
    Argued and submitted July 16,
    conviction affirmed; judgment modified to require defendant to pay court-appointed attorney fees December 26, 1990
    STATE OF OREGON, Respondent, v. JACK HARVEY YOUNGBLOOD, Appellant.
    
    (10-88-08578; CA A62350)
    803 P2d 289
    Dorothy J. Morey, Eugene, argued the cause and filed the brief for appellant.
    Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
    Before Richardson, Presiding Judge, and Newman and Deits, Judges.
    PER CURIAM
   PER CURIAM

Defendant appeals his conviction for criminal nonsupport. ORS 163.555. He contends that the court erred by denying his motion for acquittal, because there was no evidence that he had the ability to make support payments. There was sufficient evidence from which the jury could find that element beyond a reasonable doubt.

He also contends that the court erred by assessing an amount for recovery of court-appointed attorney fees in excess of the amount actually expended by the state. The state concedes error, and we agree. The evidence showed that defendant’s counsel received a flat fee of $390 for each case handled as court-appointed counsel. See State v. Westby, 99 Or App 371, 781 P2d 1270 (1989). The court apparently calculated the fee on the basis of the number of hours spent by counsel in defense of the charge and ordered defendant to pay $1,020, despite defendant’s objection.

Conviction affirmed; judgment modified to require defendant to pay court-appointed attorney fees of $390.  