                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 93-KA-01114-SCT

                                    CONSOLIDATED WITH

                                        94-KA-00029-SCT
JERRY L. SCAFIDEL
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                             10/27/93
TRIAL JUDGE:                                  HON. KEITH STARRETT
COURT FROM WHICH APPEALED:                    PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       PATSY ANN BUSH
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL

                                              BY: WAYNE SNUGGS
DISTRICT ATTORNEY:                            DUNN LAMPTON
NATURE OF THE CASE:                           CRIMINAL - MISDEMEANOR
DISPOSITION:                                  AFFIRMED IN PART; REVERSED AND
                                              RENDERED IN PART - 1/23/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     BEFORE SULLIVAN, P.J.,SMITH AND MILLS, JJ.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




Jerry Scafidel was charged with practicing law without a license in violation of Miss. Code Ann.
§ 73-3-55 in a criminal affidavit filed on September 2, 1992. The trial was held in the County Court
of Pike County on November 18, 1992. After all of the evidence was presented, the jury found
Scafidel guilty as charged. Pike County Court Judge Thad Leggett sentenced Scafidel to a suspended
one year sentence with two years probation pursuant to Miss. Code Ann. § 97-23-43, with Scafidel
paying all court costs. As a condition of his probation, Scafidel was required to perform public
service on Saturdays and Sundays for one year. He was also prohibited from performing any other
legal services in violation of § 73-3-55.

Scafidel filed a motion for a new trial which was denied by an order filed on December 2, 1992. On
December 4, 1992, Scafidel filed his notice of appeal to the Pike County Circuit Court, and on March
25, 1993, he filed a motion to proceed in forma pauperis and for appointment of counsel. Circuit
Court Judge Keith Starrett ordered appointment of counsel for Scafidel and granted his motion to
proceed in forma pauperis. However, the judge also required Scafidel to deliver certain assets to the
court to be sold for partial payment of his attorney and court costs. As a result, Scafidel withdrew his
request to appeal in forma pauperis. The circuit court affirmed the judgment and sentence of the
county court in an order filed on August 27, 1993.

On September 24, 1993, Scafidel filed his notice of appeal to this Court from the circuit court's order
affirming the county court's judgment and sentence. He then filed a motion to appeal in forma pauperis
on October 1, 1993. The hearing on this motion was held on October 15, 1993, after which Judge
Starrett ordered counsel to be appointed for Scafidel. The circuit court granted Scafidel's motion to
proceed in forma pauperis in an order filed on October 27, 1993. However, the court set bond at $5,
000.00 and required Scafidel to contribute the greater of $250.00 per month or one-half of his monthly
income toward his attorney and court costs. Scafidel filed a motion to reconsider the October 27
order, and on November 15, 1993, Judge Starrett ordered that bond be reduced to $1,000.00, but
denied Scafidel's motion to reconsider the monthly payments. On January 4, 1994, Scafidel filed his
notice of appeal to this Court from the October 27 order requiring him to make the monthly
payments. From a motion filed on February 3, 1994, the two appeals were consolidated in an order by
this Court filed on April 15, 1994. On appeal to this Court, Scafidel assigns the following as error:


I. WHETHER THE TRIAL COURT ERRED IN FAILING TO APPRISE MR. SCAFIDEL
OF HIS RIGHT TO COUNSEL AND TO INFORM HIM THAT IF HE COULD NOT
AFFORD COUNSEL ONE WOULD BE APPOINTED TO HIM AND TO FIND ON THE
RECORD THAT MR. SCAFIDEL MADE A KNOWING AND INTELLIGENT WAIVER OF
HIS RIGHT TO COUNSEL.

II. WHETHER THE TRIAL COURT ERRED IN SUSTAINING MR. REGAN'S
OBJECTION TO QUESTIONS ASKED BY MR. SCAFIDEL TO KATHLEEN HARBOUR
ON GROUNDS THAT THE QUESTIONS WERE IRRELEVANT.

III. WHETHER THE TRIAL COURT AND THE CIRCUIT COURT JUDGES BOTH
ERRED IN FAILING TO FIND THE STATUTE UNDER WHICH MR. SCAFIDEL WAS
CHARGED AND CONVICTED CONSTITUTIONALLY OVERBROAD AND VOID FOR
VAGUENESS

IV. WHETHER THE CIRCUIT COURT JUDGE ERRED IN IMPOSING A MONTHLY
OBLIGATION OF PAYMENT OF MONIES TO THE CIRCUIT COURT CLERK OF PIKE
COUNTY, MISSISSIPPI TO HELP DEFRAY COURT COSTS AND COURT APPOINTED
FEES FOR HIS APPEAL TO THE SUPREME COURT WHEN MR. SCAFIDEL SIGNED
AN AFFIDAVIT OF INDIGENCY AND COULD NO LONGER PURSUE THE CAREER IN
WHICH HE WAS ENGAGED AT TIME OF TRIAL.
                                 STATEMENT OF THE FACTS

Jerry Scafidel operated a business out of his house on Wardlaw Road in McComb, Mississippi
performing "legal typing services." His advertisement in local papers stated that he charged $230.00
to $250.00 for bankruptcy and $150.00 for no-fault divorce. The ads further stated, "I am not a
lawyer and do not charge like one" and indicated that by using his services, a potential client could
save $300.00 to $500.00. A sign in front of his house read "Legal Assistance, Jerry Scafidel."

Robert S. Van Norman read one of Scafidel's ads in the Enterprise-Journal and decided to see
Scafidel about filing for bankruptcy. Van Norman was behind on his bills, because he had been laid
off from his job as a construction worker. Tired of the constant calls from his creditors, Van Norman
first sought to hire a lawyer to handle his bankruptcy at the advice of a couple of his creditors.
However, when he called a few lawyers to get an estimate on the cost, he learned that the going rate
was between $500.00 and $700.00 for a bankruptcy case. Not having $500.00 to $700.00 to spend,
Van Norman instead decided to contact Jerry Scafidel.

When Van Norman and his wife went to see Scafidel at his office, they agreed that Scafidel would
prepare and file Van Norman's chapter seven bankruptcy forms for a fee of $230.00. Scafidel
instructed Van Norman and his wife to bring him their most recent bills, most recent balances, and
their tax returns from the last three years. The Van Normans gave Scafidel the documents that he
requested, Scafidel asked the couple some questions, and he wrote the information down on a yellow
legal pad.

Scafidel made it clear throughout his transactions with Van Norman that Scafidel was not an
attorney, and neither Van Norman nor his wife was ever under the impression that Scafidel was an
attorney. In fact Scafidel had Van Norman sign a disclaimer that stated that Scafidel only worked as a
secretarial service, was not a lawyer and did not give legal advice. This "information sheet" also
recommended certain legal texts for Scafidel's clients to refer to for information on laws and
procedures for making their own legal decisions. Among the texts included were Volume 22 of the
Mississippi Code on bankruptcy and How to File for Bankruptcy, by Elias Renauer. Van Norman
testified at trial that he would never have hired Scafidel if he had read these texts prior to their
dealings.

On June 22, 1992, Van Norman went by Scafidel's office on his way out of town for a fishing trip.
Van Norman signed the blank bankruptcy forms for Scafidel to fill out and mail over the weekend.
Van Norman had no knowledge of the bankruptcy laws or legal terminology required to fill out the
bankruptcy forms. He simply provided Scafidel with the financial information that Scafidel requested.
Scafidel filled out the forms with no further input from Van Norman and without counseling Van
Norman regarding the different types of bankruptcy, regulations governing the bankruptcy process,
different property categories, or any other pertinent information. Scafidel mailed Van Norman's
bankruptcy petition, and Van Norman attended a creditor's meeting without legal representation in
Jackson regarding his bankruptcy. It was at this meeting that Van Norman became aware of the
complications in filing for bankruptcy and the law prohibiting a non-lawyer from filling out another
person's bankruptcy petition. Van Norman subsequently obtained the services of Jack Price, an
attorney in McComb, to handle his bankruptcy case.
Van Norman contacted Pike County Prosecutor William Ben Regan, who filed a criminal affidavit
against Jerry Scafidel on September 2, 1992. The affidavit charged Scafidel with practicing law
without a license in violation of Miss. Code Ann. § 73-3-55. Scafidel's trial was held in the County
Court of Pike County on November 18, 1992. The jury found Scafidel guilty as charged, and Pike
County Court Judge Thad Leggett sentenced Scafidel under Miss. Code Ann. § 97-23-43 to a
suspended one year sentence with two years probation, with Scafidel paying all court costs. Under
the terms of the probation, Scafidel was required to work at public service on Saturdays and Sundays
for one year and to refrain from further violations of § 73-3-55.

Scafidel appealed to the Circuit Court of Pike County, Mississippi and made a motion to proceed in
forma pauperis and for appointment of counsel. The circuit court appointed Scafidel counsel for
purposes of appeal, granted his motion to proceed in forma pauperis, and affirmed the conviction and
sentence of the county court. However, the circuit court ordered Scafidel to sell some of his assets to
help defray attorney and court costs, so Scafidel withdrew his motion. After the circuit court's
affirmance of the lower court's decision, Scafidel appealed to this Court and made a motion for
appointment of counsel for that appeal and to proceed in forma pauperis. The circuit court again
appointed counsel and again granted his motion to proceed in forma pauperis, but required Scafidel
to contribute to the attorney and court costs by paying the greater of one-half of his monthly earnings
or $250.00 per month. Scafidel appealed to this Court from the circuit court's order requiring him to
help pay court costs. These two appeals from the judgment and sentence and from the order to help
pay court costs have been consolidated by order of this Court.

                                   STATEMENT OF THE LAW

                                                    I.

WHETHER THE TRIAL COURT ERRED IN FAILING TO APPRISE MR. SCAFIDEL OF
HIS RIGHT TO COUNSEL AND TO INFORM HIM THAT IF HE COULD NOT AFFORD
 COUNSEL ONE WOULD BE APPOINTED TO HIM AND TO FIND ON THE RECORD
  THAT MR. SCAFIDEL MADE A KNOWING AND INTELLIGENT WAIVER OF HIS
                         RIGHT TO COUNSEL.

Scafidel first argues that he was denied his rights under Amendments Five, Six, and Fourteen of the
United States Constitution, because no finding was made in the record that he made a valid waiver of
his right to counsel after being informed of that right. Both sides agree that Scafidel was an indigent
and that he represented himself at trial. They also agree that the record is silent as to whether Scafidel
waived his right to counsel or was informed of such right. The issue here is whether the right to
counsel had attached so as to require the trial court to advise Scafidel of that right and determine
whether Scafidel made a valid waiver thereof.

In Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), the United States Supreme Court held that a
criminal defendant cannot be imprisoned for either a felony or a misdemeanor without representation
by counsel. The Supreme Court clarified its holding in Argersinger through its decision in Scott v.
Illinois, 440 U.S. 367 (1979). In that case the Court explained that Argersinger does not extend to
cases in which the criminal defendant is charged with a misdemeanor punishable by a prison term but
in which no such sentence is given. Scott, 440 U.S. at 368-69. "[T]he Sixth and Fourteenth
Amendments to the United States Constitution require only that no indigent criminal defendant be
sentenced to a term of imprisonment unless the State has afforded him the right to assistance of
appointed counsel in his defense." Id. at 373-74 (emphasis added).

Scafidel argues that the Supreme Court in Argersinger emphasized that it was not proclaiming to set
the standards for state courts on the issue of appointment of counsel for indigents, but merely
establishing the federal constitutional requirements. Argersinger, 407 U.S. at 38. It is always true
that a state court can set higher constitutional standards than those minimum requirements set out by
the United States Supreme Court. However, this Court has not chosen to extend the ruling in
Argersinger, but instead has applied that standard at face value. See Nelson v. Tullos, 323 So.2d
539, 545-46 (Miss. 1975); Sheffield v. City of Pass Christian, 556 So.2d 1052, 1054-55 (Miss.
1990) (Robertson dissenting).

Scafidel was charged with practicing law without a license, a misdemeanor that is punishable under
§ 97-23-43 by up to $200.00 and/or one year imprisonment for a first-time offender, and by up to
$500.00 and/or two years imprisonment for a second-time offender. Miss. Code Ann. § 97-23-43.
However, Scafidel was not sentenced to actually serve any time in jail. His one year sentence was
suspended with a two year probationary period, during which he would perform public service. Since
Scafidel was not sentenced to any period of incarceration, the right to counsel did not attach in this
case, and the trial court was not required to inform him of such right or to determine whether
Scafidel's waiver was valid.

Scafidel points to Miss. Code Ann. § 99-15-15 as requiring appointment of counsel for persons
charged with a misdemeanor punishable by ninety days or more imprisonment "where a substantial
right may be affected." The full statute reads:

     When any person shall be charged with a felony, misdemeanor punishable by confinement for
     ninety (90) days or more, or commission of an act of delinquency, the court or the judge in
     vacation, being satisfied that such person is an indigent person and is unable to employ counsel,
     may in the discretion of the court, appoint counsel to defend him.

     Such appointed counsel shall have free access to the accused who shall have process to compel
     the attendance of witnesses in his favor.

     The accused shall have such representation available at every critical stage of the proceeding
     against him where a substantial right may be affected.

Reading the statute as a whole, it clearly states that whether counsel is appointed to such a defendant
is within the discretion of the court; it is not mandatory, but merely permissive. This argument,
therefore is without merit.

The other argument that Scafidel poses is that his Fifth and Fourteenth Amendment rights were
violated, because the county court took away his business without representation by counsel and
therefore without due process of law. Scafidel points to Jones v. Mississippi Farms Co., 76 So. 880,
883 (Miss. 1917), in which this Court held that the Fourteenth Amendment protects the right to make
contracts. However, the Fourteenth Amendment does not protect unlawful contracting; an individual
has no right to make illegal contracts, such as unlawful contracts to practice law without a license,
which could cause harm to the general public.
     [N]either property rights nor contract rights are absolute; for government cannot exist if the
     citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
     contract to work them harm. Equally fundamental with the private right is that of the public to
     regulate it in the common interest. . . . The Constitution does not guarantee the unrestricted
     privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may
     be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. . .
     . The Constitution does not secure to any one liberty to conduct his business in such fashion as
     to inflict injury upon the public at large, or upon any substantial group of the people.

Mississippi Milk Comm'n v. Vance, 129 So.2d 642, 653-54 (Miss. 1961). Furthermore, the practice
of law is a privilege and not a property right. Levi v. Mississippi State Bar, 436 So.2d 781, 786
(Miss. 1983). It certainly must follow, then, that the illegal practice of law is not a property right. "In
order for procedural due process to be invoked, there must be a denial of a right previously
recognized and protected by the state." Mississippi High School Activities Ass'n, Inc. v. Farris, 501
So.2d 393, 396 (Miss. 1987) (citing Paul v. Davis, 424 U.S. 693, 711 (1976)). As already stated
above, Scafidel had no right to appointment of counsel in the proceedings below nor any right to
practice law without a license, so it cannot be said that failure to appoint him counsel resulted in a
violation of due process.

Mississippi has no statutes nor prior case law requiring appointment of counsel for a criminal
defendant charged with a misdemeanor but not sentenced to any period of incarceration. Since the
right to counsel did not attach in this case, no error occurred in the trial court's failure to find on the
record that Scafidel had made a knowing, intelligent waiver of his right to counsel.

                                                     II.

 WHETHER THE TRIAL COURT ERRED IN SUSTAINING MR. REGAN'S OBJECTION
    TO QUESTIONS ASKED BY MR. SCAFIDEL TO KATHLEEN HARBOUR ON
          GROUNDS THAT THE QUESTIONS WERE IRRELEVANT.

Scafidel next assigns as error the trial court's exclusion of testimony by defense witness Kathleen
Harbour, a member of the Mississippi Bar Association Committee for the Unauthorized Practice of
Law. The trial court excluded as immaterial and irrelevant testimony by Ms. Harbour regarding the
duties of and number of paralegals and legal secretaries in Mississippi, the repeal of § 73-3-55, H &
R Block, income tax preparation, the American Bar Association Commission on Non-Lawyer
Practice, the possibility of dying from a mistake made in an appendix operation, and buying band-aids
at Wal-Mart or K-Mart.

Scafidel argues that Harbour's testimony regarding paralegals and legal secretaries was relevant as a
comparison of their work with his business performing "legal typing." He asserts that this testimony
could have affected the probability of whether he was practicing law instead of acting as a mere
typist, and that therefore its exclusion was error on the part of the trial court.

"Generally, the admissibility of evidence rests within the trial court's discretion." Harvey v. State, 666
So.2d 798, 800 (Miss. 1995)(citing Baine v. State, 606 So.2d 1076, 1078 (Miss. 1992). Obviously
the testimony regarding band-aids, dying from an appendix operation, H & R Block, and income tax
preparation was irrelevant to the case. Miss. Code Ann. § 73-3-401 repeals §§ 73-3-2 through 73-3-
59, effective December 31, 1999. However, the repeal of § 73-3-55 had no bearing on Scafidel's
case, because at the time of his arrest on the charge of practicing law without a license and at the
time of trial § 73-3-55 was in full effect, and still is in effect to this day. Additionally, Ms. Harbour
testified that she was not familiar with the American Bar Association Commission on Non-Lawyer
Practice, so any testimony which she would have given about that commission would have been
irrelevant. Since paralegals and legal secretaries' work is supervised and authorized by an attorney,
the work which they perform has no correlation to or bearing on a case concerning Scafidel's
business in which he unlawfully provided legal services without a license and without any supervision
by a licensed attorney. As a result, all of this testimony by Ms. Harbour was irrelevant, and the trial
court did not abuse its discretion in refusing to allow its admission.

                                                  III.

 WHETHER THE TRIAL COURT AND THE CIRCUIT COURT JUDGES BOTH ERRED
IN FAILING TO FIND THE STATUTE UNDER WHICH MR. SCAFIDEL WAS CHARGED
AND CONVICTED CONSTITUTIONALLY OVERBROAD AND VOID FOR VAGUENESS

In his next assignment of error, Scafidel asserts that § 73-3-55, under which he was charged, is
unconstitutionally overbroad and void for vagueness. Scafidel claims that the statute forbids conduct
which is protected by the First, Fifth and Fourteenth Amendments, because the statute infringes on
his right to contract and prevents him from exercising his right to choose how he earns a living. He
further asserts that he worked merely as a legal typist and was selectively chosen for prosecution
from among the legal secretaries, paralegals, and persons who provide bills of sale who perform the
same legal typing tasks.

     Under the 'overbreadth doctrine,' a statute may be invalidated if it is fairly capable of being
     utilized to regulate, burden, or punish constitutionally-protected speech or conduct. . . .
     Particularly where conduct and not mere speech is involved, the facial overbreadth of a statute
     must be both real and substantial, judged in relation to the statute's plainly legitimate sweep, to
     justify holding it to be void on its face as violative of the First Amendment's freedom of
     expression.

Jones v. City of Meridian, 552 So.2d 820, 823 (Miss. 1989) (citing Thornhill v. Alabama, 310 U.S.
88, 97 (1940) and Broadrick v. Oklahoma, 413 U.S. 601 (1973)). Scafidel claims that § 73-3-55 is
overbroad, because it infringes on his right under the First, Fifth and Fourteenth Amendments of the
United States Constitution and Article 3, Section 14 of the Mississippi Constitution to choose how he
makes his living. However, as discussed above, Scafidel has no constitutionally protected right to
practice law without a license. Furthermore, all speech is not protected by the First Amendment. The
underlying purpose of § 73-3-55 is to prevent persons like Scafidel from endangering the public and
negligently causing them injury by practicing law without a license. This is a compelling
governmental interest, and the application of the statute does not overly burden any otherwise
unconstitutionally protected speech or conduct. The language of the statute therefore is not
unconstitutionally overbroad.

In Meeks v. Tallahatchie County, 513 So.2d 563 (Miss. 1987), this Court applied the test for
determining whether a statute is unconstitutionally vague as set out in Connally v. General
Construction Co., 269 U.S. 385 (1926). "[A] statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of due process." Meeks, 513 So.2d at 566
(quoting Connally, 269 U.S. at 391).

     Generally speaking, a criminal statute is unconstitutional under the due process clause of the
     Fourteenth Amendment if it is so vague and uncertain that it does not inform those subject to it
     what acts it is their duty to avoid, or what conduct on their part will render them liable to its
     penalties. . . . 'The test is whether the language conveys sufficiently definite warning as to the
     proscribed conduct when measured by common understanding and practices.'

Cassibry v. State, 404 So.2d 1360, 1367-68 (Miss. 1981) (quoting Jordan v. DeGeorge, 341 U.S.
223, 231 (1951)). See also Reining v. State, 606 So. 2d 1098, 1103 (Miss. 1992). Furthermore,
statutes regulating business activities and limiting a narrow category of acts are given "greater
leeway" in determining the issue of vagueness. Gardner v. State, 531 So.2d 805, 809 (Miss. 1988)
(citing Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972)).

§ 73-3-55 reads in pertinent part as follows:

     It shall be unlawful for any person to engage in the practice of law in this state who has not
     been licensed according to law. Any person violating the provisions of this section shall be
     deemed guilty of a misdemeanor, and, upon conviction, shall be punished in accordance with
     the provisions of section 97-23-43. Any person who shall for fee or reward or promise, directly
     or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or
     proceeding pending, or to be instituted in any court in this state, or give any counsel or advice
     therein, or who shall write or dictate any bill of sale, deed of conveyance, deed of trust,
     mortgage, contract, or last will and testament, or shall make or certify to any abstract of title or
     real estate other than his own or in which he may own an interest, shall be held to be engaged in
     the practice of law. . . .

Common understanding and practice dictate that this statute does not prevent paralegals and legal
secretaries from typing documents under the supervision of a licensed attorney. Scafidel's attempt to
align himself with these legal employees fails, because unlike paralegals or legal secretaries, Scafidel
worked without attorney supervision and made decisions about how to fill out the bankruptcy forms;
he did not merely type the information on the forms as he argues. A person of common intelligence
would understand this key difference and could have fair notice by reading § 73-3-55 of what
conduct it prohibits. It cannot be said that the statute is unconstitutionally vague under the standards
adopted by this Court, so this assignment of error fails.

                                                  IV.

   WHETHER THE CIRCUIT COURT JUDGE ERRED IN IMPOSING A MONTHLY
OBLIGATION OF PAYMENT OF MONIES TO THE CIRCUIT COURT CLERK OF PIKE
COUNTY, MISSISSIPPI TO HELP DEFRAY COURT COSTS AND COURT APPOINTED
 FEES FOR HIS APPEAL TO THE SUPREME COURT WHEN MR. SCAFIDEL SIGNED
AN AFFIDAVIT OF INDIGENCY AND COULD NO LONGER PURSUE THE CAREER IN
               WHICH HE WAS ENGAGED AT TIME OF TRIAL.
Scafidel's final assignment of error alleges that the circuit court judge erred by requiring Scafidel to
contribute the greater of $250.00 per month or one-half of his monthly income toward his attorney
and court costs. Scafidel further claims that this assessment of costs is premature, citing Rule 36 of
the Mississippi Rules of Appellate Procedure. However, Rule 6 of the Mississippi Rules of Appellate
Procedure and Miss. Code Ann. § 99-35-105 require the county in which an indigent was convicted
of a crime to prepay costs of appeal to this Court once the criminal defendant has filed an affidavit
showing his inability to pay. In this case, Scafidel filed such an affidavit with his motion to proceed in
forma pauperis. The circuit court judge conducted a hearing on the motion and determined that
Scafidel would be allowed to proceed in forma pauperis. The court further determined that Scafidel's
admitted monthly income was approximately $500.00, so the court ordered Scafidel to make the
$250.00 monthly payments to help defray his attorney and court costs. Although it is within the
discretion of the trial court to assess costs of appeal, no case law, statute, or procedural rule allows a
trial court to require a criminal defendant proceeding in forma pauperis to make such
disproportionate payments toward his court costs. It is an abuse of discretion for the circuit court to
require Scafidel to pay one-half of his income toward the costs of his appeal once he granted
Scafidel's motion to proceed in forma pauperis.

                                            CONCLUSION

The circuit court committed no error in failing to make findings on the record of Scafidel's waiver of
right to counsel, because that right did not attach in this case. The court also exercised proper
discretion in its rulings on admission of evidence and in refusing to find § 73-3-55 unconstitutional.
For these reasons, we affirm the judgment and sentence of the trial court requiring Scafidel to serve a
one year suspended sentence with two years probation and weekend public service. However, the
circuit court abused its discretion in requiring Scafidel to pay one-half of his monthly income toward
payment of his attorney fees and court costs after finding him to be an indigent. That part of the
circuit court's order of October 27, 1993 which required Scafidel to make monthly payments is
reversed and judgment is rendered here for Scafidel.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PRATHER, P.J., BANKS, McRAE, SMITH AND MILLS, JJ., CONCUR. ROBERTS, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION
JOINED BY LEE, C.J., AND PITTMAN, J.


     ROBERTS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

I agree with the majority in all respects except for a portion of issue IV concerning the circuit court
judge's requirement that Scafidel contribute the greater of $250 per month or one-half of his monthly
income.

It seems to me that the circuit judge had the right intent but reached the wrong result.

Rather than rendering on this issue, I would either (1) remand for a hearing as to a proper and
reasonable amount for Scafidel to pay toward attorney and court costs or (2) alternatively and
preferably, I would simply require Scafidel to pay $50 per month based upon his record income.
This ten (10%) per centum assessment is fair, does not permit him to avoid payment of costs for an
act he knowingly and intentionally committed, and will remind him and the public of the
consequences of his act.

Scafidel may voluntarily pay a greater figure if he chooses and the State is free to petition for a
hearing on the issue when and if it possesses the proof that Scafidel is able to pay more.

Figuratively speaking, Scafidel worked diligently to stand in this line and, as he approaches the pay
window with some money in his pocket, he should pay something, and he can pay $50.

Perhaps it will assist him in remembering how he got where he is.

LEE, C.J., AND PITTMAN, J., JOIN THIS OPINION.
