel clarified that the employment referred to was only a job which he had only applied to. The state argued that the defendant’s clarification was not an objection to the attorney’s fees. ORS 161.665(4) provides, in part, that “[t]he court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.” The Court ruled that at the time of sentencing, the defendant was unemployed and there was nothing in the record indicating that he had any legitimate employment lined up he had only applied to a job. Additionally, there was no evidence to suggest that the job the defendant had applied to was a promising or likely opportunity. Portion of judgement requiring defendant to pay attorney fees reversed; otherwise affirmed.