concurrence">GILLETTE, J.,

concurring.

I join in the opinion of the court. I write separately to emphasize that there can arise at least one other issue with respect to the award of a reasonable fee to appellate counsel beyond the issue addressed by our opinion today.

The only issue actually presented in this criminal case is whether the method selected by the Court of Appeals to explain its refusal to award to court-appointed appellate counsel full payment for the time actually expended by counsel in the preparation and presentation of a criminal appeal comports with the guidelines announced by this court in State v. Longjaw, 307 Or 47, 761 P2d 1331 (1988). In that case, this court summarized the guidelines as follows:

“In sum, (1) the Court of Appeals shall set attorney fees based on its determination of reasonableness of the fee requested for the work product; (2) if the Court of Appeals reduces the amount of the fee claimed, the court shall provide the appointed counsel with a brief explanation for the reduction; (3) in the event of a reduction by the Court of Appeals, appointed counsel may petition for reconsideration and submit *573additional documentation and explanation to the court without appearance; (4) the Court of Appeals shall set the final amount of compensation without further explanation; and (5) to the extent this assessment of the lawyer’s work is factual, the Court of Appeals’ factual decision is final.”

307 Or at 51.

Counsel and amici sought review specifically as to whether the Court of Appeals had complied with the second guideline, viz., the requirement that the court provide counsel with “a brief explanation for the reduction.” As the majority explains, the Court of Appeals’ check-list system complies with that requirement. No other or more extensive review was suggested by counsel or amici. Thus, for the purposes of this case, it is appropriate for us to assume that counsel and amici believe that, if the explanation provided to counsel was legally sufficient, there is no other basis for challenging the legal sufficiency of the Court of Appeals’ decision in this case.

That is not to say, however, that there could not be, in an appropriate case, a challenge to the legal sufficiency of the Court of Appeals’ compliance with some other requirement of law, e.g., the requirement that the final amount awarded by the Court of Appeals under guidelines (4) and (5) be “reasonable.” Such a requirement, although not specifically mentioned in either guideline, is implicit because of the statutory directive to the Court of Appeals to award to counsel “a reasonable amount of compensation.” ORS 138.500(4). Nothingthat this court said (or, could have said) in Longjawnegated this legislative directive; indeed, it is one of the reasons that the court noted, in Longjaw, that “the [Cjourt [of Appeals] cannot act arbitrarily in making its decision.” State v. Longjaw, supra, 307 Or at 50. This statement recognizes that decisions as to what is a reasonable amount for attorney fees are reviewed for an abuse of discretion. See also Miller v. Fernley, 280 Or 333, 337, 570 P2d 1178 (1977) (“The determination of the amount of attorney fees is left to the sound discretion of the court”); Slocum v. Harder, 275 Or 725, 729, 553 P2d 349 (1976) (although amount awarded for attorney fees was less than amount requested, “the amount set was within the discretion of the trial court as long as it was not more than the amount of which there was evidence’ ’).

The requirement that counsel be awarded a reasonable amount as compensation is also the reason for the qualifying *574clause in the fifth guideline in Longjaw: “to the extent [that] this assessment of the lawyer’s work is factual, the Court of Appeals’ factual decision is final.” State v. Longjaw, supra, 307 Or at 51 (emphasis added). To a very large extent, the Court of Appeals’ final decision is purely factual and therefore immune from review, because whether a particular award is “reasonable” is a factual determination and because the choice as to what “reasonable” amount to award is discretionary. But discretion can be abused and, where that occurs, the court that abuses it is guilty of a legal error.

It follows that, where the Court of Appeals has followed the Longjawformat, as we hold that the court did in the case before us, but counsel is still dissatisfied because counsel believes that the final award is not a “reasonable” amount, counsel still may seek review of that award on the ground that the award represents an abuse of discretion. Petitions for review on this ground should be rare — counsel needs to recognize that the discretion given to the Court of Appeals is wide, and that petitions challenging the exercise of that discretion will need to point to some kind of patent unreasonableness in the outcome in order to succeed. In a few limited circumstances, counsel may believe that it is appropriate to argue that such an abuse has occurred. And it is clear from the requirement of ORS 138.500(4) that, where such petitions are filed, we have a role to play in assuring that the requirements of the law have been met.

Unis, J., joins in this concurring opinion.

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