
    Argued and submitted April 18,
    reversed and remanded June 27, 1984
    STATE OF OREGON, Respondent, v. LARRY BRUCE NICHOLS, Appellant.
    
    (81-30770; CA A30145)
    683 P2d 565
    Charles N. Fadeley, Eugene, argued the cause and filed the brief for appellant.
    Brenda Peterson, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General.
    Before Richardson, Presiding Judge, and Warden and Newman, Judges.
    PER CURIAM
   PER CURIAM

Defendant 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.

On 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).

Reversed and remanded.  