(concurring) — I concur with the majority opinion because it has narrowly circumscribed the apparent rejection of recoupment of attorney’s fees in State ex rel. Brundage v. Eide, 83 Wn.2d 676, 521 P.2d 706 (1974) to the specific facts at hand. As a result the majority has left for further consideration the question whether, as a term of probation, a defendant may be required to repay the state for fees paid to a court-appointed attorney (1) if a recoupment statute provides the constitutional safeguards noted in Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974); or (2) if, in the absence of legislation, a trial court fashions terms of probation which meet the Fuller criteria.
It is important that the instant case has left this matter open to further consideration. Most courts and legislatures which have dealt with the subject have considered it logical that a probationer who was indigent at the time of trial but who later acquires the ability to pay his court-appointed attorney should do so. Fuller v. Oregon, supra, aff’g State v. Fuller, 12 Ore. App. 152, 160, 504 P.2d 1393 (1973); James v. Strange, 407 U.S. 128, 141, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972); Rinaldi v. Yeager, 384 U.S. 305, 311, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966); People v. Amor, 12 Cal. 3d 20, 523 P.2d 1173, 114 Cal. Rptr. 765 (1974); In re H., 2 Cal. 3d 513, 522, 468 P.2d 204, 86 Cal. Rptr. 76 (1970). It has been deemed necessary only that the required reimbursement conditions do not violate the Sixth Amendment right to counsel. Fuller v. Oregon, supra; People v. Amor, supra. In .this regard, recoupment statutes in Oregon and California have been held to provide adequate constitutional safeguards when requiring repayment of attorney’s fees. Fuller v. Oregon, supra; People v. Amor, supra. These cases require that: (1) the defendant be given notice at the time *56counsel is appointed that the repayment obligation will be conditioned on his future ability to pay; (2) the defendant be convicted; (3) the imposition of costs be based on a foreseeable ability to pay without hardship to the defendant or his immediate family; (4) the defendant be entitled to the same exemption as civil judgment debtors at execution; and (5) the order may not be enforced by contempt unless nonpayment is intentional or in bad faith.1
The foregoing requirements effectively prevent discouragement of an indigent defendant’s exercise of his right to counsel. A defendant’s knowledge that he eventually may be required to repay his attorney’s fees, if he is able to do so without hardship, has no logical impact upon his eligibility to obtain free counsel at the time he needs it, i.e., when criminal proceedings are commenced against him. There is no constitutional requirement that he be provided with the services of a lawyer as a “hand-out.” An indigent defendant who later becomes able to pay his attorney’s fees is no more discouraged from obtaining counsel than is a nonindigent defendant who has only moderate funds but who must decide whether to spend them on an attorney. As stated in Fuller v. Oregon, supra at 53-54, “We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.”
With expanding criminal dockets and the appointment of more lawyers for more indigents in an ever-widening class of cases, the burden on public funds must be given some common-sense consideration. Recoupment of attorney’s fees will benefit the state by reimbursement as well as by deterring defendants who might otherwise falsely claim indi*57gency. If an “indigent” defendant knows he must repay attorney’s fees if and when he becomes able to do so, he may actually prefer to retain a lawyer of his own choice rather than look for a “free ride.”
Because the majority has left open the issue of recoupment of attorney’s fees as a condition of probation, I concur in the decision.2
Wright and Horowitz, JJ., concur with Stafford, C.J.
It appears that the trial judge in the instant case, as in State ex rel. Brundage v. Eide, 83 Wn.2d 676, 521 P.2d 706 (1974), may have failed to" meet the constitutional guidelines of Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974), aff’g State v. Fuller, 12 Ore. App. 152, 504 P.2d 1393 (1973), and People v. Amor, 12 Cal. 3d 20, 523 P.2d 1173, 114 Cal. Rptr. 765 (1974), when ordering recoupment of attorney’s fees from the defendant as a condition of probation.
Adoption of legislation similar to the recoupment statutes enacted by Oregon and California should be given serious consideration.