(concurring) — Both the majority opinion and the concurrence by Stafford, C.J., refer to the decision of the United States Supreme Court in Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974). The majority opinion implies, but the concurrence by Stafford, C.J., states explicitly, that “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.”
I see no real difference in whether the safeguards emphasized in Fuller are prescribed (a) by statute or (b) by an appropriate order of a trial court as terms of granting probation. In other words, substance in terms of legal effect should be the paramount consideration whether this is pursuant to a statute or an appropriate order of a trial court. I think this should be made quite clear in the instant case for the guidance of those trial judges and trial counsel involved in other cases where the question is raised as to the recoupment of attorneys’ fees for court-appointed counsel for indigent criminal defendants.
Hamilton, J., concurs with Finley, J.