FILED: October 17, 2007

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE ex rel ARLEN PORTER SMITH,

Relator-Appellant,

v.

CALVIN CURTHS,
Lieutenant,
Criminal Investigation Services Division, Oregon State Police;
OREGON STATE POLICE;
STEVEN DINGLE,
Marion County Deputy District Attorney;
MARION COUNTY DISTRICT ATTORNEY'S OFFICE,

Defendants-Respondents.

Marion County Circuit Court
01C10356; A114189

Robert J. Morgan, Senior Judge. (Judgment of Dismissal)

Richard D. Barber, Judge. (Supplemental Judgment)

Submitted on record and briefs September 7, 2007.

Arlen Porter Smith filed the brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erin C. Lagesen, Assistant Attorney General, filed the brief for respondents.

Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges.

PER CURIAM

Supplemental money judgment for filing fees reversed and remanded; otherwise affirmed.

PER CURIAM

Plaintiff-relator appeals a judgment of dismissal of his alternative writ of mandamus and a supplemental money judgment for filing fees that previously had been deferred. We reject without discussion plaintiff-relator's argument that the court erred in dismissing the writ. Plaintiff-relator argues that the court erred in entering the supplemental judgment without making a determination that he had the ability to pay the fees. The state concedes that the trial court erred in that regard. We accept that concession. See State ex rel Baker v. Cook, 171 Or App 719, 720, 16 P3d 1184 (2000) (in mandamus action, trial court erred in requiring plaintiff-relator to pay previously deferred filing fees).

Supplemental money judgment for filing fees reversed and remanded; otherwise affirmed.


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