Appointment of counsel and furnishing of transcript for appellant without funds
- compensation
Source:
Section 138.500 — Appointment of counsel and furnishing of transcript for appellant without funds; compensation, https://www.oregonlegislature.gov/bills_laws/ors/ors138.html.
Notes of Decisions
Indigency is a question of fact, reviewable only to determine whether there was an abuse of discretion. State v. Hari, 16 Or App 357, 518 P2d 1054 (1974), Sup Ct review denied
This section does not give Supreme Court authority to award attorney fees on appeal in habeas corpus cases to counsel appointed by circuit courts. Penrod/Brown v. Cupp, 284 Or 417, 587 P2d 96 (1978)
This section and [former] ORS 151.280, authorizing Public Defender Committee to determine when Public Defender is unable to serve as appointed appellate counsel, do not unconstitutionally encroach upon power of judiciary to regulate practice of law. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)
Under this section, requiring that court furnish indigent defendant such portions of transcript as are “necessary” and “material to the decision on appeal,” it was proper for trial court to require affidavit informing court of defendant’s contentions on appeal. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)
This section does not violate indigent defendant’s constitutional right to transcript on appeal. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)
Where trial court denied request for transcript under this section and defendant wanted to renew the request, defendant should have filed motion before Court of Appeals to order transcript under ORAP 6.15. State v. Montgomery, 294 Or 417, 657 P2d 668 (1983)
When motion is made for transcript to be provided at public expense: 1) appellate counsel’s affidavit in support of motion must reflect contact with trial counsel and, in reasonable detail, trial counsel’s efforts to assist, including recollections of specific trial court rulings on objections, jury instructions given or requested and pretrial motions or rulings; 2) if motion for judgment of acquittal was made, and denial of motion is to be claimed error, transcript must be provided for entire evidentiary portion of trial; 3) if appeal includes challenge to sentence imposed, full transcript of evidentiary portions of trial must be provided, as well as testimony presented on pretrial motions; and 4) appellate counsel is, in absence of any evidence to the contrary, entitled to presumption that representations of reasons for needing transcript are made honestly and in good faith. State v. Bonner, 66 Or App 1, 672 P2d 1333 (1983)
Where public defender services corporation was under contract to provide trial court services but would not be contractually compensated for appellate representation, this section did not exclude compensation as court-appointed counsel on appeal. State v. Garcias, 298 Or 152, 690 P2d 497 (1984)
In criminal case with appointed counsel on appeal: 1) Court of Appeals shall set attorney fees based on determination of reasonableness of fee requested; 2) if Court of Appeals reduces amount of fee claimed, court shall provide counsel with brief explanation for reduction; 3) after reduction by Court of Appeals, counsel may petition for reconsideration and submit additional documentation and explanation to court; 4) Court of Appeals shall set final amount of compensation without further explanation; and 5) to extent assessment of lawyer’s work is factual, Court of Appeals’ factual decision is final. State v. Longjaw, 307 Or 47, 761 P2d 1331 (1988)
Under this section, Court of Appeals had discretion to grant extension of time in which to petition for court-appointed attorney fees, and where counsel had documented and unanticipated medical condition which substantially interfered with ability to file petition for fees in timely manner, extraordinary circumstances warranting further time were presented. State v. Vanderburg, 98 Or App 428, 781 P2d 1216 (1989)
Form advising that court appointed attorney spent too much time researching and writing brief and preparing for and attending oral argument sufficiently explained why Court of Appeals reduced attorney fees. State v. Robinson, 313 Or 565, 835 P2d 908 (1992)
Finding that counsel asserted frivolous argument in bad faith or for improper purpose is not required to find fees unreasonable. Lee v. Maass, 118 Or App 401, 847 P2d 890 (1993)
This section does not authorize compensation to court-appointed counsel for expending unnecessary time preparing frivolous argument. Lee v. Maass, 118 Or App 401, 847 P2d 890 (1993)
Where appellate judgment had already issued, error by counsel in calculating time for requesting court-appointed attorney compensation was not extraordinary circumstance excusing late filing. State ex rel Juv. Dept. v. Blomquist, 126 Or App 637, 870 P2d 238 (1994)
In determining whether to grant relief from default after late filing of request for court-appointed attorney compensation, court considers how late request is, whether judgment has been entered, how promptly counsel sought to cure problem and reasons given for delay. State ex rel Juv. Dept. v. Davis, 126 Or App 641, 870 P2d 236 (1994)
“Criminal action” has same meaning as definition set forth in ORS 131.005. Johnson v. McGrew, 137 Or App 55, 902 P2d 1209 (1995), Sup Ct review denied
Where, after due diligence, appellate counsel is unable to designate possible contention of error justifying provision of transcript at public expense, transcript is not required for representation by appellate counsel to be constitutionally adequate. State v. Richter, 140 Or App 1, 914 P2d 703 (1996), Sup Ct review denied
Appointment of appellate counsel is not authorized where appeal is from limited judgment ordering criminal defendant to pay portion of appointed trial counsel costs. State v. Shank, 206 Or App 280, 136 P3d 101 (2006)
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