FILED: November 6, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

BRIAN DEWITT,

Appellant,

v.

DAN JOHNSON,
Superintendent,
Snake River Correctional Institution,

Respondent.

980729869M; A113673

Appeal from Circuit Court, Malheur County.

J. Burdette Pratt, Judge.

On appellant's and respondent's joint motion for remand filed September 18, 2002.

Bob Pangburn and Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kathleen Cegla, Assistant Attorney General, for motion.

Before Brewer, Presiding Judge, and Wollheim and Kistler, Judges.

PER CURIAM

Judgment for attorney fees vacated and remanded; otherwise affirmed.

PER CURIAM

This is the second time this matter has been before us. In the initial proceeding plaintiff appealed from the trial court's dismissal of his petition for a writ of habeas corpus. We granted defendant's motion for summary affirmance. ORS 34.712. In the appellate judgment, we certified $1,964.49 in court-appointed attorney fees. After the appellate judgment was entered, the trial court entered a money judgment against plaintiff in the amount of $2,012.49 ($1,964.49 in attorney fees and $48.00 in transcription costs). Plaintiff appeals from that judgment.

Plaintiff argues that the trial court erred in not considering his ability to pay. ORS 151.505(4); see Bacote v. Johnson, 333 Or 28, 35 P3d 1019 (2001). Plaintiff also relies on Hernandez-Reyes v. Lampert, 178 Or App 76, 35 P3d 1066 (2001), where we held that it was error for the trial court to enter a money judgment against a petitioner in a post-conviction proceeding based on the appellate judgment without considering the petitioner's ability to pay. Id. at 81. The state concedes error, and we accept the concession.

We vacate the judgment for attorney fees and remand this matter to the trial court for it to consider plaintiff's ability to pay.

Judgment for attorney fees vacated and remanded; otherwise affirmed.


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