¶1Defendant appeals an order that required that $45 be withheld from his security deposit to apply toward paying the fees of his court-appointed attorney. Defendant had been arrested for driving while suspended. ORS 487.560. The court had determined that defendant was “without means to obtain counsel” and had appointed counsel to represent him. ORS 135.045; 135.050. At trial, on the state’s motion, the court dismissed the charge. The court then made the challenged order. See ORS 135.265(2). The court erred when it made the order without first determining, as required by ORS 135.055(6), that defendant was able to pay. Defendant’s son had posted the security deposit. A defendant is not necessarily able to pay attorney fees simply because he, or a friend or relative on his behalf, has posted a security deposit.
¶2On remand the court and parties will need to consider the memorandum of Chief Justice Peterson to all circuit and district court judges dated May 15, 1984, relating to the judgment dated May 14, 1984, by the United States District Court for the District of Oregon, in Fitch v. Belshaw, 581 F Supp 273 (DC Or 1984), that ordered termination of collection of attorney fees from acquitted persons pursuant to ORS 135.055(6).
¶3Reversed and remanded.