concurring in the judgment.
The petitioner in this case, charged with a felony, received court-appointed counsel, which is available in Oregon to a defendant who executes a statement that he is unable to obtain counsel, when it appears to the court that the defendant is without means. Ore. Rev. Stat. §§ 135.050 (1) (c), (d) (1973). Petitioner was convicted, and sentenced to five years' probation. One of the conditions of probation was that petitioner reimburse the county for the cost of his appointed attorney’s fees and for the expenses of a defense investigator.1 These costs were *55assessed pursuant to the Oregon recoupment statute, §§ 161.665-161.685, which authorizes the sentencing court to require a convicted defendant to pay certain costs2 and to condition probation on such payment.
Although a defendant might have been indigent at the time of trial, the Oregon statutory scheme recognizes that at some point after trial a defendant may escape from indigency. As noted, the recoupment statute thus allows the court to require a convicted defendant to pay costs. § 161.665 (1). Payment of the costs may be made a condition of probation. § 161.675 (2). But it forbids the court to impose such a requirement at the time of sentencing unless the defendant at that time “is or will be able to” pay those costs and requires the court to consider the “nature of the burden that payment of costs will impose” on the defendant. § 161.665 (3). Under the statute, a court which has sentenced a defendant to pay costs may remit the payment of the amount due, or modify the method of payment, if it appears that the payment will impose manifest hardship on the defendant or his immediate family. § 161.665 (4).
*56The Court of Appeals of Oregon construed the statutory scheme in this case to limit sharply the discretion of the trial court to require the repayment of costs. 12 Ore. App. 152, 504 P. 2d 1393. As the court interpreted the statute, a defendant can be required to repay appointed counsel’s fee “only if and when he is no longer indigent.” Id., at 159, 504 P. 2d, at 1397 (emphasis added). While payment of costs may be made a condition of probation, probation can be revoked only if the court specifically finds that “(1) the defendant has the present financial ability to repay the costs involved (either all or by installments) without hardship to himself or his family . . . and (2) the defendant’s failure to repay ... is an intentional, contumacious default . . . .” Ibid. Revocation is improper if both of these elements are not established.
The narrow construction of the Oregon recoupment statute in this case disposes of petitioner’s claim that the statute “chills” the exercise of the right to counsel. Repayment cannot be required until a defendant is able to pay the costs, and probation cannot be revoked for nonpayment unless there is a specific finding that payment would not work hardship on a defendant or his family. Under these circumstances, the “chill” on the exercise of the right to counsel is no greater than that imposed on a nonindigent defendant without great sums of money. Even though such a defendant can afford counsel, he might well be more ready to accept free appointed counsel than to retain counsel himself. Yet a State is not therefore required by the Federal Constitution to provide appointed counsel for nonindigent defendants.3
*57Nor is it a denial of equal protection to assess costs only against those defendants who are convicted. The acquitted defendant has prevailed at trial in defending against the charge brought by the State. It is rational that the State not recover costs from such a defendant while recovering costs from a defendant who has been found guilty beyond a reasonable doubt of the crime that necessitated the trial. Similarly, too, it is rational not to assess defendants against whom charges have been dismissed, since the State has not proved its charges against them.'4
My Brother Marshall argues that the Oregon recoupment statute denies indigent defendants equal protection of the laws in that it contemplates revocation of probation and subsequent imprisonment for nonpayment of counsel fees. He notes that Art. 1, § 19, of the Oregon Constitution provides that “[t]here shall be no imprisonment for debt, except in case of fraud or absconding debtors,” and argues that a defendant who failed to pay a bill to his retained counsel could not be imprisoned.
I do not believe that this claim was properly preserved below or is properly before this Court. Petitioner did argue that the possibility of imprisonment for debts owed the State under the recoupment statute denied him equal protection, but there is no indication that the Oregon Court of Appeals was alerted to the problems *58posed by Art. 1, § 19. Petitioner did not even mention the section in his brief before this Court.5 Yet there is, as my Brother Marshall notes, an apparent inconsistency between Art. 1, § 19, and the recoupment statute. It may be, therefore, that the Oregon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue. But on the record of this case, they have not made that determination of state law. Nor can we assume that the Oregon courts have in fact implicitly rejected the applicability of Art. 1, § 19, in upholding the recoupment statute in this case; there is no evidence that an Oregon court must, or even may, sua sponte, consider arguments not argued or briefed to it.
While this Court may at times adopt theories different from those urged by counsel or urged before the state courts when resolving a particular question, see Dewey v. Des Moines, 173 U. S. 193, 198; cf. Stanley v. Illinois, 405 U. S. 645, 658 n. 10, it will not pass on questions substantively different from those presented to the state courts, even when the federal claim is nominally based on the same federal constitutional clause relied on before the state courts, see Wilson v. Cook, 327 U. S. 474, 483-484. More crucially, the federal Equal Protection Clause could be violated in this case only if a particular construction of state law were to be adopted by the state *59courts. That construction was not adopted on the record before us, and we cannot simply assume that the state court would so rule and strike down the state statute on the basis of that assumption.
Por these reasons, I do not reach the merits of the equal protection question presented by the dissent. And since that question is not properly before us, I believe that the Court errs in rendering an advisory opinion on the merits, an error compounded by the absence of any record below amplifying those merits. The Court not only renders an advisory opinion; it renders it in a vacuum. The proper construction of state law, and the proper resolution of the dependent equal protection claim, would properly be raised by another litigant or by petitioner by way of collateral attack.
In view of the manner in which the application of the recoupment statute has been stringently narrowed by the Court of Appeals of Oregon and because the claim urged by the dissent is not properly before the Court, I concur in the judgment of the Court.
In this case, the petitioner’s father apparently paid the costs, and petitioner will repay his father.
The costs which can be assessed are limited by statute to those “specially incurred” by the State in prosecuting a defendant. Ore. Rev. Stat. § 161.665 (2). The Oregon Court of Appeals found that most costs on the prosecution side of the case could not be charged to a defendant, including police investigations, district attorneys' salaries, and sheriffs’ salaries. 12 Ore. App. 152, 157, 504 P. 2d 1393, 1396. Also, jury fees and the costs of summoning jurors cannot be charged to the defendant. Ibid.; see Ore. Rev. Stat. § 161.665 (2). The costs which can be charged appear limited to those incurred for a defendant’s benefit, such as defense counsel, defense investigators, and so on, which would be borne by a non-indigent defendant in a criminal trial. In addition, the Oregon statutory scheme places limits on the fees which an appointed counsel can receive, except in “extraordinary circumstances,” thus limiting the eventual responsibility of a defendant under the recoupment statute. § 135.055.
Indeed, while a defendant who is not indigent at the time of trial must pay counsel fees even if acquitted, the Oregon recoup*57ment statutes do not permit the assessment of costs against a defendant who is not convicted.
Petitioner, relying on James v. Strange, 407 U. S. 128, also claims that the recoupment statute is impermissible because it fails to provide the same exemptions from execution provided other Oregon debtors. The Oregon Court of Appeals in this case held that all exemptions provided other debtors also apply under the recoupment statute. 12 Ore. App., at 159, 504 P. 2d, at 1397. Petitioner’s claim that the statute deprives him of due process was not raised below and hence is not before this Court.
The opinion of the Oregon Court of Appeals, including the dissent, does not mention Art. 1, § 19. Petitioner's equal protection argument here was based on claims that the recoupment statute did not provide the same statutory exemptions granted other Oregon debtors, discriminated against convicted defendants as opposed to acquitted defendants and defendants who had charges dismissed, and favored defendants who were sentenced to the penitentiary. The Art. 1, § 19, problem was brought to the attention of the Court only by the amicus curiae brief of the National Legal Aid and Defender Association.