FILED: December 27, 2000

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE ex rel ROSS LLOYD BAKER,

Appellant,

v.

DAVE COOK,
Director,
Department of Corrections,

Respondent.

(00C-10592; CA A110010)

Appeal from Circuit Court, Marion County.

Richard Barber, Judge.

Submitted on record and briefs November 3, 2000.

Ross L. Baker filed the brief, pro se.

Rolf C. Moan filed the brief for respondent. With him on the brief was Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

PER CURIAM

Judgment for filing fees of $167 reversed; otherwise affirmed.

PER CURIAM

Plaintiff, a prisoner at the Snake River Correctional Institution, appeals the trial court's denial of his petition for a writ of mandamus. We write only to discuss the court's action in requiring him, as part of the judgment of dismissal, to pay filing fees of $167; it had previously deferred payment of those fees. The state concedes that the trial court erred, and we agree.

When plaintiff filed his petition, he attached an Affidavit of Indigency, in which he stated that: he had $22.48 in a Department of Corrections trust account; he had no net income over the previous 12 months; he had no other money on hand or in savings; and he owned no real or personal property. Based on that affidavit, the trial court deferred the initial payment of fees. There was no further information about plaintiff's financial situation in the record when the trial court later dismissed the case.

ORS 21.605(1)(a) gives a trial court authority to defer or waive fees if it finds that a party is unable to pay them. In Stanwood v. Multnomah County, 135 Or App 58, 61, 898 P2d 196 (1995), we held that a trial court abused its discretion when it denied a motion to waive the initial filing fees for an indigent prisoner. The same principle applies to the imposition of those fees as part of a final judgment. Nothing in the record suggests that plaintiff is or will be capable of paying the filing fees, and it was an abuse of discretion to impose them as part of the judgment.

Judgment for filing fees of $167 reversed; otherwise affirmed.


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