Project of the Criminal Justice Clinic
Washington University School of Law
St. Louis, Missouri
November, 2012
The following document is a collection of indigency guidelines and statutes utilized by state
courts and state public defender offices to determine client eligibility. The law students who
contributed to the project are: Connor Cobean, Kaylee Davis-Maddy, Lucas Guard, Joseph
Mitchell, Marissa Ulman, Kevin Webb, Joel Wessol, and Jade von Wiegen. Faculty member is
Professor Peter Joy.
ALABAMA
Alabama Code of Criminal Procedure - Section 15-12-5
Determination of indigency and provision of defense services.
(a) Judicial role in determining indigency. The trial judge shall determine, in accordance with the
policies and procedures established by the Office of Indigent Defense Services, if a person in his
or her court is an indigent defendant, any time appropriate or necessary. Upon appeal from the
trial court to the state appellate court, the trial judge who presided over the proceedings on
appeal shall determine if the appellant is an indigent defendant in accordance with the policies
and procedures established by the Office of Indigent Defense Services. If an indigency
determination is necessary in any proceeding initiated originally in a state appellate court , the
presiding judge or chief justice of the appellate court shall determine if the appellant or petitioner
is an indigent defendant.
(b) Criteria for determining indigency. In determining indigency, the judge shall recognize
ability to pay as a variable depending on the nature, extent and liquidity of assets, the disposable
net income of the defendant, the nature of the offense, the effort and skill required to gather
pertinent information and the length and complexity of the proceedings. The director may by
rules provide for additional documentation of indigency, including, but not limited to, tax
returns, asset statements, or other similar documentation as necessary.
(c) Investigation of indigency. In determining the fact of indigency a judge may require an
investigation and report by a district attorney, public defender, sheriff, probation officer, or other
officer of the court. Provided, further, that the trial judge shall, in all cases requiring a
determination of indigency, require the accused to execute an affidavit of substantial hardship on
a form approved by the director. The completed affidavit of substantial hardship and the
subsequent order of the court either denying or granting indigent defense services to the indigent
defendant shall become a part of the official court record in the case.
(d) Provision of defense services. The judge making a determination of indigency shall provide
indigent defense services for the indigent defendant through an indigent defense system provided
for the circuit; however, if no indigent defense system exists, then the judge may provide
indigent defense services otherwise in accordance with Act 2011-678. To the extent possible,
judges shall provide continuity in legal representation.
(Acts 1975, No. 1205, p. 2384, §9-102; Acts 1981, No. 81-717, p. 1204, §1; Act 2011-678, §6.)
ALASKA
Rule 39.1. Determining Eligibility for Court-Appointed Counsel.
(a) Scope of Application. This rule specifies the procedure courts shall follow to assess whether
a defendant is eligible for court-appointed counsel in a criminal case.
(b) Eligibility for Appointment.1
(1) Standard. A defendant is eligible for court-appointed counsel if the court finds that the total
financial resources available to the defendant are not sufficient to pay allowable household
expenses and the likely cost of private representation through trial.
(2) Exception. The court may determine that a defendant is ineligible for court-appointed counsel
under AS 18.85.170(4) if the defendant has disposed of assets in order to qualify for appointed
counsel.
(c) Financial Resources Defined.
(1) Resources to be Considered. In assessing the defendant's ability to pay the likely cost of
private representation through trial, the court shall consider all resources available to the
defendant, including all sources of expected income, cash, the value of assets readily convertible
to cash, and credit or borrowing ability.
(2) Parents' Resources. If the defendant is a minor or an adult who cannot live independently, the
court shall consider the resources of both the defendant and the defendant's parents, unless the
parents were victims of the alleged offense or the court finds other good cause to treat their
resources as being unavailable to the defendant.
(3) Income. Income includes all categories of income listed in Section II, Parts A and B of the
Commentary to Civil Rule 90.3, including permanent fund dividends.
(4) Cash. Cash includes cash on hand and accounts in financial institutions. All savings should
be considered, except where the use of the savings would deprive the defendant or the
defendant's family of food, clothing, shelter, or necessary medical care.
(5) Assets. The court shall consider the value of all assets that are readily convertible to cash,
other than health aids, clothing, and ordinary household furnishings. With the following
exceptions, in valuing an asset, the court shall consider either the amount the defendant would
realize if the asset were sold or the amount the defendant could borrow using the asset as
collateral, whichever is greater.
(A) The court shall consider the loan value of tools and equipment essential to employment or to
subsistence activity. Tools and equipment are essential only if the defendant could not earn a
living or provide basic necessities without them. If the defendant cannot borrow against these
assets while continuing to have use of them, the court shall disregard their value in calculating
the defendant's available resources.
(B) In valuing the defendant's principal residence, the court shall consider the entire loan value or
the amount of the sale value that exceeds the homestead exemption allowed under the Alaska
Exemptions Act.2 If the defendant cannot borrow against the residence and would realize less
than the homestead exemption amount if the residence were sold, the court shall disregard the
value of the residence in calculating the defendant's available resources.
(C) In assessing the loan value of essential tools and equipment and the principal residence, the
court shall consider only the amount the defendant can realistically afford to repay.
(6) Credit. Available credit includes amounts available on credit cards and amounts that can be
borrowed against life insurance policies or from pension or savings plans. In assessing available
credit, the court shall consider only the amount the defendant can realistically afford to repay.
(d) Likely Cost of Private Representation.
(1) For purposes of this rule, the following amounts represent the likely cost of private
representation through trial:
Estimated Total Cost of
Representation
Misdemeanor
$ 2,000
C Felony
5,000
B Felony
7,500
A or Unclassified Felony
20,000
(2) The court may adjust these amounts under the following circumstances:
(A) If the court finds that the scheduled amount differs from the amount charged by local
attorneys, the court may use the amount charged locally.
(B) If the court finds that no local attorneys are available to handle the case, the court may adjust
the scheduled amount to include the additional fees and travel costs that an out-of-town attorney
would charge.
(C) If the court finds that the case has special characteristics that are likely to increase the cost of
private representation, such as the need for expert witnesses, special investigations, or expensive
tests, the court may adjust the scheduled amount to include this additional expense.
(3) In assessing a defendant's ability to pay the likely cost of private representation, the court
should assume that at least 50 percent of the likely fee must be paid immediately and that the
total fee must be paid within four months.
(e) Determining Eligibility. The court or its designee shall determine whether a defendant is
eligible for court-appointed counsel by placing the defendant under oath and asking about the
defendant's financial status, or by requiring the defendant to complete a signed sworn financial
statement.
A defendant who requests appointed counsel must execute a general waiver authorizing the
release of financial information to the court as required by AS 18.85.120.
(f) Presumptive Eligibility. The court may appoint counsel without further inquiry if:
(1) the defendant currently receives public assistance benefits through a state or federal program
for indigent persons, such as Aid to Families with Dependent Children, the Alaska Temporary
Assistance Program, Adult Public Assistance, General Relief, Food Stamps, Medicaid, or
Supplemental Security Income (SSI);
(2) counsel was appointed for the defendant within the past twelve months based on an
examination of the defendant's financial circumstances, and the defendant's financial condition
has not significantly improved; or
(3) the gross annual income available to the defendant is less than the adjusted federal poverty
guidelines amount for the defendant's household size, and other financial resources (cash, assets,
and credit) available to the defendant are worth less than 50 percent of the amount shown in (d)
(1) (the likely cost of private representation through trial).
(g) Other Eligibility. If the court does not find that the defendant is presumptively eligible under
paragraph (f), the court shall conduct an inquiry sufficient to determine whether the defendant is
eligible for court-appointed counsel under the standard stated in paragraph (b). The court may
make this determination based on the information then available to the court or, when
appropriate, may
(1) require the defendant to submit a completed financial resources affidavit with supporting
documentation of income;
(2) require the defendant to submit information or documentation concerning particular assets or
expenses;
(3) require the defendant to appear at a representation hearing or a pretrial services interview; or
(4) require the defendant to make reasonable efforts to retain private counsel and to report these
efforts to the court orally or in writing.
(h) Allowable Household Expenses.
(1) Allowable Expenses. The following household expenses are allowable to the extent they are
reasonable:
(A) housing;
(B) utilities;
(C) food;
(D) health care;
(E) child care;
(F) insurance;
(G) transportation (for one vehicle for each person whose income is considered);
(H) minimum loan and credit card payments; and
(I) mandatory child support and other court-imposed obligations; and
(J) other expenses that the court deems essential.
(2) Alternative to Calculating Actual Expenses. As an alternative to calculating actual household
expenses, the court may assume that these expenses are approximately equal to the adjusted
federal poverty guidelines amount for the defendant's household size.
(3) Expenses Paid by Other Persons. The expenses described in (h) (1) and (h) (2) are allowable
only to the extent they are paid (or were supposed to be paid) by the defendant. If another person,
such as a spouse, relative, or roommate, pays some or all of the household expenses, the court
shall disregard the portion of the expenses paid by that person. If the defendant is married, the
court should assume, absent a showing of good cause, that each spouse pays an amount
proportionate to that spouse's relative income.
(i) Adjusted Federal Poverty Guidelines. The "adjusted federal poverty guidelines amount" is
the federal poverty guidelines amount for Alaska increased by the geographic cost-of-living
adjustment established in AS 39.27.020 for the court location nearest the defendant's residence.
(j) Responsibilities of Administrative Director. The administrative director shall
(1) publish annually an administrative bulletin specifying the adjusted federal poverty guidelines
amount for each court location;3 and
(2) periodically review the efficacy of the appointment procedure established by this rule.
(Adopted by SCO 1351 effective May 15, 1999)
ARIZONA
Rule 6.4. Determination of indigency
a. Standard. The term “indigent” as used in these rules means a person who is not financially
able to employ counsel.
b. Questionnaire. A defendant desiring to proceed as an indigent shall complete under oath a
questionnaire concerning that defendant's financial resources, on a form approved by the
Supreme Court. The defendant shall be examined under oath regarding defendant's financial
resources by the judge, magistrate, or court commissioner responsible for determining indigency.
The defendant shall, prior to said questioning, be advised of the perjury penalties as set forth in
A.R.S. § 13 2701 et seq.
c. Reconsideration. After a determination of indigency or non-indigency has been made, if there
has been a material change in circumstances, either the defendant, the appointed attorney, or the
prosecutor may move for reconsideration of that determination.
Credits
Amended May 7, 1975, effective Aug. 1, 1975; July 28, 1993, effective Dec. 1, 1993.
Editors' Notes
COMMENT [AMENDED 2007]
Rule 6.4(a). This standard is drawn from Arizona Revised Statutes § 11-584(1).
In making a determination whether or not a defendant is indigent, the court should consider such
factors as income, source of income, property owned, outstanding obligations, number and ages
of any dependents, and other sources of family income; but it should not consider the fact that a
person has been released on bail or the ability of friends or relatives, not legally responsible for
him, to obtain services of counsel. See Model Defense of Needy Persons Act § 4(b); State v.
Vallejos, 87 Ariz. 119, 348 P.2d 554 (1960); ABA, Standards, supra, at § 6.1.
The former standard for indigency for the appointment of counsel in criminal cases was “no
means to employ counsel.” The 1956 Arizona Rules of Criminal Procedure, as amended, Rule
16(B). State v. Allen, 105 Ariz. 267, 463 P.2d 65 (1969), which created a presumption of
indigency in marginal cases.
See also A.R.S. § 13-1714 (1956); Griffin v. People of the State of Illinois, 76 S.Ct. 585, 351
U.S. 12, 100 L.Ed. 891 (1956), rehearing denied 76 S.Ct. 844, 351 U.S. 958, 100 L.Ed. 1480;
Burns v. Ohio, 79 S.Ct. 1164, 360 U.S. 252, 3 L.Ed.2d 1209 (1959).
Rule 6.4(b). See Forms 5(a) and (b).
Rule 6.4(c). The use of the term “move” incorporates the procedural requirements of Rules 35.1
and 35.5.
COMMITTEE COMMENT TO 1993 AMENDMENT
The amendment revised Rule 6.4(c) to permit limited jurisdiction judges to reconsider the
determination of indigency. The former rule provided that if “such determination was made by a
Superior Court judge” a reconsideration could be conducted.
ARKANSAS
§ 16-87-213. Certificate of indigency
(a)(1)(A) Any person charged with an offense punishable by imprisonment who desires to be
represented by an appointed attorney shall file with the court in which the person is charged a
written certificate of indigency.
(B) The certificate of indigency shall be in a form approved by the Arkansas Public Defender
Commission and shall be provided by the court in which the person is charged.
(C) The certificate of indigency shall be executed under oath by the person and shall state in bold
print that a false statement is punishable as a Class D felony.
(D) Upon execution, the certificate of indigency shall be made a permanent part of the indigent
person's records.
(2)(A)(i) If the court in which the person is charged determines that the person qualifies for the
appointment of an attorney under standards set by the commission, the court, except as otherwise
provided by this subchapter, shall appoint the trial public defender to represent the person before
the court.
(ii) The court shall not appoint counsel prior to review of the submitted affidavit.
(B)(i)(a) At the time of appointment of counsel, the court shall assess a fee of not less than ten
dollars ($10.00) nor more than one hundred dollars ($100) to be paid to the commission in order
to defray the costs of the public defender system.
(b) The fee may be waived if the court finds such an assessment to be too burdensome.
(ii)(a) All the user fees shall be collected by the county or city official, agency, or department
designated under § 16-13-709 as primarily responsible for the collection of fines assessed in the
circuit courts and district courts of this state who shall remit to the commission by the tenth day
of each month all of the fees collected on forms provided by the commission.
(b) The commission shall deposit the money collected into a separate account within the State
Central Services Fund entitled “Public Defender User Fees”.
(3) The appointing court may at any time review and redetermine whether a person is an indigent
person who qualifies for the appointment of an attorney pursuant to this subchapter.
(b)(1) The State of Arkansas or a county, or both, may file a civil action for recovery of money
expended in the representation of a person who is determined by a court not to have been
indigent at the time expenditures were made.
(2) Suit shall be brought within three (3) years after the date a certificate of indigency is filed.
(c) Nothing in this section shall be construed to bar a prosecution for perjury or other offenses
based on misrepresentation of financial status.
California
West's Ann.Cal.Gov.Code § 27707
West's Annotated California Codes Currentness
Government Code (Refs & Annos)
Title 3. Government of Counties (Refs & Annos)
Division 2. Officers (Refs & Annos)
Part 3. Other Officers (Refs & Annos)
Chapter 13. Public Defender (Refs & Annos)
§ 27707. Determination of financial ability
The court in which the proceeding is pending may make the final determination in each case as
to whether a defendant or person described in Section 27706 is financially able to employ
counsel and qualifies for the services of the public defender. The public defender shall, however,
render legal services as provided in subdivisions (a), (b) and (c) of Section 27706 for any person
the public defender determines is not financially able to employ counsel until such time as a
contrary determination is made by the court. If a contrary determination is made, the public
defender thereafter may not render services for such person except in a proceeding to review the
determination of that issue or in an unrelated proceeding. In order to assist the court or public
defender in making the determination, the court or the public defender may require a defendant
or person requesting services of the public defender to file a financial statement under penalty of
perjury. The financial statement shall be confidential and privileged and shall not be admissible
as evidence in any criminal proceeding except the prosecution of an alleged offense of perjury
based upon false material contained in the financial statement. The financial statement shall be
made available to the prosecution only for purposes of investigation of an alleged offense of
perjury based upon false material contained in the financial statement at the conclusion of the
proceedings for which such financial statement was required to be submitted. The financial
statement shall not be confidential and privileged in a proceeding under Section 987.8 of the
Penal Code.
CREDIT(S)
(Added by Stats.1969, c. 957, p. 1904, § 1. Amended by Stats.1980, c. 1021, p. 3273, § 1.)
HISTORICAL AND STATUTORY NOTES
2008 Main Volume
The 1980 amendment inserted the fifth, sixth and seventh sentences.
Former Notes
Former § 27707, added by Stats.1947, c. 424, p. 1176, § 1, derived from Stats.1921, c. 245, p.
355, § 5, amended by Stats.1931, c. 1209, p. 2567, § 3, relating to the duties of public
defenders in counties of 10th to 58th classes, was repealed by Stats.1949, c. 1288, p. 2273, § 6.
LAW REVIEW AND JOURNAL COMMENTARIES
OC's PD's feeling the squeeze--The right to counsel: In light of budget cuts, can the Orange
County Office of the Public Defender provide effective assistance of counsel? Sonia Y. Lee, 29
Loy. L.A. L. Rev. 1895 (1996).
LIBRARY REFERENCES
2008 Main Volume
Costs
308.
Criminal Law
641.11.
Westlaw Topic Nos. 102, 110.
C.J.S. Criminal Law §§ 277, 300, 317.
RESEARCH REFERENCES
ALR Library
155 ALR 145, Habeas Corpus on Ground of Unlawful Treatment of Prisoner Lawfully in Custody.
Encyclopedias
Cal. Jur. 3d Criminal Law: Rights of the Accused § 113, Indigency Determination.
CA Jur. 3d Public Defender § 14, Determination of Indigency.
Treatises and Practice Aids
2 Witkin Cal. Crim. L. 3d Crimes Against Gov't Auth. § 63, (S 63) Oath Required or Authorized.
5 Witkin Cal. Crim. L. 3d Criminal Trial § 170, in General.
5 Witkin Cal. Crim. L. 3d Criminal Trial § 172, Determination of Indigency.
2 Witkin Cal. Evid. 4th Witnesses § 114, Statement of Indigency to Public Defender.
2 Witkin Cal. Evid. 4th Witnesses § 529, Miscellaneous Statutes.
NOTES OF DECISIONS
Constitutional rights 2
Construction and application 1
Discretion 4
Jurisdiction 3
Misconduct 6
Oath or declaration 5
Review 7
1. Construction and application
Indigence is qualification required for representation by public defender although standard is
necessarily flexible and question of indigency must be approached and solved realistically. People
v. Ferry (App. 3 Dist. 1965) 47 Cal.Rptr. 324, 237 Cal.App.2d 880. Criminal Law
1840
2. Constitutional rights
Appointment of public defender without prior determination of indigence did not violate any
constitutional rights of defendant. People v. Johnson (App. 4 Dist. 1970) 85 Cal.Rptr. 485, 5
Cal.App.3d 851. Criminal Law
1840
3. Jurisdiction
Where conservator's first account filed 11 days prior to appointment of public defender showed
that conservatee had some $17,849.96 cash on hand and it was thus clear from record that
conservator was financially able to employ private counsel, court exceeded jurisdiction in
appointing public defender to represent conservatee. Brown v. San Francisco Superior Court
(App. 1 Dist. 1981) 173 Cal.Rptr. 803, 119 Cal.App.3d 189. Mental Health
133
4. Discretion
Since court could not challenge public defender's decision that a person was entitled to be
represented by him, district attorney, prison officials and law enforcement agencies on similar
logic did not possess discretion conferred independently by provision of this section upon public
defender to determine who should receive his services; moreover, police or correctional officials
are not by law arbiters of conduct of public defender. In re Brindle (App. 5 Dist. 1979) 154
Cal.Rptr. 563, 91 Cal.App.3d 660. Criminal Law
1840; Prisons
262
5. Oath or declaration
Defendant who made declaration of indigency under penalty of perjury using form prepared by
magistrate, acting under statutes which require magistrate to conduct an inquiry into defendant's
financial condition, but which do not require or authorize inquiry under oath or declaration, was
not guilty of perjury as essential element of an oath or declaration permitted by law was absent.
People v. Barajas (App. 3 Dist. 1969) 78 Cal.Rptr. 647, 273 Cal.App.2d 750. Perjury
10
6. Misconduct
Appointment of two attorneys who are friends and political supporters to represent defendants in
criminal cases without determining that the defendants are indigent or that public defender is
unable to represent them constitutes wilful misconduct. Spruance v. Commission on Judicial
Qualifications (1975) 119 Cal.Rptr. 841, 13 Cal.3d 778, 532 P.2d 1209. Judges
11(4)
7. Review
There was substantial evidence that private attorney would have been willing to represent
defendant in his then economic circumstances where trial court referred to latest financial
disclosure of defendant, defendant had been employed full time from which average monthly
gross income was approximately $2,100, defendant was sole owner of 1975 automobile and
defendant could post bond, notwithstanding defendant's argument that his monthly obligations
were such that he had very little disposable income to retain private counsel. People v. Longwith
(App. 3 Dist. 1981) 178 Cal.Rptr. 136, 125 Cal.App.3d 400. Criminal Law
1840
If trial court wishes to review defendant's eligibility for public legal services, it must do so at
earliest opportunity, in almost all instances before or during first court appearance of counsel;
once court has permitted defendant to proceed with representation by public defender or has
formally appointed counsel, court's sole remedy for enforcing financially able defendant's burden
of paying cost of counsel will be hearing into matter at conclusion of criminal proceeding. Roswall
v. Municipal Court of Northern Solano Judicial Dist. (App. 1 Dist. 1979) 152 Cal.Rptr. 337, 89
Cal.App.3d 467. Criminal Law
1858
Once court has made its determination that defendant is financially eligible for legal assistance at
public expense and has appointed counsel to represent him, it may not thereafter, without
defendant's consent, remove that attorney on grounds of financial ineligibility. Roswall v.
Municipal Court of Northern Solano Judicial Dist. (App. 1 Dist. 1979) 152 Cal.Rptr. 337, 89
Cal.App.3d 467. Criminal Law
1858
Public defender's determination that a person applying for his services is “not financially able to
employ counsel” is not subject to review by trial court even if public defender's services are
sought for a collateral attack on a final judgment rather than a defense to a pending charge.
Ingram v. Justice Court for Lake Valley Judicial Dist. of El Dorado County (1968) 73 Cal.Rptr.
410, 69 Cal.2d 832, 447 P.2d 650. Criminal Law
1770
West's Ann. Cal. Gov. Code § 27707, CA GOVT § 27707
Current with urgency legislation through Ch. 876 of 2012 Reg.Sess. and all propositions on 2012
ballots.
(C) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
CALIFORNIA
§ 987.8. Lien on real estate; ability of defendant to pay cost of legal assistance; determination;
notice; order; defendant's rights; enforcement; definitions; petition to vacate or modify
(a) Upon a finding by the court that a defendant is entitled to counsel but is unable to employ
counsel, the court may hold a hearing or, in its discretion, order the defendant to appear before a
county officer designated by the court, to determine whether the defendant owns or has an interest in
any real property or other assets subject to attachment and not otherwise exempt by law. The court
may impose a lien on any real property owned by the defendant, or in which the defendant has an
interest to the extent permitted by law. The lien shall contain a legal description of the property, shall
be recorded with the county recorder in the county or counties in which the property is located, and
shall have priority over subsequently recorded liens or encumbrances. The county shall have the right
to enforce its lien for the payment of providing legal assistance to an indigent defendant in the same
manner as other lienholders by way of attachment, except that a county shall not enforce its lien on a
defendant's principal place of residence pursuant to a writ of execution. No lien shall be effective as
against a bona fide purchaser without notice of the lien.
(b) In any case in which a defendant is provided legal assistance, either through the public defender
or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial
court, or upon the withdrawal of the public defender or appointed private counsel, the court may,
after notice and a hearing, make a determination of the present ability of the defendant to pay all or a
portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within
six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the
defendant to appear before a county officer designated by the court to make an inquiry into the ability
of the defendant to pay all or a portion of the legal assistance provided.
(c) In any case in which the defendant hires counsel replacing a publicly provided attorney; in which
the public defender or appointed counsel was required by the court to proceed with the case after a
determination by the public defender that the defendant is not indigent; or, in which the defendant, at
the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a
portion of the cost of the legal assistance provided to him or her, by monthly installments or
otherwise; the court shall make a determination of the defendant's ability to pay as provided in
subdivision (b), and may, in its discretion, make other orders as provided in that subdivision.
This subdivision shall be operative in a county only upon the adoption of a resolution by the board of
supervisors to that effect.
(d) If the defendant, after having been ordered to appear before a county officer, has been given
proper notice and fails to appear before a county officer within 20 working days, the county officer
shall recommend to the court that the full cost of the legal assistance shall be ordered to be paid by
the defendant. The notice to the defendant shall contain all of the following:
(1) A statement of the cost of the legal assistance provided to the defendant as determined by the
court.
(2) The defendant's procedural rights under this section.
(3) The time limit within which the defendant's response is required.
(4) A warning that if the defendant fails to appear before the designated officer, the officer will
recommend that the court order the defendant to pay the full cost of the legal assistance provided to
him or her.
(e) At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following
rights:
(1) The right to be heard in person.
(2) The right to present witnesses and other documentary evidence.
(3) The right to confront and cross-examine adverse witnesses.
(4) The right to have the evidence against him or her disclosed to him or her.
(5) The right to a written statement of the findings of the court.
If the court determines that the defendant has the present ability to pay all or a part of the cost, the
court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in
the manner in which the court believes reasonable and compatible with the defendant's financial
ability. Failure of a defendant who is not in custody to appear after due notice is a sufficient basis for
an order directing the defendant to pay the full cost of the legal assistance determined by the court.
The order to pay all or a part of the costs may be enforced in the manner provided for enforcement of
money judgments generally but may not be enforced by contempt.
Any order entered under this subdivision is subject to relief under Section 473 of the Code of Civil
Procedure.
(f) Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the
defendant that the court may, after a hearing, make a determination of the present ability of the
defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the
court determines that the defendant has the present ability, the court shall order him or her to pay all
or a part of the cost. The notice shall inform the defendant that the order shall have the
same force and effect as a judgment in a civil action and shall be subject to enforcement against the
property of the defendant in the same manner as any other money judgment.
(g) As used in this section:
(1) “Legal assistance” means legal counsel and supportive services including, but not limited to,
medical and psychiatric examinations, investigative services, expert testimony, or any other form of
services provided to assist the defendant in the preparation and presentation of the defendant's case.
(2) “Ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion
of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all
of the following:
(A) The defendant's present financial position.
(B) The defendant's reasonably discernible future financial position. In no event shall the court
consider a period of more than six months from the date of the hearing for purposes of determining
the defendant's reasonably discernible future financial position. Unless the court finds unusual
circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably
discernible future financial ability to reimburse the costs of his or her defense.
(C) The likelihood that the defendant shall be able to obtain employment within a six-month period
from the date of the hearing.
(D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse
the county for the costs of the legal assistance provided to the defendant.
(h) At any time during the pendency of the judgment rendered according to the terms of this section,
a defendant against whom a judgment has been rendered may petition the rendering court to modify
or vacate its previous judgment on the grounds of a change in circumstances with regard to the
defendant's ability to pay the judgment. The court shall advise the defendant of this right at the time
it renders the judgment.
(i) This section shall apply to all proceedings, including contempt proceedings, in which the party is
represented by a public defender or appointed counsel.
COLORADO
§ 21-1-103. Representation of indigent persons
(1) The state public defender shall represent as counsel, without charge except as provided in
subsection (3) of this section, each indigent person who is under arrest for or charged with
committing a felony if:
(a) The defendant requests it and he complies with subsection (3) of this section; or
(b) The court, on its own motion or otherwise, so orders and the defendant does not affirmatively
reject, of record, the opportunity to be represented by legal counsel in the proceeding. When
appointed by the court, the office of the state public defender shall be limited to defending the
indigent person and shall not be appointed to act as advisory counsel. The court shall not appoint a
public defender to represent a defendant if such defendant does not fall within the fiscal standards or
guidelines established by the supreme court for appointment of public defenders.
(2) Except as provided in section 16-5-501, C.R.S., the state public defender shall represent indigent
persons charged in any court with crimes which constitute misdemeanors; juveniles upon whom a
delinquency petition is filed or who are in any way restrained by court order, process, or otherwise;
persons held in any institution against their will by process or otherwise for the treatment of any
disease or disorder or confined for the protection of the public; and such persons charged with
municipal code violations as the state public defender in his or her discretion may determine, subject
to review by the court if:
(a) The indigent person or his parent or legal guardian in delinquency or other actions under article 2
of title 19, C.R.S., requests it and complies with subsection (3) of this section; or
(b) The court, on its own motion or otherwise, so orders or requests and the defendant or his or her
parent or legal guardian in delinquency or other actions under article 2 of title 19, C.R.S., does not
affirmatively reject, of record, the opportunity to be represented by legal counsel in the proceeding.
The court shall not appoint a public defender to represent the defendant, or his or her parent or legal
guardian, if such person does not fall within the fiscal standards or guidelines established by the
supreme court.
(3) The determination of indigency shall be made by the state public defender, subject to review by
the court. When a defendant or, if applicable, the defendant's parent or legal guardian requests
representation by a public defender, such person shall submit an appropriate application, the form of
which shall state that such application is signed under oath and under the penalty of perjury and that
a false statement may be prosecuted as such. A nonrefundable processing fee of twenty-five dollars
shall be paid by the applicant if the court-appointed counsel enters an appearance based upon the
application. The fee shall be assessed at the time of sentencing, or adjudication, if sentencing or
adjudication occurs, or upon other final disposition of the case; except that the court may, at
sentencing, adjudication, or other final disposition, waive the fee if
the court determines, based upon the financial information submitted by the party being represented
by the court-appointed counsel, that the person does not have the financial resources to pay the fee.
Before the court appoints a public defender based on said application, the court shall advise the
defendant or, if applicable, the defendant's parent or legal guardian that the application is signed
under oath and under the penalty of perjury. A copy of the application shall be sent to the prosecuting
attorney for review, and, upon request, the court shall hold a hearing on the issue of the eligibility for
appointment of the public defender's office. Processing fees collected pursuant to this subsection (3)
shall be transmitted to the state treasurer, who shall credit the same to the general fund.
(4) Nothing is this section shall be construed to authorize the public defender to represent or advise
any person who is physically outside the state of Colorado and who has not made a court appearance
in the pending matter in the state of Colorado.
Connecticut
http://www.ct.gov/ocpd/cwp/view.asp?a=4089&q=481170
Misdemeanor and youthful offender:
Accused without dependents
Accused with one dependent
Accused with two dependent
Accused with three dependent
Each additional dependent
Gross Annually
$16,335
$22,065
$27,795
$33,525
$5,730
Felony
Accused without dependents
Accused with one dependent
Accused with two dependent
Accused with three dependent
Each additional dependent
Gross Annually
$21,780
$29,420
$37,060
$44,700
$7,640
Felony Youth offender, juvenile matters, child protection
Single Parent Household and Juvenile
Dual Parent Household and Juvenile
Each Additional Parental Dependent
Gross Annually
$29,420
$37,060
$7,640
MITCHELL JOSEPH 9/12/2012
For Educational Use Only
§ 2-1602. Persons who may be represented; appointment of..., DC CODE § 2-1602
District of Columbia Official Code 2001 Edition
Division I. Government of District.
Title 2. Government Administration. (Refs & Annos)
Chapter 16. Public Defender Service. (Refs & Annos)
DC ST § 2-1602
Formerly cited as DC ST 1981 § 1-2702
§ 2-1602. Persons who may be represented; appointment
of private attorneys; determination of financial eligibility.
Currentness
(a)(1) The Service is authorized to represent any person in the District of Columbia who is a person described in any of the
following categories and who is financially unable to obtain adequate representation:
(A) Persons charged with an offense punishable by imprisonment for a term of 6 months, or more;
(B) Persons charged with violating a condition of probation or parole;
(C) Persons subject to proceedings pursuant to Chapter 5 of Title 21 (Hospitalization of the Mentally Ill);
(D) Persons for whom civil commitment is sought pursuant to title III of the Narcotic Addict Rehabilitation Act of 1966
(42 U.S.C. § 3411 et seq.) or the provisions of Chapter 7, of Title 24;
(E) Juveniles alleged to be delinquent or in need of supervision;
(F) Persons subject to proceedings pursuant to § 24-607 (relating to commitment of chronic alcoholics by court order for
treatment);
(G) Persons subject to proceedings pursuant to § 24-501 (relating to confinement of persons acquitted on the ground of
insanity); or
(H) Persons incarcerated in District of Columbia corrections facilities, not including community residential facilities
or community-based corrections facilities, in administrative matters related to their incarceration before any court or
administrative body.
(2) The Service shall not represent an inmate in a suit for damages against the District of Columbia or its employees for
conduct within the scope of their employment, nor shall it represent an inmate in a suit in which the payment of attorney's
fees or costs is sought against the District of Columbia or its employees for conduct within the scope of their employment.
Representation may be furnished at any stage of a proceeding, including appellate, ancillary, and collateral proceedings. Not
more than 60 per centum of the persons who are annually determined to be financially unable to obtain adequate representation
and who are persons described in the above categories may be represented by the Service, but the Service may furnish
technical and other assistance to private attorneys appointed to represent persons described in the above categories. The
Service shall determine the best practicable allocation of its staff personnel to the courts where it furnishes representation.
(b) The Service shall establish and coordinate the operation of an effective and adequate system for appointment of private
attorneys to represent persons described in subsection (a) of this section, but the courts shall have final authority to make such
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
1
MITCHELL JOSEPH 9/12/2012
For Educational Use Only
§ 2-1602. Persons who may be represented; appointment of..., DC CODE § 2-1602
appointments. The Service shall report to the courts at least quarterly on matters relating to the operation of the appointment
system and shall consult with the courts on the need for modifications and improvements.
(c) Upon approval of its Board of Trustees, the Service may perform such other functions as are necessary and appropriate to
the duties described above.
(d) The determination whether a person is financially unable to obtain adequate representation shall be based on information
provided by the person to be represented and such other persons or agencies as the court in its discretion shall require. Whoever
in providing this information knowingly falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or
makes any false, fictitious, or fraudulent statement or representation, or makes or uses any false writing or document knowing
the same to contain any false, fictitious, or fraudulent statement or entry shall be fined not more than $1,000, or imprisoned
not more than 1 year, or both.
Credits
(July 29, 1970, 84 Stat. 654, Pub. L. 91-358, title III, § 302; Dec. 10, 1987, D.C. Law 7-52, § 2(a), (b), 34 DCR 6891.)
Notes of Decisions (6)
Copyright (C) 2012 By the District of Columbia. All Rights Reserved.
DC CODE § 2-1602
Current through July 8, 2012.
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
Delaware
http://www.lscd.com/faqs#Eligibility
What are the eligibility requirements for legal services programs in Delaware?
Generally, potential clients must have income below 125% of the current official Federal Poverty
Guideline. Additional income requirements vary among programs. Also, there may be exceptions
to the income limit. The best way to find out if you are eligible for services is to call or visit your
local legal services office and complete an application for services.
~~~~~
The public defender’s office did not put that information online. We would need to call during a
work day to figure this out.
Florida
Federal Poverty Guidelines
Size of
Family Unit
Federal Poverty
Guidelines
Florida Income Guidelines For
Public Defender Services 2012
(200% of federal poverty guidelines)
1
$11,170
$22,340
2
$15,130
$30,260
3
$19,090
$38,180
4
$23,050
$46,100
5
$27,010
$54,020
6
$30,970
$61,940
7
$34,930
$69,860
8
$38,890
$77,780
http://www.pdmiami.com/federal_poverty_guidelines.htm
Georgia
(A) A person charged with a misdemeanor, violation of probation, or a municipal or county
offense punishable by imprisonment who earns less than 100 percent of the federal
poverty guidelines unless there is evidence that the person has other resources that might
reasonably be used to employ a lawyer without undue hardship on the person or his or her
dependents;
(B) A juvenile charged with a delinquent act or a violation of probation punishable by
detention whose parents earn less than 125 percent of the federal poverty guidelines
unless there is evidence that the juvenile or his or her parents have other resources that
might reasonably be used to employ a lawyer without undue hardship on the juvenile, his
or her parents, or the parent's dependents; and
(C) A person charged with a felony who earns or, in the case of a juvenile, whose parents
earn, less than 150 percent of the federal poverty guidelines unless there is evidence that
the person has other resources that might reasonably be used to employ a lawyer without
undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or
her parents or the parent's dependents.
http://statutes.laws.com/georgia/title-17/chapter-12/article-1/17-12-2
Hawaii
In determining whether a person qualifies for public defender representation, the Office of the
Public Defender follows the provisions of HRS § 802-4 and the guidelines pronounced by the
Hawai`i Supreme Court in State v. Mickle, 56 Haw. 23, 525 P.2d 1108 (1974).
HRS § 802-4 provides that "... the determination of indigency ... shall be based upon an
appropriate inquiry into the financial circumstances of the person seeking legal representation
and an affidavit or a certificate signed by such person demonstrating the person's financial
inability to obtain legal counsel."
Unless otherwise ordered by the court, the Office of the Public Defender makes the initial
determination of indigency, based upon an appropriate inquiry into the financial circumstances
of the person seeking public defender representation and an affidavit or declaration signed by
such person demonstrating his or her financial inability to obtain legal counsel. See HRS § 8024. Public defender services will be provided to such persons subject to review by the court. A
person waives the right to counsel by refusing to furnish any information pertinent to the
determination of indigency.
http://hawaii.gov/budget/pd/qualification-for-public-defender-service
Information not found online. Need more research. I can call if you would like.
Idaho
Information not found online. Each county was divided up and none had this listed on their websites.
According to the National Legal Aid and Defender’s Association’s 2010 report entitled Advocacy &
Due Process in Idaho’s Trial Courts: Evaluation of trial-level indigent defense systems in
Idaho, they do not currently have a set standard and do not use the federal poverty guidelines.
Are there resources available if I cannot afford a lawyer? How can I learn about Legal Aid?
Yes, there are resources for individuals who cannot afford an attorney. If you have been charged with
a crime, you may be eligible for a public defender. To determine whether you are eligible for a public
defender contact the Court in which you have been charged with a crime.
http://isb.idaho.gov/ilf/legal_questions.html
ILLINOIS
Court makes determination of indecency based on affidavit.
§ 113-3.
(a) Every person charged with an offense shall be allowed counsel before pleading to the charge.
If the defendant desires counsel and has been unable to obtain same before arraignment the court
shall recess court or continue the cause for a reasonable time to permit defendant to obtain
counsel and consult with him before pleading to the charge. If the accused is a dissolved
corporation, and is not represented by counsel, the court may, in the interest of justice, appoint as
counsel a licensed attorney of this State.
(b) In all cases, except where the penalty is a fine only, if the court determines that the
defendant is indigent and desires counsel, the Public Defender shall be appointed as
counsel. If there is no Public Defender in the county or if the defendant requests counsel other
than the Public Defender and the court finds that the rights of the defendant will be prejudiced by
the appointment of the Public Defender, the court shall appoint as counsel a licensed attorney at
law of this State, except that in a county having a population of 2,000,000 or more the Public
Defender shall be appointed as counsel in all misdemeanor cases where the defendant is indigent
and desires counsel unless the case involves multiple defendants, in which case the court may
appoint counsel other than the Public Defender for the additional defendants. The court shall
require an affidavit signed by any defendant who requests court-appointed counsel. Such
affidavit shall be in the form established by the Supreme Court containing sufficient
information to ascertain the assets and liabilities of that defendant. The Court may direct the
Clerk of the Circuit Court to assist the defendant in the completion of the affidavit. Any person
who knowingly files such affidavit containing false information concerning his assets and
liabilities shall be liable to the county where the case, in which such false affidavit is filed, is
pending for the reasonable value of the services rendered by the public defender or other courtappointed counsel in the case to the extent that such services were unjustly or falsely procured.
(c) Upon the filing with the court of a verified statement of services rendered the court shall
order the county treasurer of the county of trial to pay counsel other than the Public Defender a
reasonable fee. The court shall consider all relevant circumstances, including but not limited to
the time spent while court is in session, other time spent in representing the defendant, and
expenses reasonably incurred by counsel. In counties with a population greater than 2,000,000,
the court shall order the county treasurer of the county of trial to pay counsel other than the
Public Defender a reasonable fee stated in the order and based upon a rate of compensation of
not more than $40 for each hour spent while court is in session and not more than $30 for each
hour otherwise spent representing a defendant, and such compensation shall not exceed $150 for
each defendant represented in misdemeanor cases and $1250 in felony cases, in addition to
expenses reasonably incurred as hereinafter in this Section provided, except that, in extraordinary
circumstances, payment in excess of the limits herein stated may be made if the trial court
certifies that such payment is necessary to provide fair compensation for protracted
representation. A trial court may entertain the filing of this verified statement before the
termination of the cause, and may order the provisional payment of sums during the pendency of
the cause.
Rule 298. Application to Sue or Defend as an Indigent Person
(a) Contents. An application for leave to sue or defend as an indigent person shall be in writing
and supported by the affidavit of the applicant or, if the applicant is a minor or an incompetent
adult, by the affidavit of another person having knowledge of the facts, stating:
(1) whether the applicant is receiving assistance under one or more of the following public
benefits programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled
(AABD), Temporary Assistance for Needy Families (TANF), Food Stamps, General Assistance,
State Transitional Assistance, or State Children and Family Assistance;
(2) whether the applicant's available income is 125% or less of the current poverty level as
established by the United States Department of Health and Human Services;
(3) the nature and value of the applicant's assets;
(4) whether the applicant is eligible to receive civil legal services as defined in section 5-105.5 of
the Code of Civil Procedure (735 ILCS 5/5-105.5);
(5) whether the applicant is unable to proceed in an action without payment of fees, costs, and
charges and the applicant's payment of those fees, costs, and charges would result in substantial
hardship to the applicant or the applicant's family;
(6) the employment status of the applicant and the applicant's spouse;
(7) the current income of the applicant and the applicant's spouse;
(8) whether the applicant is receiving or paying child support;
(9) the applicant's monthly living expenses (exclusive of payment of debts and child support);
and
(10) that the applicant, in good faith, believes that he or she has a meritorious claim or defense.
(b) Ruling. If the application is denied, the court shall enter an order to that effect stating the
specific reason for the denial. If the application is granted, the court shall enter an order
permitting the applicant to sue or defend without payment of fees, costs or charges
INDIANA
§ 33-40-3-7 Determination of ordering payment of costs
(a) If a defendant or a child alleged to be a delinquent child is receiving publicly paid
representation, the court shall consider:
(1) the person's independently held assets and assets available to the spouse of the person or the
person's parent if the person is unemancipated;
(2) the person's income;
(3) the person's liabilities; and
(4) the extent of the burden that payment of costs assessed under section 6 of this chapter would
impose on the person and the dependents of the person.
(b) If, after considering the factors described in subsection (a), the court determines that the
person is able to pay the costs of representation, the court shall enter a finding that the person is
able to pay those additional costs.
IOWA
Court makes determination pursuant to criteria in statute.
815.9. Indigency determined--penalty
<[Text subject to final changes by the Iowa Code Editor for Code 2013.]>
1. For purposes of this chapter, chapters 13B, 229A, 232, 665, 812, 814, and 822, and section
811.1A, and the rules of criminal procedure, a person is indigent if the person is entitled to an
attorney appointed by the court as follows:
a. A person is entitled to an attorney appointed by the court to represent the person if the person
has an income level at or below one hundred twenty-five percent of the United States poverty
level as defined by the most recently revised poverty income guidelines published by the United
States department of health and human services, unless the court determines that the person is
able to pay for the cost of an attorney to represent the person on the pending case. In making the
determination of a person's ability to pay for the cost of an attorney, the court shall consider not
only the person's income, but also the availability of any assets subject to execution, including
but not limited to cash, stocks, bonds, and any other property which may be applied to the
satisfaction of judgments,
and the seriousness of the charge or nature of the case.
b. A person with an income level greater than one hundred twenty-five percent, but at or below
two hundred percent, of the most recently revised poverty income guidelines published by the
United States department of health and human services shall not be entitled to an attorney
appointed by the court, unless the court makes a written finding that not appointing counsel on
the pending case would cause the person substantial hardship. In determining whether substantial
hardship would result, the court shall consider not only the person's income, but also the
availability of any assets subject to execution, including but not limited to cash, stocks, bonds,
and any other property which may be applied to the satisfaction of judgments, and the
seriousness of the charge or nature of the case.
c. A person with an income level greater than two hundred percent of the most recently revised
poverty income guidelines published by the United States department of health and human
services shall not be entitled to an attorney appointed by the court, unless the person is charged
with a felony and the court makes a written finding that not appointing counsel would cause the
person substantial hardship. In determining whether substantial hardship would result, the court
shall consider not only the person's income, but also the availability of any assets subject to
execution, including but not limited to cash, stocks, bonds, and any other property which may be
applied to the satisfaction of judgments, and the seriousness of the charge or nature of the case.
2. A determination of whether a person is entitled to an appointed attorney shall be made on the
basis of an affidavit of financial status submitted at the time of the person's initial appearance or
at such later time as a request for court appointment of counsel is made. The state public
defender shall adopt rules prescribing the form and content of the affidavit of financial status.
The affidavit of financial status shall be signed under penalty of perjury and shall contain
sufficient information to allow the determination to be made of whether the person is entitled to
an appointed attorney under this section. If the person is granted an appointed attorney, the
affidavit of financial status shall be filed and permanently retained in the person's court file.
3. If a person is granted an appointed attorney, the person shall be required to reimburse the state
for the total cost of legal assistance provided to the person pursuant to this section. “Legal
assistance” as used in this section shall include not only the expense of the public defender or an
appointed attorney, but also transcripts, witness fees, expenses, and any other goods or services
required by law to be provided to an indigent person entitled to an appointed attorney.
4. a. If the appointed attorney is a public defender, the attorney shall submit a report to the court
specifying the total hours of service plus expenses incurred in providing legal assistance to the
person. In a criminal case, the report shall be submitted within ten days of the date of sentencing,
acquittal, or dismissal. In a case other than a criminal case, the report shall be submitted within
ten days of any court ruling or the conclusion of a trial held in the case, or if the case is dismissed
within ten days of the dismissal.
b. If the appointed attorney is a private attorney or is employed by a nonprofit organization, the
state public defendershall report to the clerk of the district court the amounts of any approved
claims for compensation and expenses paid on behalf of a person receiving legal assistance after
such claims have been reviewed and paid by the state public defender.
5. If the person receiving legal assistance is convicted in a criminal case, the total costs and fees
incurred for legal assistance shall be ordered paid when the reports submitted pursuant to
subsection 4 are received by the court, and the court shall order the payment of such amounts as
restitution, to the extent to which the person is reasonably able to pay, or order the performance
of community service in lieu of such payments, in accordance with chapter 910.
6. If the person receiving legal assistance is acquitted in a criminal case or is a party in a case
other than a criminal case, the court shall order the payment of all or a portion of the total costs
and fees incurred for legal assistance, to the extent the person is reasonably able to pay, after an
inquiry which includes notice and reasonable opportunity to be heard.
7. When ordering payment of all or a portion of the total costs and fees incurred for legal
assistance under subsection 6, the court may order payment of the costs and fees in reasonable
installments as provided in section 909.3, or may order the entire amount due and payable. If any
costs and fees are not paid at the time specified in the order of the court, a judgment shall be
entered against the person for any unpaid amount. Such judgment may be enforced by the state
in the same manner as a civil judgment.
8. If a person is granted an appointed attorney or has received legal assistance in accordance with
this section and the person is employed, the person shall execute an assignment of wages. An
order for assignment of income, in a reasonable amount to be determined by the court, shall be
entered by the court. The state public defender shall prescribe forms for use in wage assignments
and court orders entered under this subsection.
9. Notwithstanding subsections 3 and 6, a minor granted a court-appointed attorney or guardian
ad litem under section 232.11 in a juvenile proceeding shall not be ordered to reimburse costs
and fees incurred for legal assistance except as otherwise provided in chapter 232.
(PD website links to the following regs)
STATE PUBLIC DEFENDER ADMINISTRATIVE RULES
CHAPTER 10
ELIGIBILITY GUIDELINES FOR COURT-APPOINTED COUNSEL
[Prior to 2/20/02, see 493—Chapter 13]
493—10.1(815) Eligibility. The eligibility of any person for legal assistance by an appointed attorney
shall be determined in accordance with Iowa Code section 815.9 and with the guidelines set forth in
these rules. Any person who is eligible for appointed counsel shall be required by the court to repay
all
or a part of the cost of the applicant’s legal assistance.
493—10.2(815) Income guidelines. Annually, the state public defender shall provide information to
the
court showing the most recently revised poverty income guidelines.
493—10.3(815) Designation of eligibility reviewer. The chief judge of each judicial district may
designate the person(s) or entity to evaluate the eligibility of a person for legal assistance by an
appointed attorney. However, the decision to appoint counsel remains with the court.
493—10.4(815) Application. Any person claiming to be entitled to legal representation by an
appointed
attorney shall have an indigency evaluation before being provided legal representation. The
applicant
should provide information on an affidavit of financial status. This form will be prescribed by the state
public defender, but any form containing substantially the same information will be accepted.
10.4(1) Affidavit. The applicant shall provide information required by the affidavit of financial status
under penalty of perjury.
10.4(2) Family. The applicant shall provide information that accurately represents the number of
family members who are supported by or live with the applicant.
10.4(3) Income. The applicant shall provide information that accurately represents the total gross
income received or reasonably anticipated to be received by the applicant.
10.4(4) Household income. The applicant shall provide information that accurately represents the
gross income of the household in which the applicant lives. The income of a spouse need not be
included
if the spouse is the alleged victim of the offense charged. The income of a child member of the
household
need not be included unless the legal representation is sought for the child in a delinquency
proceeding.
10.4(5) Assets. The applicant shall provide information that accurately represents the total assets
owned, in whole or in part, by the applicant. This includes the requirement to disclose interest in real
property and tangible and intangible personal property.
10.4(6) Liabilities. The applicant shall provide information that accurately represents the total
monthly debts and expenses for which the applicant is responsible. Child support and alimony
payments
should be included only when payments have been made in a timely manner.
10.4(7) Nature of proceedings. In a criminal case, the affidavit of financial status shall contain a
statement of the charge(s) against the defendant. In a juvenile or civil case, a statement of the
nature of
the proceedings shall be included.
10.4(8) Child applicant. If the applicant is a child, the child’s parent, guardian or custodian shall
complete the affidavit of financial status. The affidavit of financial status shall include a statement of
the
income, assets and liabilities of the person or persons having a legal obligation to support the child.
10.4(9) Additional information. The applicant shall provide such additional information as may be
required by the court to determine the applicant’s eligibility for appointed counsel. The applicant has
a
continuing duty to update information provided in the affidavit of financial status to reflect changes in
the information previously provided.
493—10.5(815) Evaluation of affidavit of financial status. In determining whether counsel should
be
appointed to represent the applicant, the court should consider the following:
10.5(1) Family size. The total size of the applicant’s household shall be used to determine eligibility
for appointed counsel.
Ch 10, p.2 State Public Defender[493] IAC 12/28/11
10.5(2) Household income. The applicant’s income, or the combined income of the applicant and
the applicant’s spouse if they are living in the same residence, shall be used in determining an
applicant’s
household income, subject to the following:
a. The income of the applicant’s spouse shall not be considered if the spouse is the alleged victim
of the offense charged.
b. The income of a child shall not be considered unless the child is requesting representation in a
delinquency case or unless the child is under a conservatorship or is the beneficiary of trust
proceeds.
c. In a juvenile proceeding, the income of both parents shall be considered in determining whether
the child is entitled to appointed counsel. If a child’s parents are divorced, the household income of
each
parent shall be considered separately.
10.5(3) DHHS poverty income guidelines. The applicant’s family size and household income shall
be compared to the DHHS poverty income guidelines to determine whether the applicant’s
household
income is 125 percent or less of the poverty level; between 125 percent and 200 percent of the
poverty
level; or 200 percent or greater of the poverty level.
10.5(4) Income 125 percent or less of the poverty level. If the applicant’s household income is
125 percent or less of the poverty level, the applicant is entitled to appointed counsel unless the
court
determines that the applicant is able to pay for the cost of an attorney to represent the applicant on
the
pending charge. In determining whether the applicant is able to pay for the cost of an attorney, the
court should consider not only the applicant’s income, but also the availability of any assets subject
to
execution and the seriousness of the charge.
10.5(5) Income between 125 percent and 200 percent of the poverty level. If the applicant’s
household income is greater than 125 percent, but less than 200 percent of the poverty level, the
applicant is not entitled to appointed counsel unless the court determines and makes a written
finding
that not appointing counsel on the pending charge would cause the applicant substantial financial
hardship. In determining whether substantial financial hardship would result, the court should
consider
not only the applicant’s income, but also the availability of any assets subject to execution and the
seriousness of the charge.
10.5(6) Income 200 percent or greater of the poverty level. If the applicant’s household income is
200 percent or greater of the poverty level, the applicant is not entitled to appointed counsel unless
the applicant is charged with a felony and the court determines and makes a written finding that not
appointing counsel on the pending charge would cause the applicant substantial financial hardship.
In
determining whether substantial financial hardship would result, the court should consider not only
the
applicant’s income, but also the availability of any assets subject to execution and the seriousness of
the
charge.
10.5(7) Applicability to juvenile cases. In evaluating whether to appoint counsel for a parent in a
juvenile proceeding, the court shall consider not only the applicant’s income, but also the availability
of any assets subject to execution and the nature of the proceeding in determining whether the
parent is
financially unable to employ counsel.
493—10.6(815) Payment procedures.
10.6(1) Payment to clerk. An applicant who has been determined eligible for appointed counsel shall
pay to the office of the clerk of the district court any sums ordered by the court. This order for
payment
may be entered during or following the pendency of the action.
10.6(2) Wage assignments. If the applicant is employed, the applicant shall execute an assignment
of the applicant’s wages. A portion of the applicant’s wages, as determined by the court, shall be
paid to
the office of the clerk of the district court for recovery of attorney fees. This assignment of wages
may
be entered during or following the pendency of the action.
493—10.7(815) Forms. The state public defender shall promulgate forms to be used in court
proceedings, including an Adult Affidavit of Financial Status, Juvenile Affidavit of Financial Status,
Wage Assignment, and such other forms as the state public defender deems appropriate. Such
forms
IAC 12/28/11 State Public Defender[493] Ch 10, p.3
shall be available at the administrative office of the state public defender and published on the state
public defender’s Web site at http://spd.iowa.gov.
[ARC 9938B, IAB 12/28/11, effective 2/1/12]
These rules are intended to implement Iowa Code section 815.9.
[Filed emergency 9/1/93—published 9/29/93, effective 9/1/93]
[Filed emergency 1/21/97—published 2/12/97, effective 1/21/97]
[Filed emergency 6/10/99—published 6/30/99, effective 7/1/99]
[Filed 10/26/99, Notice 6/30/99—published 11/17/99, effective 12/22/99]
[Filed 1/31/02, Notice 12/26/01—published 2/20/02, effective 4/1/02]
[Filed 1/13/06, Notice 10/26/05—published 2/1/06, effective 3/8/06]
[Filed ARC 9938B (Notice ARC 9817B, IAB 11/2/11), IAB 12/28/11, effective 2/1/12]
KANSAS
This is the state whose PD office directed me to the supplemental regs, which follow the statute
in this memo. Additionally the PD noted that new regs are in the pipeline.
K.S.A. 22-4504. Same; determination of indigency; partial indigency, effect; disposition of
payments for appointed counsel services; no fee for electronic access to court records
(a) When any defendant who is entitled to have the assistance of counsel, under the provisions of
K.S.A. 22-4503, and amendments thereto, claims to be financially unable to employ counsel, the
court shall require that the defendant file an affidavit containing such information and in the
form as prescribed by rules and regulations adopted by the state board of indigents' defense
services. The affidavit filed by the defendant shall become a part of the permanent file of the
case. The court may interrogate the defendant under oath concerning the contents of the affidavit
and may direct the county or district attorney, sheriff, marshal or other officer of the county to
investigate and report upon the financial condition of the defendant and may also require the
production of evidence upon the issue of the defendant's financial inability to employ counsel.
(b) Upon the basis of the defendant's affidavit, the defendant's statements under oath, and such
other competent evidence as may be brought to the attention of the court, which shall be made
part of the record in the case, the court shall determine whether the defendant is financially
unable to employ counsel. In making such determination the court shall consider the defendant's
assets and income; the amount needed for the payment of reasonable and necessary expenses
incurred, or which must be incurred to support the defendant and the defendant's immediate
family; the anticipated cost of effective representation by employed counsel; and any property
which may have been transferred or conveyed by the defendant to any person without adequate
monetary consideration after the commission of the alleged crime. If the defendant's assets and
income are not sufficient to cover the anticipated cost of effective representation by employed
counsel when the length and complexity of the anticipated proceedings are taken fully into
account, the defendant shall be determined indigent in full or in part and the court shall appoint
an attorney as provided in K.S.A. 22-4503, and amendments thereto. If the court determines that
the defendant is financially able to employ counsel, the court shall so advise the defendant and
shall give the defendant a reasonable opportunity to employ an attorney of the defendant's own
choosing. All determinations by a court as to whether a defendant is financially unable to employ
counsel shall be subject to and in accordance with rules and regulations adopted by the state
board of indigents' defense services under this act.
(c) The court shall inform the defendant for whom counsel is appointed that the amount
expended by the state in providing counsel and other defense services may be entered as a
judgment against the defendant if the defendant is convicted and found to be financially able to
pay the amount, and that an action to recover such amount may be brought against any person to
whom the defendant may have transferred or conveyed any of the defendant's property without
adequate monetary consideration after the date of the commission of the alleged crime. A
determination by the court that the defendant is financially unable to employ counsel or pay
other costs of the defendant's defense may preclude a recovery from the defendant but may not
preclude recovery from any person to whom the defendant may have transferred or conveyed any
property without adequate monetary consideration after the date of the commission of the alleged
crime.
(d) If found to be indigent in part, the defendant shall be promptly informed of the terms under
which the defendant may be expected to pay for counsel. Any payments pursuant to such terms
shall apply upon any judgment entered pursuant to K.S.A. 22-4513, and amendments thereto.
Payments made for services of appointed counsel provided under K.S.A. 22-4503, and
amendments thereto, shall be paid to the clerk of the district court. The clerk of the district court
shall remit all moneys received as payment for services of appointed counsel under this section
to the state board of indigents' defense services at least monthly and the board shall remit all
moneys received under this section to the state treasurer in accordance with the provisions of
K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state
treasurer shall deposit the entire amount in the state treasury to the credit of the state general
fund.
(e) The determination that a defendant is indigent or partially indigent shall be subject to review
at any time by any court before whom the cause is then pending.
(f) The state board of indigents' defense services shall adopt rules and regulations in accordance
with K.S.A. 77-415 et seq., and amendments thereto, relating to the income, assets and
anticipated costs of representation for the purpose of determining whether a defendant is
financially able to employ counsel and the ability of a defendant to contribute to the cost of the
defendant's legal defense services.
(g) Whenever it is determined that electronic access to court records is necessary to present a
defendant's cause adequately and it is further determined that the defendant is indigent, the court
having jurisdiction in the matter shall order that the records be supplied to the defendant, at no
charge, by the electronic access service. The state board of indigents' defense services shall be
exempt from paying user fees to access electronic court records.
KANSAS REGULATIONS: KAR 105-4-1 THROUGH 105-4-5. See especially 105-4-1 and
105-4-5.
Agency 105. Board of Indigents' Defense Services
Article 4. Entitlement to Legal Representation
105-4-1 Determination of eligibility.
(a) At the commencement of proceedings against any defendant, the defendant may apply for
legal representation at state expense by submitting, to the court, an affidavit of indigency on a
form provided by the board. The court shall determine if the defendant is indigent, based upon
consideration of the following factors, as defined in K.A.R. 105-4-2:
(1) The defendant's liquid assets;
(2) the defendant's household income;
(3) either the defendant's actual, reasonable, and necessary expenses incurred to support the
defendant's household or the most current federal poverty guidelines, as published by the U.S.
department of health and human services, for the defendant's family unit;
(4) the anticipated cost of private legal representation; and
(5) any transfer of property by the defendant without adequate monetary consideration after the
date of the alleged commission of the offense.
(b) An eligible indigent defendant shall mean a person whose combined household income and
liquid assets equal less than the most current federal poverty guidelines, as published by the U.S.
department of health and human services, for the defendant's family unit.
(c) The court may also consider any special circumstances affecting the defendant's eligibility for
legal representation at state expense.
(d) If the court determines that the defendant is financially able to employ counsel after counsel
has been appointed, the court shall require the defendant to reimburse the board in accordance
with the provisions of K.S.A. 22-4510, and amendments thereto, for all or part of the
expenditures made on the defendant's behalf.
105-4-2 Definition of terms.
Terms used to determine eligibility for indigents' defense services shall have the following
meanings:
(a) Household income. The defendant's household income shall be defined as the defendant's
income and the income of all other persons related by birth, marriage, or adoption who reside
with the defendant. Income shall include the total cash receipts before taxes from all resources,
including money, wages, and the net receipts from nonfarm or farm self-employment. Income
shall include regular payments from a governmental income maintenance program, alimony,
child support, public or private pensions, annuities, and income from dividends, interest, rents,
royalties, or periodic receits from estates or trusts.
(b) Liquid assets. The defendant's liquid assets shall be defined as cash in hand, stocks and
bonds, accounts at financial institutions, real property or homestead having a net value greater
than $50,000, a car, and any other property that can be readily converted to cash, with the
following exceptions:
(1) The defendant's clothing, household furnishings, and any personal property that is exempt
from attachment or levy of execution by K.S.A. 60-2304, and amendments thereto; and
(2) any other property, except a homestead having a net value greater than $50,000, that is
exempt from attachment or levy of execution by K.S.A. 60-2301 et seq., and amendments
thereto.
The net value of the homestead shall be the fair market value less the mortgage, other
encumbrances, and the reasonable cost of sale. The net value of any property transferred after the
date of the alleged commission of the offense shall be included in the determination of the
defendant's liquid assets.
(c) Transfer of property.
(1) If the defendant has transferred property after the alleged commission of the offense, the
court shall determine the reason for the transfer of property and whether adequate monetary
consideration was received. If adequate monetary consideration was not received, the court shall
presume that the transfer was made for the purpose of establishing eligibility unless the
defendant furnishes clear and convincing evidence that the transfer was made exclusively for
another purpose.
(2) If a transfer was made either for the purpose of establishing eligibility or without adequate
monetary consideration and the property is reconveyed to the defendant or an adjustment is made
by which the defendant receives full value, the defendant shall, if otherwise qualified, be eligible
to receive legal representation at state expense.
105-4-3 Affidavit of indigency.
A standard format for an affidavit of indigency shall include the following information:
(a) The defendant's liquid assets and household income;
(b) the defendant's household expenses;
(c) any extraordinary financial obligations of the defendant;
(d) the size of the defendant's household; and
(e) any transfer of property by the defendant after the date of the alleged commission of the
offense.
If the information provided by the defendant on the affidavit is unclear, incomplete,
contradictory, or questionable, further inquiry may be conducted by the board, the court, the
county or district attorney, or other officer assigned by the court. The affidavit of indigency
forms shall be published and distributed annually to the judicial administrator and to the
administrative judge of each district.
105-4-4 Finding of indigency.
If the court finds a defendant who is entitled to counsel to be indigent, as defined by statute and
these regulations, the court shall appoint counsel to provide legal representation. A court order
authorizing legal representation at state expense shall be made on a form approved by the board.
105-4-5 Partial indigency.
(a) The court shall find any defendant to be partially indigent if the defendant is able to pay some
part of the cost of legal representation and if the payment or payments does not impose manifest
hardship on the defendant or the defendant's household. Any defendant may be found to be
partially indigent if the defendant's combined household income and liquid assets are greater
than the defendant's reasonable and necessary living expenses but less than the sum of the
defendant's reasonable and necessary living expenses plus the anticipated cost of private legal
representation
(b) A defendant found to be partially indigent may be ordered by the court to pay, to the clerk of
the district court, a sum not more than the amount expended by the board on behalf of the
defendant.
KENTUCKY
KRS § 31.120 Determination of whether person needy; factors for determination; affidavit
of indigency
(1) The determination of whether a person covered by KRS 31.110 is a needy person shall be
deferred no later than his first appearance in court or in a suit for payment or reimbursement
under KRS 31.211, whichever occurs earlier. Thereafter, the court concerned shall determine,
with respect to each step in the proceedings, whether he is a needy person. However, nothing
herein shall prevent appointment of counsel at the earliest necessary proceeding at which the
person is entitled to counsel, upon declaration by the person that he is needy under the terms of
this chapter. In that event, the person involved
shall be required to make reimbursement for the representation involved if he later is determined
not a needy person under the terms of this chapter.
(2) In determining whether a person is a needy person and in determining the extent of his, and,
in the case of an unemancipated minor under KRS 31.100(3)(c), his custodial parent's or
guardian's inability to pay, the court concerned shall consider such
factors as:
(a) Income;
(b) Source of income;
(c) Property owned;
(d) Number of motor vehicles owned and in working condition;
(e) Other assets;
(f) Outstanding obligations;
(g) The number and ages of his or her dependents;
(h) The poverty level income guidelines compiled and published by the United States
Department of Labor;
(i) Complexity of the case;
(j) Amount a private attorney charges for similar services;
(k) Amount of time an attorney would reasonably spend on the case; and
(l) Payment of money bail, other than a property bond of another, whether deposited by the
person or another, to secure the person's release from confinement on the present charge of
which he or she stands accused or convicted; and
(m) Any other circumstances presented to the court relevant to financial status. Release on bail,
or any other method of release provided in KRS Chapter 431, shall not necessarily prevent him
from being a needy person. In each case, the person, and, if an unemancipated minor under KRS
31.100(3)(c) and (d), his custodial parent or guardian, subject to the penalties for perjury, shall
certify by affidavit of indigency which shall be compiled by the pretrial release officer, as
provided under KRS Chapter 431 and Supreme Court Rules or orders promulgated pursuant
thereto, the
material factors relating to his ability to pay in the form the Supreme Court prescribes.
(3) The affidavit of indigency, to be subscribed and sworn to by the person, and, in the case of an
unemancipated minor under KRS 31.100(3)(c), by his custodial parent or guardian, shall be as
set out herein and contain, at a minimum, the following information: …
Louisiana: (b) A person will be deemed "indigent" who is unable,
without substantial financial hardship to himself or to his
dependents, to obtain competent, qualified legal representation on
his own. "Substantial financial hardship" is presumptively
determined to include all defendants who receive public assistance,
such as Food Stamps, Temporary Assistance for Needy Families,
Medicaid, Disability Insurance, resides in public housing, or earns
less than two hundred percent of the Federal Poverty Guideline. A
defendant is presumed to have a substantial financial hardship if he
or she is currently serving a sentence in a correctional institution
or is housed in a mental health facility. LA RS 15-175 (b)
94-649
MAINE COMMISSION ON INDIGENT LEGAL SERVICES
Chapter 401: GUIDELINES FOR DETERMINATION OF FINANCIAL ELIGIBILITY FOR
ASSIGNED COUNSEL AND REIMBURSEMENT FOR ASSIGNED COUNSEL
COSTS
Summary: This chapter establishes guidelines for determining a person’s financial eligibility for
assigned counsel and for determining whether eligible persons should be required to reimburse the
state for some or all of the cost of assigned counsel. These guidelines govern the work of financial
screeners employed by the commission and are intended to provide guidance to courts in their
determination of financial eligibility and the amount, if any, of reimbursement.
SECTION 1.
DETERMINATION OF FINANCIAL ELIGIBILITY
1.
Definitions. The following definitions shall be used in making a determination of
financial eligibility:
A.
Income. Income means actual available current annual total cash
receipts before taxes of all persons who are resident members of, and
contribute to, the support of a family unit. Income may also include
potential wages from seasonal employment when the applicant has a
history of seasonal employment. Types of income include, but are not
limited to: wages, income from self-employment, rents, royalties, child
support, alimony, Social Security benefits, including SSDI and SSI,
TANF benefits, VA benefits, general assistance, cash benefits,
unemployment compensation, workers compensation, insurance or
pension benefits, strike benefits, interest, dividends, and military
family allotments.
Income does not include in-kind assistance
such as food stamps or vouchers.
B.
Cash assets. Cash assets means cash on hand; money in savings,
checking, IRA, certificates of deposit or other readily accessible
accounts; stocks or bonds that can be sold; and cash bail unless another
person has been designated as the owner of the cash pursuant to 15
M.R.S.A. §1074(1).
C.
Other assets. Other assets include equity in real estate equal to an
amount necessary to obtain a home equity loan; cash value of insurance
policies; cash value of pension, retirement, or profit sharing plans to
which the applicant has access; equity value of major personal property
items such as boats, snowmobiles, and motor vehicles that are not
needed for work or family transportation; valuable jewelry; antiques or
collections; and any other property that could be sold, exchanged, or
used to obtain a loan.
94-649 Chapter 401
D.
page 2
Necessary Monthly Expenses. Necessary monthly expenses include
only expenses necessary for the following:
(1)
(2)
(3)
(4)
(5)
food;
shelter, including mortgage payments on a principal residence,
rent and utilities;
medical care, including medical insurance premiums paid by
the applicant and installment payments on debts for medical
expenses;
employment, including loan payments on a vehicle used to get
to work and uniforms required by the employer;
debts, including minimum payments on credit card debt and
payments on student loans and long term (longer than 6
months) personal loans.
Expenses for items not listed above should not be included in the
calculation of necessary monthly expenses.
2.
Procedure for determining financial eligibility and amount of reimbursement. The
following procedures shall be used for determining financial eligibility and the amount of any
reimbursement obligation:
A.
Determine gross income and assets of the applicant and all members of
the applicant’s family unit.
B.
If the cash assets of the applicant and the applicant's family unit exceed
the amounts set forth below, the applicant is not eligible for assigned
counsel. For adult criminal and juvenile cases: $1,000 in cases where
the most serious charge alleges a Class D or E crime; $2,000 in cases
where the most serious charge alleges a C crime; $3,000 in cases
where the most serious charge alleges a B crime; $4,000 in cases
where the most serious charge alleges a Class A crime; and $2,500 for
child protective cases.
C.
If the applicant’s cash assets are less than the amounts above, it is
necessary to determine whether the applicant can convert other assets
into cash so that the applicant can retain an attorney. If the other assets
are such that they can be used to hire an attorney, the applicant is not
eligible. If the applicant is or has been converting cash assets into other
assets, such as making a large down payment or substantial monthly
payments on a motor vehicle or similar item, this fact can be taken into
consideration in determining eligibility.
D.
If the applicant’s cash and convertible assets equal less than the
amounts listed in Paragraph 2, the income amount should be compared
to the appropriate amount on the Income Table attached as Appendix A.
The Income Table is based on 110% of the federal poverty guidelines
and shall be updated by the Commission annually on July 1st. If the
income of the applicant and applicant's family unit is less than the
94-649 Chapter 401
page 3
appropriate amount on the Income Table, the applicant is eligible for
assigned counsel.
SECTION 2.
1.
E.
In order to determine whether the applicant can reimburse the State for the
expense of assigned counsel, compare the monthly income of the applicant with
the applicant’s necessary monthly expenses. If income exceeds necessary
monthly expenses, the applicant should be required to make periodic payments
based on the amount by which income exceeds necessary expenses to reimburse
the State for the cost of assigned counsel. Payments should be required up to an
amount equal to the maximum fee set by the Commission for the type of case for
which counsel is assigned. Maximum fees are set forth on Appendix B. Cash
and convertible assets that are available but are insufficient to disqualify an
applicant under subsection 2 should also be considered when determining
whether an applicant can make reimbursement and the amount of reimbursement.
F.
Applicants whose income exceeds 110% of the federal poverty guidelines may be
eligible for assigned counsel if they have extraordinary necessary monthly
expenses that render them unable to retain counsel. In such cases, an order for
reimbursement should be entered unless the interests of justice demand
otherwise.
G.
In any case where a person represented by assigned counsel subsequently retains
counsel, the court should, when granting assigned counsel leave to withdraw,
order the person to reimburse the State for amounts expended for representation
by assigned counsel prior to the entry of appearance of retained counsel.
BAIL
In all cases where a criminal defendant represented by assigned counsel has posted cash
bail that has not been designated the property of another pursuant to 15 M.R.S.A.
§1074(1), the bail should be ordered set-off pursuant to 15 M.R.S.A. §1074(3)(c) to
reimburse counsel fees and other expenses paid by the state for representation in the
proceeding in which bail is posted or in any unrelated proceeding.
STATUTORY AUTHORITY: 4 M.R.S. § 1804(2)(A) and (4)(D)
EFFECTIVE DATE: 94-649 Chapter 401
APPENDIX A
INCOME TABLE FOR DETERMINATION OF ELIGIBILITY FOR ASSIGNED COUNSEL
Family Size Gross Annual Income 1 $11,979.00
2 $16,181.00
3 $20,283.00
4 $24,585.00
5 $28,787.00
6 $32,989.00
7 $37,191.00
8 $41,393.00
For each additional person add $4,202.00 Allowable Cash Assets Class A $4,000 Class B $3,000 Class C $2,000 Class D & E $1.000 Protective Custody $2,500 Monthly Gross Weekly Gross $998.25 $1,348.42 $1,698.58 $2,048.75 $2,398.92 $2,749.08 $3,099.25 $3,449.42 $350.17 $230.37 $311.17 $391.98 $472.79 $553.60 $634.40 $715.21 $796.02 $80.81 page 4
94-649 Chapter 401
APPENDIX B
MAXIMUM FEES FOR VARIOUS CASE TYPES Chapter 301: FEE SCHEDULE AND ADMINISTRATIVE PROCEDURES FOR PAYMENT OF COMMISSION ASSIGNED COUNSEL Type Class A Class B & C (against person) Class B & C (against property) Class D & E (Superior or UCD) Class D & E (District Court) Post‐Conviction Review Probation Revocation Miscellaneous Juvenile Child Protective Termination of Parental Rights (with hearing) Application for Involuntary Commitment Petition for Emancipation Petition for Modified Release Treatment Petition for Release or Discharge Criminal Direct Appeals & Appellate work Unsuccessful Application for Certificate of Probably Cause Amount $2,500.00 $1,875.00 $1,250.00 $625.00 $450.00 $1,000.00 $450.00 $450.00 $450.00 $750.00 $1,050.00 $350.00 $350.00 $350.00 $350.00 $1,000.00 $750.00 page 5
MITCHELL JOSEPH 9/10/2012
For Educational Use Only
.05 Determination of Eligibility for Services., MD ADC 14.06.03.05
Code of Maryland Regulations Currentness
Title 14 Independent Agencies
Subtitle 06 Office of the Public Defender
Chapter 03 Eligibility for Services (Refs & Annos)
COMAR 14.06.03.05
.05 Determination of Eligibility for Services.
A. Pursuant to Criminal Procedure Article, §§16-207 and 16-210, Annotated Code of Maryland, and Office of the Public
Defender v. State, 413 Md. 411 (2010), eligibility for services of the Office of the Public Defender shall be determined on the
basis of need of the individual seeking legal representation. Need shall be measured by the financial ability of the applicant to
engage and compensate competent private counsel and to provide all other necessary expenses of representation without undue
financial hardship. This ability shall be recognized to be a variable depending on:
(1) The nature, extent, and liquidity of assets;
(2) The disposable net income of the defendant;
(3) The nature of the offense;
(4) The effort and skill required to gather pertinent information;
(5) The length and complexity of the proceedings; and
(6) Any other foreseeable expenses.
B. Persons seeking the services of the Office of the Public Defender shall fully disclose, under oath or affirmation, all financial
assets, income, living expenses, and liabilities by completing an Application for Public Defender Services Form which shall be
supplied by the Office at a confidential eligibility interview and provide the office at the time of the interview with documentary
evidence of all financial information as given on the application form.
C. In conformity with the decision of the Court of Special Appeals in Baldwin v. State, 51 Md. App. 538, 444 A.2d 1058 (1982),
the following guidelines apply:
(1) Any doubts as to defendant's indigence shall be resolved by providing assistance of counsel rather than denying it;
(2) The defendant's financial ability shall be measured in terms of his resources and not in terms of resources of the
defendant's family;
(3) The fact that bond was posted may not be used as grounds to deny appointed counsel;
(4) Assets seized in raids and held by authorities subject to confiscation may not be deemed available to the defendant for
purposes of determining his financial ability;
(5) The defendant's presumed employability shall form no proper basis for denying appointed counsel.
D. Income Level.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
1
MITCHELL JOSEPH 9/10/2012
For Educational Use Only
.05 Determination of Eligibility for Services., MD ADC 14.06.03.05
(1) For an individual whose assets and net annual income are less than 100 percent of the federal poverty guidelines,
eligibility for services of the Office may be determined without an assessment regarding the need of the applicant.
(2) Assets considered shall include all liquid and nonliquid assets of the applicant, excluding the applicant's principal
residence and primary vehicle.
Complete through Maryland Register Vol. 39, Issue 16, dated August 10, 2012.
COMAR 14.06.03.05, MD ADC 14.06.03.05
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
Massachusetts General Laws Annotated
Rules of the Supreme Judicial Court (Refs & Annos)
Chapter Three. Ethical Requirements and Rules Concerning the Practice of Law
S.J.C. Rule 3:10
Rule 3:10. Assignment of Counsel
Currentness
(Applicable to all courts)
Section 1. Definitions. The following definitions apply in this rule:
(a) Anticipated Cost of Counsel--The cost of retaining private counsel for the defense of a felony charge within the jurisdiction
of the Superior Court, as estimated and published from time to time by the Committee for Public Counsel Services.
(b) Available Funds-(i) General Definition. A party's liquid assets and disposable net monthly income calculated after provision is made for the
party's bail obligations.
(ii) Certain Assets and Income of Party's Household. A party's available funds shall include the liquid assets and disposable
net monthly income of the party's spouse (or person in substantially the same relationship) and each of the party's parents,
provided, in each instance, any such person lives in the same residence as the party and contributes substantially toward
the household's basic living expenses, unless that other person has an adverse interest in the proceeding (e.g., is the victim,
complainant, or petitioning party, is a prospective prosecution witness, or is a party, if it is a civil matter).
(iii) Available Funds of a Party over Sixteen Supported by Another. The available funds of any party over the age of sixteen
who is substantially supported by a parent or parents or by a guardian, or who continues to be claimed as a dependent for
tax purposes, shall include the available funds of that person's parent or parents or guardian, except when that other person
has an adverse interest in the proceeding.
(iv) Available Funds of a Party under Seventeen. The available funds of a party under the age of seventeen (including a child
allegedly in need of services and an allegedly delinquent child, as defined in G.L. c. 119, §§ 21 & 52, respectively) shall
include available funds of the child's parents or guardian, regardless of their place of residence, except when that other person
has an adverse interest in the proceeding.
(c) Basic Living Costs--The average monthly amount spent for reasonable payments, including loan payments, toward living
costs, such as shelter, food, utilities, health care, transportation, clothing, education, and support payments.
(d) Disposable Net Monthly Income--The income remaining each month after deducting income taxes, social security taxes,
contributory retirement, union dues, and basic living costs.
(e) Income--Salary, wages, interest, dividends, rental income, and other earnings and cash payments, such as amounts received
from pensions, annuities, social security, and public assistance programs.
(f) Indigent--A party who is:
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
1
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
(i) receiving one of the following types of public assistance: Aid to Families with Dependent Children (AFDC), Emergency
Aid to Elderly, Disabled and Children (EAEDC), poverty related veterans' benefits, food stamps, refugee resettlement
benefits, Medicaid, or Supplemental Security Income (SSI);
(ii) receiving an annual income, after taxes, one hundred twenty-five percent or less of the then current poverty threshold
referred to in G.L. c. 261, § 27A(b);
(iii) residing in a tuberculosis treatment center or a public or private mental health, mental retardation or long term care
facility, including the Bridgewater State Hospital and the Treatment Center, or the subject of a proceeding in which admission
or commitment to such a center or facility is sought, or who is the subject of a proceeding in which a substituted judgment
determination concerning treatment is sought, provided, however, that where the judge has reason to believe that the party is
not indigent, a determination of indigency shall be made in accordance with Section 4 and other applicable provisions of this
rule. The provisions of paragraph (b) of Section 1 of this rule notwithstanding, for purposes of such determination “available
funds” shall not include the liquid assets or disposable net monthly income of any member of the party's family.
(iv) serving a sentence in a correctional institution and has no available funds; or
(v) held in custody in jail and has no available funds.
(g) Indigent but Able to Contribute--A party who
(i) has an annual income, after taxes, of more than one hundred twenty-five percent and less than two hundred fifty percent
of the then current poverty threshold referred to in G.L. c. 261, § 27A(b), or
(ii) is charged with a felony within the jurisdiction of the Superior Court and whose available funds are insufficient to pay
the anticipated cost of counsel for the defense of the felony but are sufficient to pay a portion of that cost.
(h) Liquid Assets--Cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity
in a motor vehicle or in other tangible property; provided that any equity in real or personal property is reasonably convertible
to cash. Any motor vehicle necessary to maintain employment shall not be considered a liquid asset.
(i) Party--A defendant in a criminal proceeding, a juvenile in a delinquency proceeding, and any person, including a juvenile,
in a civil matter in which the person has a right to counsel.
Section 2. Advice as to Right to Counsel. If any party to a proceeding in which the law of the Commonwealth or the rules
of this court establish a right to be represented by counsel initially appears in any court without counsel, the judge shall advise
the party, or if the party is a juvenile or is under guardianship, the party and a parent or legal guardian, where appropriate, that:
(a) the law requires that counsel be available in the proceeding, at public expense if necessary and (b) if the court finds that the
party wants counsel and cannot afford counsel, the Committee for Public Counsel Services will provide counsel at no cost or
at a reduced cost. Thereafter, the judge shall make findings as provided in the following sections of this rule.
Section 3. Waiver of Counsel. If the party knowingly elects to proceed without counsel, a written waiver by the party and a
certificate of the judge on the form hereafter provided in this section shall be signed by the party and the judge, respectively, and
filed with the papers in the case. If the party knowingly elects to proceed without counsel but refuses to sign the form hereafter
provided, the judge shall so certify on that form, which shall be filed with the papers in the case.
In proceedings pursuant to General Laws, chapter 111, §§ 94C and 94G, chapter 123, chapter 123A, and chapter 201, prior to
allowing a waiver, the judge shall specifically determine whether the party is competent to waive counsel. Notwithstanding such
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
waiver, if the judge determines that the party is not competent to waive counsel or is otherwise unable effectively to exercise
the party's rights at a hearing, the judge shall appoint standby counsel pursuant to Section 6.
The following waiver form shall be used as provided in this Section:
Commonwealth of Massachusetts
DETERMINATION WITH RESPECT TO
Docket Nos.
WAIVER OF RIGHT TO COUNSEL
.........................................................................................
PURSUANT TO S.J.C.
.........................................................................................
RULE 3:10
...........................................................................................................
...........................................................................................................
.......................................................................................................................................................................................................
__________ Court Department __________ Court
.......................................................................................................................................................................................................
CASE NAME
..............................................................
________________________
..............................................................
vs.
..............................................................
________________________
..............................................................
..............................................................
I. STATEMENT OF PARTY
.......................................................................................................................................................................................................
.......................................................................................................................................................................................................
I, ________________________(Name of Party), have been informed of my right to have
a lawyer represent me at every stage of the proceedings in this case, and that if I cannot afford to hire my own lawyer, this
Court will assign the Committee for Public Counsel Services to provide representation for me. KNOWING THAT I HAVE
A RIGHT TO HAVE A LAWYER REPRESENT ME, I NEVERTHELESS ELECT TO PROCEED IN THIS MATTER
WITHOUT A LAWYER AND WAIVE MY RIGHT TO SUCH A LAWYER.
.......................................................................................................................................................................................................
.......................................................................................................................................................................................................
.................................................................................................. ..................................................................................................
Signature of Party or Parent or Guardian for Incompetent/
Printed or Typed Name of Person Signing
Juvenile
.......................................................................................................................................................................................................
Signed this ______________ day of ______________, 19____.
.......................................................................................................................................................................................................
.......................................................................................................................................................................................................
II. CERTIFICATE OF JUDGE
.......................................................................................................................................................................................................
I hereby certify that the party named above has been informed, by me, of the right to counsel in accordance with Supreme
Judicial Court Rule 3:10 and G.L. c. 211D, § 5; that the party has knowingly elected to proceed without a lawyer and
.......................................................................................................................................................................................................
________ has executed a waiver of counsel in my presence,
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
3
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
________ has refused to sign a waiver.
.......................................................................................................................................................................................................
.............................................................................. .......................................................................................... ........................
Signature of Judge
Printed or Typed Name of Judge
Date
Section 4. Determination of Indigency Status.
(a) If the judge finds that the party has not knowingly elected to proceed without counsel and the party does not arrange to
obtain counsel, the judge shall receive a written report and opinion as to indigency from a probation officer or other appropriate
court employee as provided in Section 8 of this rule. After reviewing the report and opinion and interrogating the party, as
appropriate, the judge shall make one of the following three determinations:
(i) the party is indigent,
(ii) the party is indigent but able to contribute, or
(iii) the party is not indigent.
The judge shall enter findings on the following form, which shall be filed with the papers in the case:
Commonwealth of Massachusetts
.......................................................................................................................................................................................................
JUDGE'S DETERMINATION
Docket Nos.
WITH RESPECT TO INDIGENCY
..................................................................................................
PURSUANT TO S.J.C. RULE 3:10
..................................................................................................
..................................................................................................
______________ Court Department
______________ Court
..................................................................................................
..................................................................................................
CASE NAME
.....................................................................
________________________
.....................................................................
vs.
.....................................................................
________________________
.....................................................................
After considering the report and recommendation of the probation officer or other appropriate court employee, and after
interrogating the party, if appropriate, based upon the standards in Supreme Judicial Court Rule 3:10, I FIND THAT THE
PARTY IS:
.........................................................................................................................................................
I.
________
INDIGENT because the party:
.........................................................................................................................................................
________
receives Aid to Families with Dependent Children (AFDC).
________
receives Emergency Aid to Elderly, Disabled and Children (EAEDC).
________
receives poverty related veterans' benefits.
________
receives food stamps.
________
receives refugee resettlement benefits.
________
receives Medicaid.
________
receives Supplemental Security Income (SSI).
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
4
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
________
II.
III.
is a patient in a mental health facility or treatment center (or is the subject of
a proceeding for admission to such a facility) and lacks available funds.
________
is serving a sentence in a correctional institution and has no available funds.
________
is held in custody in a jail and has no available funds.
________
has an annual income, after taxes, 125% or less of the current poverty
threshold referred to in G.L. c. 261, § 27A(b).
________
is determined to be indigent pursuant to S.J.C. Rule 3:10, Section 4(b)
[Judge's Section 4(b) findings on the record are appended].
...........................................................................................................................
________
INDIGENT BUT ABLE TO CONTRIBUTE and is therefore ordered to pay $________ toward
the cost of counsel because the party:
________
has an annual income, after taxes, of more than 125% and less than 250% of
the current poverty threshold referred to in G.L. c. 261, § 27A(b).
________
is charged with a felony within the jurisdiction of the Superior Court and has
available funds sufficient to pay a portion of the anticipated cost of counsel.
________
is determined to be indigent but able to contribute pursuant to S.J.C.
Rule 3:10, Section 4(b) [Judge's Section 4(b) findings on the record are
appended].
...........................................................................................................................
________
NOT INDIGENT and is able to pay the cost of counsel. [Judge's findings on the record are
appended if this finding is pursuant to S.J.C. Rule 3:10, Section 4(b)].
.........................................................................................................................................................
...................................................................................................... .............................................................................
Signature of Judge
Date
(b) In making the determination called for by this Section, the judge shall apply the definitions of indigent and indigent but able to
contribute set forth in Section 1 of this rule. Notwithstanding the determination that the application of those definitions indicates,
a judge nevertheless may place a party in either of the other categories described in Section 4(a), based on a consideration of
the party's available funds in relation to the party's basic living costs or based on special circumstances, or both, provided that
the judge sets forth in findings on the record the reason for doing so.
Section 5. Assignment of Counsel/Notice of Assignment. If under Section 4 of this rule the judge finds that a party is in
category (i) or (ii) of Section 4(a), the judge shall assign the Committee for Public Counsel Services to provide representation
for the party, unless exceptional circumstances, supported by written findings, necessitate use of a different procedure that is
consistent with G.L. c. 211D and the rules of this court. The court clerk or register shall promptly complete and transmit a
Notice of Assignment of Counsel Form, provided by the Committee for Public Counsel Services with the approval of this court,
to the party and shall file a copy with the papers in the case.
In proceedings pursuant to General Laws, chapter 111, §§ 94C and 94G, chapter 123, chapter 123A, and chapter 201, the judge
shall appoint counsel immediately upon the filing of a petition. If, prior to the commencement of a hearing in such proceedings,
the judge determines that the party is not indigent, assigned counsel may be dismissed, and, if so, the party shall be advised
to retain private counsel without delay; provided, however, that if the interests of justice so require in such proceedings, the
judge shall authorize the continued services of appointed counsel at public expense. The interests of justice may require such
appointment if, for example, the party is incompetent to obtain counsel, incapable of obtaining access to funds, or incapable
of locating or contracting with a lawyer. If, subsequent to the commencement of a hearing in such proceedings, the judge
determines that the party is not indigent, assigned counsel shall continue to represent the party and the party may be ordered
to reimburse the Commonwealth therefor.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
5
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
If under Section 4 of this rule a judge has found that a party is not indigent, but after a reasonable time the party has not waived
counsel, procured counsel, or seasonably petitioned the court for the appointment of counsel on the basis that, after a reasonable
effort, the party has been unable to retain counsel because of financial reasons, then the case may be ordered to proceed.
Section 6. Standby Counsel. Notwithstanding a party's waiver of counsel, the judge may assign counsel in accordance with
this rule to be available to assist the party in the course of the proceedings.
Section 7. Review of Indigency Determination.
(a) A party's indigency status may be reviewed at any stage of a court proceeding if information regarding a change in financial
circumstances becomes available to a probation officer or other appropriate court employee, through the court's verification
system, or from some other source, including the party.
(b) A party has the right to reconsideration in a formal hearing of the findings and conclusion as to the party's entitlement to
assigned counsel.
Section 8. Report by Probation Officer or Other Appropriate Court Employee. The probation officer or other appropriate
court employee shall provide to the judge a written report and opinion as to indigency on a form prescribed by this court based
on information obtained from the party and subject to a verification system established by the Chief Justice for Administration
and Management of the Trial Court. The form shall include information necessary to provide a basis for making a determination
with respect to indigency as provided in this rule.
Section 9. Inadmissibility of Information Obtained From a Party. No information provided by a party pursuant to this rule
may be used in any criminal or civil proceeding against the party except in a prosecution for perjury or contempt committed
in providing such information.
Section 10. Counsel for Parties Indigent and Indigent but Able to Contribute.
(a) Appearance of Counsel. Counsel assigned by the Committee for Public Counsel Services to represent a party pursuant to
this rule shall file an appearance in the case within forty-eight hours after notification of the assignment.
(b) Withdrawal of Appearance. If counsel assigned by the Committee for Public Counsel Services, who has filed an appearance,
is unable or unwilling to represent a party, he shall move to withdraw his appearance. If the judge consents to the motion for
withdrawal, the court clerk or register shall immediately notify the Committee for Public Counsel Services to make a new
assignment of counsel.
(c) Payment of Counsel Costs.
(i) While determined to be indigent, a party may not be ordered, required, or solicited to make any payment toward the cost
of counsel, except for an order entered pursuant to G.L. c. 211D, § 2A.
(ii) If a party is determined to be indigent but able to contribute, the judge shall order the party to pay a reasonable amount to
the probation officer or other appropriate court employee toward the cost of counsel in addition to assessing a legal counsel fee
as provided in G.L. c. 211D, § 2A. The amount ordered to be paid shall be based on the financial circumstances of the party.
(iii) All funds received as payment toward the cost of counsel, including amounts received pursuant to G.L. c. 211D, § 2A,
shall be deposited with the State Treasurer in accordance with law.
Amended July 1, 1993, effective October 1, 1993.
PRETRIAL INTAKE/INDIGENCY REPORT
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
6
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
COMMONWEALTH OF MASSACHUSETTS
PRETRIAL INTAKE/INDIGENCY REPORT
(date)
.....................................................................................................................................
Division ...........................................................................................
Docket No.(s) .....................................................
.....................................................
Department ......................................................................................
.....................................................
...........................................................................................................
INTAKE DATA
.......................................................................................................................................................................................................
Name __________ Marital Status S ____ M ____ W ____ Sep. ____ Div. ____
.......................................................................................................................................................................................................
Address
............................... # of Dependents ____ Spouse (Maiden) ................................................................................
(Street)
................................................................................. With Whom Do You Reside ...................................................................
(City)
(State)
(Zip)
Other Residence(s) Past Year .....................................................................................................................................................
Tel. No. ..........................................
DOB -/-/POB
_
Father
_
Mother (Maiden)
_
Ethnicity
White Black Hispanic
Asian/Pacific Islander
Cape Verdean American Indian
Ht. ____ Wt. ____ Hair ____ Eyes ____ Sex M ____ F ____ S.S. No. ____
U.S. Citizen
Y ____ N ____ I.D. Verified: Y ____ N ____ Method ...............................................................................
Employed by __________________ Occupation __________ Since ........................................................................................
Address ____________ Employment during past year ..............................................................................................................
.......................................................................................................................................................................................................
Prior Court Appearances Y ______ N ______ MASS Y ______ N ______
Other States ________________________(specify)
Probation/Parole (P/P) Status ____________ Name/Tel# of P/P Supervisor ............................................................................
INDIGENCY REPORT
TO BE COMPLETED IF APPOINTMENT OF COUNSEL REQUESTED
I.
a.
b.
c.
d.
................... Party is indigent because receives public assistance in form of:
......... AFDC
Poverty
Food
......... Medicaid
Refugee
Related
......... Stamps
Resettlement
......... EAEDC
Veterans'
......... SSI
......... Benefits
......... Benefits
VERIFIED.......................................
.................... Party is indigent because he/she is a patient in a public/private
mental health facility and has no available funds.
VERIFIED.......................................
.................... Party is indigent because is serving a sentence or is in custody in
a jail or correctional institution and has no available funds.
VERIFIED.......................................
.................... Party is indigent because annual income, after taxes, is 125% or
less of the current poverty threshold referred to in G.L. c. 261, s.
27A(b).
VERIFIED.......................................
........................................................................................................
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
7
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
........................................................................................................
IF ANY OF ABOVE CATEGORIES APPLY, STOP. COMPLETE SECTIONS V AND VII ONLY. SUBMIT
REPORT TO COURT. IF SECTION I IS NOT APPLICABLE, COMPLETE SECTIONS II-VII.
.......................................................................................................................................................................................................
COMPUTATION
.......................................................................................................................................................................................................
II. INCOME (Monthly)
III. EXPENSES (Monthly)
..................................................................................................
a.
Net salary
____
g.
Parties share of basic
b. Interest, dividends, or other
earnings
living costs, including loans, toward:
____
Shelter
____
c.
Contribution from other
Utilities
____
family member(s)
____
Food
____
d. Unemployment, social secuClothing
____
rity, workers' comp.,
Health care
____
pension, annuities
____
Transportation
____
e.
Income from individual
Education
____
with “spouse type”
TOTAL
....................
relationship
____
h.
Support for dependents
____
f.
Other income
____
TOTAL INCOME
$ ____
TOTAL EXPENSES $..................
Subtract Total Expenses from Total
Income
DISPOSABLE NET MONTHLY
INCOME
=$ ____
(A)
.......................................................................................................................................................................................................
IV. LIQUID ASSETS
.......................................................................................................................................................................................................
i.
Cash, savings, bank accounts
____
j.
Stocks, bonds, Certificates of
Deposit (CD's)
____
k.
Equity in real estate
reasonably convertible to cash
____
l.
Equity in motor vehicle(s) not
required for employment
and reasonably convertible to
cash
____
..................................................
TOTAL LIQUID ASSETS
$ ____
(B)
..................................................
V.
I hereby affirm that the information listed above is true and accurate. By signing this document I do so under the
penalties of perjury and I understand that some or all of this information is subject to verification.
............................................................................................................................................................................................
.................................................................................................................................... ................................................................
Signature of Party
Date
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
8
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
.......................................................................................................................................................................................................
VI. DETERMINATION OF INDIGENCY
.......................................................................................................................................................................................................
A Disposable net monthly income
$ .....................
B Plus liquid assets
+$ .....................
C TOTAL
$ .....................
D Minus bail obligations
-$ .....................
SUPERIOR COURT CRIMINAL
ONLY
E Equals available funds
=$ .....................
Available funds from E
................
....................................................
VII. RECOMMENDATION
Minus anticipated cost
of Counsel
................
Indigent
.....................
(fee)
Actual Available funds
................
Indigent but able to
contribute
$ _
Not Indigent
.....................
.................................................................................
Under the provisions of Section 4(a) of Rule 3:10 the above constitutes my recommendation to the Court.
.......................................................................................................................................................................................................
............................................... .....................................................................................................................................................
DATE
SIGNATURE OF PROBATION OFFICER OR OTHER APPROPRIATE COURT
EMPLOYEE
.....................................................................................................................................................
Credits
Amended July 1, 1993, effective October 1, 1993.
Poverty Guidelines for Affidavit of Indigency--2011
125% of Current Poverty Threshold--applicable under G. L. c. 261, § 27A.
Size of Family Unit
1
2
3
4
5
6
..................................................................................................
125% of Poverty Threshold
..................................................................................................
$13,612.50
..................................................................................................
$18,387.50
..................................................................................................
$23,162.50
..................................................................................................
$27,937.50
..................................................................................................
$32,712.50
..................................................................................................
$37,487.50
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
9
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Rule 3:10. Assignment of Counsel, MA R S CT Rule 3:10
..................................................................................................
7
$42,262.50
..................................................................................................
8
$47,037,50
..................................................................................................
For family units with more than 8 members add $4,775 for each additional member.
Notes of Decisions (11)
S.J.C. Rule 3:10, MA R S CT Rule 3:10
Current with amendments received through 7/1/2012
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
10
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Duncan v. State, 486 Mich. 1071 (2010)
784 N.W.2d 51
486 Mich. 1071
Supreme Court of Michigan.
Christopher Lee DUNCAN, Billy Joe Burr, Jr.,
Steven Connor, Antonio Taylor, Jose Davila,
Jennifer O'Sullivan, Christopher Manies,
and Brian Secrest, Plaintiffs–Appellees,
v.
STATE of Michigan and Governor of
Michigan, Defendants–Appellants.
Christopher Lee Duncan, Billy Joe Burr, Jr.,
Steven Connor, Antonio Taylor, Jose Davila,
Jennifer O'Sullivan, Christopher Manies,
and Brian Secrest, Plaintiffs–Appellees,
v.
State of Michigan and Governor of
Michigan, Defendants–Appellants.
Christopher Lee Duncan, Billy Joe Burr, Jr.,
Steven Connor, Antonio Taylor, Jose Davila,
Jennifer O'Sullivan, Christopher Manies,
and Brian Secrest, Plaintiffs–Appellees,
v.
State of Michigan and Governor of
Michigan, Defendants–Appellants.
Docket Nos. 139345, 139346,
139347(108)(109). | COA Nos. 278652,
278858, 278860. | July 16, 2010.
Opinion
Order
On order of the Court, *1071 the motion for reconsideration
of this Court's April 30, 2010 order is considered, and it is
GRANTED. We VACATE our order dated April 30, 2010.
On reconsideration, leave to appeal having been granted
and the briefs and oral argument of the parties having been
considered by the Court, we REVERSE the June 11, 2009
judgment of the Court of Appeals for the reasons stated in
the Court of Appeals dissenting opinion. The defendants are
entitled to summary disposition because, as the Court of
Appeals dissenting opinion recognized, the plaintiffs' claims
are not justiciable. Accordingly, we REMAND this case to
the Ingham Circuit Court for entry of summary disposition in
favor of the defendants. The motion for stay is DENIED.
MARKMAN, J. (concurring).
I concur with the order granting defendant's motion for
reconsideration, vacating this Court's order of April 30,
reversing the Court of Appeals, and remanding to the trial
court for entry of summary disposition in favor of defendants.
In our prior order, we affirmed the result of the Court of
Appeals, asserting that because “[t]his case is at its earliest
stages and, based solely on the plaintiffs' pleadings in this
case, it is premature to make a decision on the substantive
issues.” This was error for two reasons. First, as defendants
observe, this order vacated the Court of Appeals opinion
without articulating any governing standards. Second, it is
not premature to decide this case because the precise issue
presented is whether plaintiffs have stated a claim on which
relief can be granted, and this, as well as the threshold
justiciability issues, can be determined on the face of the
complaint. Defendants, in my view, are entitled to summary
disposition for the following reasons set forth in the Court of
Appeals' dissent:
*1072 (1) The United States Supreme Court in Gideon
v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), “was concerned with results,
not process. It did **52 not presume to tell the states how
to ensure that indigent criminal defendants receive effective
assistance of counsel.” Duncan v. Michigan, 284 Mich.App.
246, 357, 774 N.W.2d 89 (2009) (Whitbeck, J.,. dissenting).
(2) Plaintiffs' claims would have “the judiciary override the
Michigan system of local control and funding of legal services
for indigent criminal defendants,” despite the absence of any
constitutional violation. Id. at 358, 774 N.W.2d 89.
(3) Plaintiffs' claims are not sufficient to create a presumption
of either prejudice, or prejudice per se, that would warrant
either declaratory or injunctive relief. Id. at 361, 774 N.W.2d
89.
(4) Plaintiffs lack standing, and, therefore, their claims are not
justiciable. Id. at
(5) Plaintiffs' claims are not ripe for adjudication, and,
therefore, their claims are not justiciable. Id. at 371, 376, 774
N.W.2d 89.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
1
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Duncan v. State, 486 Mich. 1071 (2010)
784 N.W.2d 51
(6) Plaintiffs' claims are not justiciable and, therefore, the
relief they seek should not be granted. Id. at 385, 774 N.W.2d
89.
(7) In finding a justiciable controversy, the Court of Appeals
erred in adopting a number of assumptions that are conjectural
and hypothetical, including assumptions that plaintiffs and
the class they purport to represent will be convicted of the
crimes with which they are charged; that such convictions will
result from prejudice stemming from ineffective assistance of
counsel, that such ineffective assistance will be attributable to
the inaction of defendants, and that trial and appellate judges
will be unable or unwilling to afford relief for such violations
of the Sixth Amendment. Id. at 368–370, 774 N.W.2d 89.
(8) There is no constitutional precedent that “guarantees an
indigent defendant a particular attorney” or an “attorney of a
particular level of skill”; that requires that a “predetermined
amount of outside resources be available to an attorney”; or
that requires that there be a “meaningful relationship with
counsel.” Id. at 370, 774 N.W.2d 89.
(9) The Court of Appeals' assertions that affording plaintiffs
injunctive relief “could potentially entail a cessation of
criminal prosecutions against indigent defendants,” id. at
273, 774 N.W.2d 89, (majority opinion) and “that nothing
in this opinion should be read as foreclosing entry of an
order granting the type of relief so vigorously challenged
by defendants,” id. at 281, 774 N.W.2d 89, accurately
describe the potential consequences of its opinion, which
consequences would constitute an altogether unwarranted and
improper response to plaintiffs' claims. Id. at 380–385, 774
N.W.2d 89 (Whitbeck, J. dissenting).
(10) The Court of Appeals has “issued an open invitation to
the trial court to assume ongoing operational control over the
systems for providing defense counsel to indigent criminal
defendants in Berrien, Genesee and Muskegon counties.” Id.
at 383, 774 N.W.2d 89. And with that invitation comes a
“blank check” on the part of the judiciary to “force sufficient
state level legislative appropriations and executive branch
acquiescence” in assuming similar control over the systems
in every county in this state, while “nullifying the provisions”
of the criminal defense act and “superseding the authority of
the Supreme Court and the State Court Administrator.” Id. at
383–384, 774 N.W.2d 89.
*1073 For all of these reasons, I agree with the Court
of Appeals dissent that defendant's motion for summary
disposition should have been granted. 1
CORRIGAN and YOUNG, JJ., joined the statement of
MARKMAN, J.
**53 KELLY, C.J. (dissenting).
The motion for reconsideration should be denied. It adds
nothing new to warrant an outcome different from the one
correctly reached in this Court's April 30, 2010 order. Thus,
there is no basis for this Court's decision to reverse the Court
of Appeals.
FACTS AND PROCEDURAL HISTORY
This case involves a class action suit brought by indigent
criminal defendants in Berrien, Genesee, and Muskegon
counties. Plaintiffs allege that they, as well as future indigent
defendants subject to felony prosecutions, are being denied
their state and federal constitutional rights to counsel and
the effective assistance of counsel. Plaintiffs allege that
these constitutional violations stem directly from the indigent
defense systems currently used in those counties.
The trial court certified plaintiffs' claims as a class action
and denied defendants' motions for summary disposition.
Defendants filed an interlocutory appeal in the Court
of Appeals, which affirmed the trial court in a divided
opinion. 2 Judge WHITBECK dissented and would have
granted summary disposition to defendants. He concluded
that plaintiffs lacked standing, that their claims were neither
ripe nor justiciable, and that the class had been erroneously
certified. 3
Defendants appealed to this Court, and we granted leave to
appeal. 4 We heard oral argument in April 2010. On April 30,
2010, we issued an order affirming the result reached by the
Court of Appeals. 5 The order was premised on the important
consideration that this case is at its earliest stages. Given that
we must rule solely using plaintiffs' pleadings, it is premature
to make a decision on the substantive issues. Finally, our
order vacated the trial court's grant of class certification and
remanded the case to that court for reconsideration in light of
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Duncan v. State, 486 Mich. 1071 (2010)
784 N.W.2d 51
our decision in Henry v. Dow Chemical. 6 Notably, no justice
dissented from that order.
Defendants filed this motion for reconsideration on May 21,
2010. In it, defendants restate the same arguments from their
application for leave to appeal. Their only new argument
criticized our April 30 order as failing to provide proper
guidance for the lower court.
*1074 WHAT HAS CHANGED?
Our court rules require that in order to be entitled to relief 7
a litigant seeking reconsideration must demonstrate that our
previous ruling rested on a “palpable error.” Yet there is
nothing in defendants' motion for reconsideration of which we
were not fully aware when we issued our previous order. What
has changed warranting a different outcome now? Defendants
complain that this Court's original order affirms the result
of the Court of Appeals decision and vacates its reasoning
without articulating any governing standards. However, we
were certainly aware **54 when we issued our previous
order that, by affirming only the result reached by the Court
of Appeals, we were remanding the case without a controlling
standard.
Indeed, the only arguments proffered in favor of granting
reconsideration are a revival of arguments that our previous
order rejected. In their answer, plaintiffs correctly note that
defendants' motion merely repeats the arguments it made
earlier and that defendants are effectively asking this Court to
issue an advisory opinion.
PLAINTIFFS' CLAIMS ARE JUSTICIABLE
Regarding the substantive issues in this case, our prior
order correctly affirmed the result that the Court of Appeals
majority reached. The concerns about the justiciability
of plaintiffs' claims spelled out in Judge WHITBECK's
dissenting opinion and accepted by the majority here are
premature. Virtually all of those concerns relate to the type of
relief sought by plaintiffs. The dissent criticized the majority
for accepting four “assumptions” by allowing the case to
go forward. 8 Yet the dissent failed *1075 to acknowledge
that its reasoning rested on four unsupported assumptions
of its own: (1) that plaintiffs would prevail on the merits,
(2) that the trial court would order sweeping declaratory and
injunctive relief beyond the scope of its authority, (3) that
such relief would necessarily entail the judicial branch taking
“operational control” of the indigent defense systems in the
counties in question, and (4) that if all of the above occurred,
proper appellate review at that juncture would somehow be
inadequate.
I find the assumptions of the Court of Appeals majority
less troubling than those of the dissent, particularly given
that this case is before us at a very preliminary stage. Thus,
I agree with the Court of Appeals majority that “the trial
court has jurisdiction and authority to order declaratory relief,
prohibitory injunctive relief, and some level of mandatory
injunctive relief, the full extent of which we need not
presently define.” 9
At this preliminary stage, plaintiffs' claims adduce facts that
establish that they have standing, and that their claims are
ripe. Also, they state a claim upon which relief can be granted.
Today's order slams the courthouse door in plaintiffs' face for
no good reason.
CONCLUSION
The majority's decision to grant reconsideration and reverse
the Court of Appeals judgment rests on no new information
and on no “palpable error.” Because **55 I continue
to believe that our order of April 30 correctly rejected
defendants' arguments in favor of its motions for summary
disposition, I dissent.
CAVANAGH and HATHAWAY, JJ., join the statement of
KELLY, C.J.
Parallel Citations
784 N.W.2d 51 (Mem)
Footnotes
1
Specifically, however, I do not agree necessarily with the Court of Appeals dissent that our state “has not fully met its obligations”
under Gideon and Strickland. Id. at 398. It is unnecessary to address this issue at this time.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
3
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
Duncan v. State, 486 Mich. 1071 (2010)
784 N.W.2d 51
Duncan v. State of Michigan, 284 Mich.App. 246, 774 N.W.2d 89 (2009).
2
3
4
5
6
7
8
9
Id. at 371, 376, 380, 388, 774 N.W.2d 89 (WHITBECK, J., dissenting).
Duncan v. State of Michigan, 485 Mich. 1003, 775 N.W.2d 745 (2009).
Duncan v. State of Michigan, 486 Mich. 906, 780 N.W.2d 843 (2010).
Henry v. Dow Chemical, 484 Mich. 483, 772 N.W.2d 301 (2009).
MCR 2.119(F)(3).
Duncan, 284 Mich.App. at 369–370, 774 N.W.2d 89 (WHITBECK, J., dissenting):
For [plaintiffs'] claims to be resolved pre-conviction requires at least four basic assumptions:
• That the Duncan plaintiffs, and the class members they purport to represent, will in fact be convicted of the crimes with which
they are charged or of some lesser offense;
• That inactions of the state and the Governor will have caused such convictions; that is, these inactions will have so prejudiced
the defense that the Duncan plaintiffs and the class they purport to represent will have been denied their Sixth Amendment
right to a fair trial;
• That the trial courts in the three named counties will be unable or unwilling to correct such results by ordering new trials on
the basis of a finding of deficient performance and prejudice to the individual defendants; and
• That it is likely that if the Duncan plaintiffs are granted the preconviction declaratory and injunctive relief they seek, this will
redress the situation for them and for the class they purport to represent.
Duncan, 284 Mich.App. at 254–255, 774 N.W.2d 89.
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
4
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
611.17. Financial inquiry; statements; co-payment; standards for..., MN ST § 611.17
Minnesota Statutes Annotated
Crimes, Criminals (Ch. 609-624)
Chapter 611. Rights of Accused
Public Defense
M.S.A. § 611.17
611.17. Financial inquiry; statements; co-payment; standards for district public defense eligibility
Currentness
(a) Each judicial district must screen requests for representation by the district public defender. A defendant is financially unable
to obtain counsel if:
(1) the defendant, or any dependent of the defendant who resides in the same household as the defendant, receives means-tested
governmental benefits; or
(2) the defendant, through any combination of liquid assets and current income, would be unable to pay the reasonable costs
charged by private counsel in that judicial district for a defense of the same matter.
(b) Upon a request for the appointment of counsel, the court shall make appropriate inquiry into the financial circumstances of
the applicant, who shall submit a financial statement under oath or affirmation setting forth the applicant's assets and liabilities,
including the value of any real property owned by the applicant, whether homestead or otherwise, less the amount of any
encumbrances on the real property, the source or sources of income, and any other information required by the court. The
applicant shall be under a continuing duty while represented by a public defender to disclose any changes in the applicant's
financial circumstances that might be relevant to the applicant's eligibility for a public defender. The state public defender shall
furnish appropriate forms for the financial statements. The forms must contain conspicuous notice of the applicant's continuing
duty to disclose to the court changes in the applicant's financial circumstances. The forms must also contain conspicuous notice
of the applicant's obligation to make a co-payment for the services of the district public defender, as specified under paragraph
(c). The information contained in the statement shall be confidential and for the exclusive use of the court and the public
defender appointed by the court to represent the applicant except for any prosecution under section 609.48. A refusal to execute
the financial statement or produce financial records constitutes a waiver of the right to the appointment of a public defender.
The court shall not appoint a district public defender to a defendant who is financially able to retain private counsel but refuses
to do so.
An inquiry to determine financial eligibility of a defendant for the appointment of the district public defender shall be made
whenever possible prior to the court appearance and by such persons as the court may direct. This inquiry may be combined
with the prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02, subdivision 3. In no case shall
the district public defender be required to perform this inquiry or investigate the defendant's assets or eligibility. The court has
the sole duty to conduct a financial inquiry. The inquiry must include the following:
(1) the liquidity of real estate assets, including the defendant's homestead;
(2) any assets that can be readily converted to cash or used to secure a debt;
(3) the determination of whether the transfer of an asset is voidable as a fraudulent conveyance; and
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
1
MITCHELL JOSEPH 9/11/2012
For Educational Use Only
611.17. Financial inquiry; statements; co-payment; standards for..., MN ST § 611.17
(4) the value of all property transfers occurring on or after the date of the alleged offense. The burden is on the accused to show
that the accused is financially unable to afford counsel. Defendants who fail to provide information necessary to determine
eligibility shall be deemed ineligible. The court must not appoint the district public defender as advisory counsel.
(c) Upon disposition of the case, an individual who has received public defender services shall pay to the court a $75 co-payment
for representation provided by a public defender, unless the co-payment is, or has been, waived by the court.
The co-payment must be credited to the general fund. If a term of probation is imposed as a part of an offender's sentence, the
co-payment required by this section must not be made a condition of probation. The co-payment required by this section is a
civil obligation and must not be made a condition of a criminal sentence.
Credits
Laws 1965, c. 869, § 4. Amended by Laws 1983, c. 359, § 91; Laws 1986, c. 444; Laws 1989, c. 335, art. 1, § 260; Laws 1991,
c. 345, art. 3, § 3; Laws 1993, c. 146, art. 2, § 19; Laws 1994, c. 636, art. 11, § 3, eff. July 1, 1994; Laws 1995, c. 226, art. 2, §
24, eff. July 1, 1995; Laws 2002, c. 220, art. 6, § 13; Laws 2003, 1st Sp., c. 2, art. 3, § 4; Laws 2003, 1st Sp., c. 23, § 6; Laws
2007, c. 61, § 4, eff. Aug. 1, 2007; Laws 2009, c. 83, art. 2, § 47, eff. July 1, 2009.
Editors' Notes
VALIDITY
<A prior version of § 611.17 was held unconstitutional in the case of State v. Tennin, 2004, 674 N.W.2d 403. See
Notes of Decisions.>
Notes of Decisions (18)
M. S. A. § 611.17, MN ST § 611.17
Current with legislation of the 2012 Regular Session effective through July 31, 2012
End of Document
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
© 2012 Thomson Reuters. No claim to original U.S. Government Works.
2
Mississippi
The Office of the State Public Defender was just created last year, so the website doesn’t contain much
information. There is a statute that takes a case-by-case approach:
SEC. 25-32-9. Affidavit of indigency; statement of assets; representation of persons in need of
mental treatment.
(1) When any person shall be arrested and charged with a felony, a misdemeanor or an act of delinquency,
then the arresting authority shall afford such person an opportunity to sign an affidavit stating that such
person is an indigent and unable to employ counsel. Upon the signing of such affidavit by such person,
the public defender shall represent said person unless the right to counsel be waived by such person.
Provided further, a statement shall be executed by the alleged indigent, under oath, listing all assets
available to the indigent for the payment of attorney's fees, including the ownership of any property, real
or personal, and setting out therein the alleged indigent's employment status, number of dependents,
income from any source, the ability of his parents or spouse to provide an attorney's fee, and any other
information which might prove or disprove a finding of indigency. The affidavit and statement shall be a
part of the record in the case and shall be subject to review by the appropriate court. Based on review of
the affidavit, statement or other appropriate evidence, if the appropriate court finds that the defendant is
not indigent, said court shall terminate the representation of the defendant by the public defender.
When any person shall be arrested and charged with a misdemeanor, the presiding judge or justice, upon
determination that the person is indigent as provided in this section, and that representation of the indigent
is required, shall appoint the public defender whose duty it shall be to provide such representation. No
person determined to be an indigent as provided in this section shall be imprisoned as a result of a
misdemeanor conviction unless he was represented by the public defender or waived the right to counsel.
(2) The accused shall have such representation available at every critical stage of the proceedings against
him where a substantial right may be affected.
(3) The public defender shall also represent persons in need of mental treatment, as provided under
sections 41-21-61 et seq. The chancery court may tax costs as provided in sections 41-21-79 and 41-2185.
SOURCES: Laws, 1979, ch. 509, Sec. 5; 1980, ch. 518, eff from and after July 1, 1980.
Montana
Montana Code Annotated 2011 § 47-1-111
(3) An applicant is indigent if:
(a) the applicant's gross household income, as defined in 15-30-2337, is at or less than 133% of the
poverty level set according to the most current federal poverty guidelines updated periodically in the
Federal Register by the United States department of health and human services under the authority of 42
U.S.C. 9902(2); or
(b) the disposable income and assets of the applicant and the members of the applicant's household are
insufficient to retain competent private counsel without substantial hardship to the applicant or the
members of the applicant's household.
(4) A determination of indigence may not be denied based solely on an applicant's ability to post bail
or solely because the applicant is employed.
(5) A determination may be modified by the office or the court if additional information becomes
available or if the applicant's financial circumstances change.
(6) The commission shall establish procedures and adopt rules to implement this section. Commission
procedures and rules:
(a) must ensure that the eligibility determination process is fair and consistent statewide;
(b) must allow a qualified private attorney to represent an applicant if the attorney agrees to accept
from the applicant a compensation rate that will not constitute a substantial financial hardship to the
applicant or the members of the applicant's household;
(c) may provide for the use of other public or private agencies or contractors to conduct eligibility
screening under this section;
(d) must avoid unnecessary duplication of processes; and
(e) must prohibit individual public defenders from performing eligibility screening pursuant to this
section.
See: http://data.opi.mt.gov/bills/mca/47/1/47-1-111.htm
Nebraska
“There are no uniform standards or guidelines for determining who is eligible and who is not eligible.”
See: ppc.unl.edu/documents/IndigentFINALCOPY-PDF.pdf (page 4)
Nevada
“A person will be deemed ‘indigent’ who is unable, without substantial hardship to himself or his
dependents, to obtain competent, qualified legal counsel on his or her own. ‘Substantial hardship’ is
presumptively determined to include all defendants who receive public assistance, such as Food Stamps,
Temporary Assistance for Needy Families, Medicaid Disability Insurance, reside in public housing, or
earn less than 200 percent of the Federal Poverty Guideline. A defendant is presumed to have a
substantial hardship if he or she is currently serving a sentence in a correctional institution or housed in a
mental health facility.”
“Defendants not falling below the presumptive threshold will be subjected to a more rigorous screening
process to determine if their particular circumstances, including seriousness of charges being faced,
monthly expenses, and local private counsel rates, would result in a substantial hardship were they to seek
to retain private counsel.”
See:
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CB8QFjAA&u
rl=http%3A%2F%2Fwww.americanbar.org%2Fcontent%2Fdam%2Faba%2Funcategorized%2FDeath_Pe
nalty_Representation%2FStandards%2FState%2Fnevada_guidelines.authcheckdam.pdf&ei=mSZMUIKR
LqyA2QW_yoHoDA&usg=AFQjCNE1T3rrnp0QRykbeRRJACDOlm8qlg (pages 2-3)
New Hampshire
“Residents charged with a juvenile offense or misdemeanor offense may be found ineligible for
the appointment of counsel if they own real estate worth more than $10,000. Those charged with
a felony other than homicide are ineligible if they own real estate worth more than $20,000. No
exceptions are made for a primary residence or for real estate necessary for one’s business. A
person whose sole asset is the family home could be denied free counsel, even if the home is
worth only $20,000.”
See: brennan.3cdn.net/c8599960b77429dd22_y6m6ivx7r.pdf, citing N.H. Code Admin. R. Adm
1003.02(f)(1)(b)-(c)
New Jersey
See: www.judiciary.state.nj.us/mcs/2010_indigency_guidelines.pdf
NEW MEXICO
Determining eligibility for a Public Defender lawyer is based on net income and assets. All applications are
done in person with a Client Service Agent. Each District Office operates under different hours, and
depending on the office the individual wishes to apply, determines the times applications will be
processed. The Public Defender Department uses Federal Poverty Guidelines to calculate eligibility. The
department considers an individual’s net take home pay and the number of dependants in the household
as the key factors in determining eligibility.
If it is determined that an individual is not eligible for a lawyer based on income, a reimbursement
contract will be offered which allows the individual to receive representation by the Public Defender
lawyer at a reduced rate. Contracts are based on a sliding scale and will be determined at the time an
application is processed. Some out of pocket expenses may be considered and deducted, but no cost of
living expenses will be accepted.
The Public Defender Department can only do work for people who have been found eligible for
representation by a Public Defender. A person’s eligibility will be determined based on household income
and assets. To see if you qualify, you must visit one of our district offices where an eligibility clerk will ask
you a series of questions in order to complete the eligibility application. The items required to process an
application (one per case) are proof of income (married applicants are required to bring proof of spouse’s
income as well), court paperwork, and a $10.00 non-refundable application fee.
New York
Eligibility is based on the Federal Income Poverty Guidelines. Please consider
the following when determining if you are financially eligible:
FAMILY SIZE
WEEK
MONTH
YEAR
1
$268.52
$1,163.58
$13,963
2
$363.71
$1,576.08
$18,913
3
$458.90
$1,988.58
$23,863
4
$554.10
$2,401.08
$28,813
5
$649.29
$2,813.58
$33,763
6
$744.48
$3,226.08
$38,713
7
$839.67
$3,638.58
$43,663
8
$934.87
$4,051.08
$48,613
If you are unemployed but live with someone who brings in a form of
income, that person's income must be included in your application.
If you are employed and living with another individual who is also bringing in
an income, both incomes must be included in your application.
NORTH CAROLINA
Must be considered indigent under the NC indigency guidelines.
Part 1
Rules for the Continued Delivery of Services in Non-Capital
Criminal and Non-Criminal Cases at the Trial Level
“The North Carolina cases direct that various factors, such as the person’s employment, income, and assets, be
weighed in determining whether a person is indigent. The cases do not establish a precise measure of indigency,
however. The specific dollar amounts discussed in older cases are not particularly useful guides in assessing a
person’s ability to hire a lawyer now. To assist judicial officials and others in determining indigency, the IDS Office
is working on developing more detailed standards and expanding on the basic statutory definition of indigency.”
North Dakota
A person will generally be found to be indigent if his or her income is less than 125% of the federal
poverty guidelines, and if his or her assets do not exceed $20,000. We have a chart with income
guidelines showing how much a person, or family, could have as income in a year in order to qualify
for indigent defense services. The court, in making a determination of indigency, will consider more
factors than just income and assets; for instance, the nature/severity of the charge, and extraordinary expenses being paid by the person.
Income Guidelines 2011
These guidelines for gross income levels indicate income levels at or below which
eligibility for indigent defense services should be considered.
Household Size
1
2
3
4
Annual Gross
13,693
18,913
23,863
28,813
Income
Monthly Gross
1,164
1,576
1,989
2,401
Income
Weekly Gross
269
364
459
554
Income
Household Size
5
6
7
8
Annual Gross
33,763
38,713
43,663
8,613
Income
Monthly Gross
2,814
3,226
3,639
4,051
Income
Weekly Gross
649
744
840
935
Income
(Add $4,775 to annual gross income for each additional member in households of more
than eight.)
These income levels reflect 125% of the official poverty level threshold as defined by the
Department of Health and Human Services (76 F.R. 13, January 20, 2011).
Anyone with personal or real property assets in excess of $20,000 will not be considered
indigent.
Ohio
Based on indigency guidelines:
Oklahoma
If I make bond can I still get a public defender?
Making bond creates a presumption that you are financially able to hire a private
attorney. This presumption does not mean that you cannot get a public defender; it
simply means that you must demonstrate financial need to the judge before he or
she will appoint a public defender for you.
How much money can I make and still qualify for the services of the
Public Defender?
There is no fixed amount. When assessing your ability to pay for a private attorney,
the court will consider all aspects of your current financial situation, including
income, savings, assets, financial obligations, debts, and bankruptcies. If the court
then decides that you cannot afford to hire a private attorney, it will appoint a
public defender to represent you.
Oregon
§ 135.050¹
Eligibility for court-appointed counsel
• financial statement
• termination
• civil liability
(1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:
(a) The defendant is before a court on a matter described in subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified financial statement; and
(d) It appears to the court that the defendant is financially unable to retain adequate representation
without substantial hardship in providing basic economic necessities to the defendant or the
defendants dependent family.
(2) Suitable counsel for a defendant shall be appointed by a circuit court if:
(a) The defendant is before the court on a matter described in subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified financial statement; and
(d)(A) The defendant is determined to be financially eligible under ORS 151.485 (Financial
eligibility) and the standards established by the Public Defense Services Commission under ORS
151.216 (Duties); or
(B) The court finds, on the record, substantial and compelling reasons why the defendant is
financially unable to retain adequate representation without substantial hardship in providing basic
economic necessities to the defendant or the defendants dependent family despite the fact that the
defendant does not meet the financial eligibility standards established by the commission.
(3) Appointed counsel may not be denied to any defendant merely because the defendants friends or
relatives have resources adequate to retain counsel or because the defendant has deposited or is
capable of depositing security for release. However, appointed counsel may be denied to a defendant
if the defendants spouse has adequate resources which the court determines should be made available
to retain counsel.
(4) The defendants financial statement under subsection (1) or (2) of this section shall include, but
not be limited to:
(a) A list of bank accounts in the name of defendant or defendants spouse, and the balance in each;
(b) A list of defendants interests in real property and those of defendants spouse;
(c) A list of automobiles and other personal property of significant value belonging to defendant or
defendants spouse;
(d) A list of debts in the name of defendant or defendants spouse, and the total of each; and
(e) A record of earnings and other sources of income in the name of defendant or defendants spouse,
and the total of each.
(5) Counsel must be appointed for a defendant who meets the requirements of subsection (1) or (2) of
this section and who is before a court on any of the following matters:
(a) Charged with a crime.
(b) For a hearing to determine whether an enhanced sentence should be imposed when such
proceedings may result in the imposition of a felony sentence.
(c) For extradition proceedings under the provisions of the Uniform Criminal Extradition Act.
(d) For any proceeding concerning an order of probation, including but not limited to the revoking or
amending thereof.
(6) Unless otherwise ordered by the court, the appointment of counsel under this section shall
continue during all criminal proceedings resulting from the defendants arrest through acquittal or the
imposition of punishment. The court having jurisdiction of the case may not substitute one appointed
counsel for another except pursuant to the policies, procedures, standards and guidelines of the
Public Defense Services Commission under ORS 151.216 (Duties).
(7) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that
the defendant is financially able to obtain counsel, the court may terminate the appointment of
counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds
that the defendant is financially unable to pay counsel whom the defendant has retained, the court
may appoint counsel as provided in this section.
(8) The court may order the defendant in a circuit court to pay to the Public Defense Services
Account in the General Fund, through the clerk of the court, in full or in part the administrative costs
of determining the eligibility of the defendant for appointed counsel and the costs of the legal and
other services that are related to the provision of appointed counsel under ORS 151.487
(Ability to pay), 151.505 (Authority of court to order repayment of costs related to provision of
appointed counsel) or 161.665 (Costs).
(9) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body
which has expended moneys for the defendants legal assistance within two years of judgment if the
defendant was not qualified in accordance with subsection (1) or (2) of this section for legal
assistance.
(10) The civil proceeding shall be subject to the exemptions from execution as provided for by law.
(11) As used in this section unless the context requires otherwise, counsel includes a legal advisor
appointed under ORS 135.045 (Court appointment of counsel). [Formerly 133.625; 1981 c.3 §118;
1985 c.710 §1; 1989 c.1053 §1b; 1997 c.761 §8; 2001 c.472 §4; 2001 c.962 §25; 2003 c.449 §49]
151.485¹
Financial eligibility
• determination
• financial statement
• termination of appointed counsel
(1)For purposes of determining the financial eligibility for appointed counsel of persons
with a constitutional or statutory right to counsel in matters before the state courts and
whose counsel is authorized to be paid by the public defense services executive
director under ORS 151.219 (Public defense services executive director), a person is
financially eligible for appointed counsel if the person is determined to be financially
unable to retain adequate counsel without substantial hardship in providing basic
economic necessities to the person or the persons dependent family under standards
established by the Public Defense Services Commission under ORS 151.216 (Duties).
(2)A determination of financial eligibility shall be made upon the basis of information
contained in a detailed financial statement submitted by the person for whom counsel
is requested or appointed or, in an appropriate case, by the persons parent, guardian
or custodian. The financial statement shall be in the form prescribed by the Public
Defense Services Commission. The form shall contain a full disclosure of all assets,
liabilities, current income, dependents and other information required by
ORS135.050 (Eligibility for court-appointed counsel) (4) and, in addition, any information
required by the commission and state courts as necessary to determine eligibility. The
commission shall adopt uniform statewide guidelines and procedures that prescribe
how to use the form and determine financial eligibility for appointed counsel.
(3)If at any time after the appointment of counsel the court having jurisdiction of the
case finds that the defendant is financially able to obtain counsel, the court may
terminate the appointment of counsel. If at any time during criminal proceedings the
court having jurisdiction of the case finds that the defendant is financially unable to pay
counsel whom the defendant has retained, the court may appoint counsel as provided
in this section.
(4)In addition to any criminal prosecution, a civil proceeding may be initiated by any
public body that has expended moneys for the defendants legal assistance within two
years of judgment if the defendant was not qualified for legal assistance in accordance
with subsections (1) and (2) of this section. As used in this subsection, legal assistance
includes legal counsel, transcripts, witness fees and expenses and any other goods or
services required by law to be provided to a financially eligible person at state expense
under ORS 151.216 (Duties) and 151.219 (Public defense services executive director).
(5)The civil proceeding shall be subject to the exemptions from execution as provided
for by law. [1989 c.1053 §13; 1991 c.825 §6; 2001 c.962 §33]
Pennsylvania
16 P.S. § 9960.5
§ 9960.5. Personnel of office; compensation; qualification
Currentness
(a) The public defender, with the approval of the appointive body, may provide for as many full
or part time assistant public defenders, clerks, investigators, stenographers and other employes as
he may deem necessary to enable him to carry out the duties of his office. The salary board shall
fix the salary of the public defender and of the personnel authorized by this section.
(b) In lieu of, or in addition to assistant public defenders, the public defender may arrange for
and make use of the services of attorneys at law admitted to practice before the Supreme and
Superior Courts of this Commonwealth and the court of common pleas of the county or counties
in which they may serve, when such attorneys volunteer to act as assistants, without
compensation, to enable him to carry out the duties of his office.
(c) The public defender and assistant public defenders, if any, shall be attorneys at law admitted
to practice before the Supreme and Superior Courts of this Commonwealth. Residency within a
judicial district shall not be a requirement for the appointment of a public defender.
Credits
1968, Dec. 2, P.L. 1144, No. 358, § 5, effective Jan. 1, 1969.
Editors' Notes
SUSPENDED IN PART
<For purposes of delinquency proceedings, Pa.R.J.C.P. No. 800 suspends the Public Defender
Act, 1968, Dec. 2, P.L. 1144, No. 358, as amended through Act 1974, Dec. 10, P.L. 830, No.
277, § 1 (16 P.S. § 9960.1 et seq.) insofar as inconsistent with Pa.R.J.C.P. Nos. 150 and 151,
which require separate counsel if there is a conflict of interest.>
<This section is suspended by Pa.R.Crim.P., Rule 1101, 42 Pa.C.S.A., only insofar as
inconsistent with Pa.R.Crim.P., Rule 122.>
16 Pa. Stat. Ann. § 9960.5 (West)
Rhode Island
Eligibility and Intake
When there is a constitutional or statutory right to counsel, the government is required to pay the
cost of representation for anyone who does not have the resources to hire a private attorney. In
Rhode Island, there is no fixed amount of income or assets that makes someone eligible or
ineligible for public defender representation, except that persons receiving needs-based
government assistance (such as SSI, TANF, and other payments) are automatically eligible.
Financial eligibility for public defender representation depends not only on an applicant's income
and other financial resources, but also on the type of case, since fees for retained counsel vary
with the complexity of the case; a particular person might not be financially eligible for public
defender representation on a misdemeanor but be eligible if charged with a felony because
retaining counsel for felony representation is likely to cost much more than retaining counsel for
misdemeanor representation.
The public defender assesses an applicant's income and assets as well as their expenses and
liabilities (debts). We take particular account of those expenses that are necessary to basic needs,
such as food, shelter, medical costs and clothing, and to those expenses for essential activities,
such as transportation to a job or school. We also take account of debts already owed to the
justice system, such as outstanding fines, fees and restitution. An applicant need not be destitute
to be financially eligible for public defender representation. For example, someone who owns a
home will not be required to sell the house, but if the applicant has a lot of equity in the house
and the ability to obtain and pay a loan, the public defender may require that avenue to be
pursued.
All applicants are required to sign an affidavit stating they are without the resources to retain
private counsel, and do not have anyone obligated by law to pay that expense for them.
Anyone found ineligible may seek reconsideration, particularly if they make unsuccessful
attempts to retain an attorney. Sometimes, if there is a question about eligibility that cannot be
resolved by a simple interview, an applicant will be required to prove financial information with
income records, tax or property records, and similar documentation.
Intake Interviewing
Most cases come to the public defender as a result of being referred by the court in which the
charge or case is lodged. That referral usually occurs at the first appearance. Sometimes a person
may intend to retain private counsel and discover after their first court appearance that they
cannot afford to do so.
Prospective clients may request to be interviewed for financial eligibility regardless of whether
they have been referred by a court.
Intake interviews are routinely conducted at four public defender offices throughout the state: in
downtown Providence at the Garrahy Courthouse on Dorrance Street, in Warwick at the Noel
Courthouse on Quaker Lane, in Newport at the Murray Courthouse in Eisenhower Square, and in
Wakefield at the McGrath Courthouse on Tower Hill Road. Some interviewing is done at the
Licht Courthouse on Benefit Street in Providence.
Interviewing is generally done on a walk-in basis, on the following schedule:
Garrahy Courthouse: Monday-Friday, 9 am - Noon, and 2 pm - 4 pm
Noel Courthouse: Monday-Friday, 9 am - 11:30 am, and 2 pm - 4 pm
Murray Courthouse: Wednesdays, 8:30 am - 4:30 pm
McGrath Courthouse: Monday-Friday, 8:30 am - 12:30 pm, and 1:30 pm - 4:30 pm
Being interviewed at the courthouse where the charge or case is pending is most efficient, but if
that is inconvenient, a client may be interviewed anywhere in the state.
Determination of Eligibility
Eligibility is determined generally within a day or two of the intake interview by the
attorney-supervisor serving the court where the case will be heard. There are four
possible results of that review:
The applicant is found eligible. An attorney will then be assigned who will enter a
formal appearance with the appropriate court. Unless there is not sufficient time,
clients will receive a letter from their newly-assigned attorney before their next court
date. Clients are always encouraged to call 2-3 days after the interview to find out
the result.
The applicant is found financially ineligible and will be required to retain private
counsel at his or her own expense. If several attempts to retain counsel are
unsuccessful, the applicant should seek reconsideration and present whatever
documentation exists of their efforts.
The applicant is financially eligible but a conflict of interest or other reason prevents
the public defender from representing the applicant. In that event, the public
defender will notify the referring court and the court will appoint a private attorney
from a list of qualified attorneys; the client will not be charged for this
representation.
More information is needed. If this is the case, the public defender will specify what
documentation or additional information is required.
http://www.ripd.org/representation/eligible.htm
Rhode Island General Laws 12-15-9. Eligibility for assistance
Rhode Island General Laws > Title 12 > Chapter 12-15 > § 12-15-9 - Eligibility for
assistance
Current as of: 2009
Check for updates
Every person who seeks the services of the office of the public defender under this chapter
must make affidavit under oath that, after payment of necessary expenses for food, shelter and
medical care, he or she does not have sufficient income or assets to enable him or her to retain
counsel, nor is there any one to whom he or she is entitled to look for support who has that
income or assets. The public defender, on his or her own instigation or at the request of a
referring court, may require a further financial statement, may require relevant documents, and
may conduct any investigation he or she deems appropriate. If the public defender, after
examination and investigation of the financial statement, is satisfied that the person submitting
it is an indigent defendant, the public defender or one of his or her assistants shall defend the
person; provided, that if the public defender is satisfied that the person is not an indigent
defendant, he or she shall notify the court which referred the person to the public defender's
office of the determination that the person is not an indigent defendant.
South Carolina
South Carolina Code of Laws
Unannotated
Current through the end of the 2011 Session
DISCLAIMER
The South Carolina Legislative Council is offering access to the unannotated South Carolina
Code of Laws on the Internet as a service to the public. The unannotated South Carolina Code on
the General Assembly's website is now current through the 2011 session. The unannotated South
Carolina Code, consisting only of Code text, numbering, and history, may be copied from this
website at the reader's expense and effort without need for permission.
The Legislative Council is unable to assist users of this service with legal questions. Also,
legislative staff cannot respond to requests for legal advice or the application of the law to
specific facts. Therefore, to understand and protect your legal rights, you should consult your
own private lawyer regarding all legal questions.
While every effort was made to ensure the accuracy and completeness of the unannotated South
Carolina Code available on the South Carolina General Assembly's website, the unannotated
South Carolina Code is not official, and the state agencies preparing this website and the General
Assembly are not responsible for any errors or omissions which may occur in these files. Only
the current published volumes of the South Carolina Code of Laws Annotated and any pertinent
acts and joint resolutions contain the official version.
Please note that the Legislative Council is not able to respond to individual inquiries regarding
research or the features, format, or use of this website. However, you may notify Legislative
Printing, Information and Technology Systems at [email protected] regarding any
apparent errors or omissions in content of Code sections on this website, in which case LPITS
will relay the information to appropriate staff members of the South Carolina Legislative Council
for investigation.
Title 17 - Criminal Procedures
CHAPTER 3.
DEFENSE OF INDIGENTS
ARTICLE 1.
GENERAL PROVISIONS
SECTION 17-3-5. Definitions.
As used in this chapter, the term:
(1) "Commission" means the Commission on Indigent Defense.
(2) "Division of Appellate Defense" includes all attorneys and employees in the division.
(3) "Assistant public defender" means an attorney who is employed by a circuit public defender
office.
(4) "Circuit public defender" means the head of a public defender office providing indigent
defense representation within a given judicial circuit of this State.
(5) "Circuit public defender office" means the office of one of the several circuit public
defenders.
(6) "Public defender" means an attorney who is employed in a circuit public defender office or
who represents an indigent person pursuant to a contractual arrangement with a circuit public
defender office.
(7) "Administering county" means the county within each circuit with which the circuit public
defender has an agreement for the administering of indigent defense funds distributed from the
State and the counties within the circuit for the provision of indigent defender services within
each circuit.
(8) "Chief county public defender" means a public defender appointed by the circuit public
defender to assist in managing, supervising, and providing indigent defense representation in one
or more assigned counties within the circuit.
HISTORY: 2007 Act No. 108, Section 2, eff June 21, 2007.
SECTION 17-3-10. Persons entitled to counsel shall be so advised; when counsel shall be
provided.
Any person entitled to counsel under the Constitution of the United States shall be so advised
and if it is determined that the person is financially unable to retain counsel then counsel shall be
provided upon order of the appropriate judge unless such person voluntarily and intelligently
waives his right thereto. The fact that the accused may have previously engaged and partially
paid private counsel at his own expense in connection with pending charges shall not preclude a
finding that he is financially unable to retain counsel.
HISTORY: 1962 Code Section 17-281; 1969 (56) 374; 1977 Act No. 98 Section 2.
SECTION 17-3-20. Appointment of counsel for indigents charged with murder; compensation.
In the event any person who shall be charged with murder shall, after investigation by the court,
be determined to be unable financially to retain adequate legal counsel, the court shall appoint
such qualified and experienced counsel to defend such defendant in the trial of the action.
Such appointed counsel shall be paid such fee and costs as the court shall deem appropriate.
HISTORY: 1962 Code Section 17-281.1; 1974 (58) 2361.
SECTION 17-3-30. Affidavit of inability to employ counsel; payment of indigent's assets to
state; application fee; waiver or reduction of fee; disposition of fee revenues; fund for screening
applicants.
(A) A person to whom counsel has been provided shall execute an affidavit that he is financially
unable to employ counsel and that affidavit must set forth all his assets. If it appears that the
person has some assets but they are insufficient to employ private counsel, the court, in its
discretion, may order the person to pay these assets to the general fund of the State.
(B) A forty dollar application fee for public defender services must be collected from every
person who executes an affidavit that he is financially unable to employ counsel. The person may
apply to the clerk of court or other appropriate official for a waiver or reduction in the
application fee. If the clerk or other appropriate official determines that the person is unable to
pay the application fee, the fee may be waived or reduced, provided that if the fee is waived or
reduced, the clerk or appropriate official shall report the amount waived or reduced to the trial
judge upon sentencing and the trial judge shall order the remainder of the fee paid during
probation if the person is granted probation. The clerk of court or other appropriate official shall
collect the application fee imposed by this section and remit the proceeds to the state fund on a
monthly basis. The monies must be deposited in an interest-bearing account separate from the
general fund and used only to provide for indigent defense services. The monies shall be
administered by the Office of Indigent Defense. The clerk of court or other appropriate official
shall maintain a record of all persons applying for representation and the disposition of the
application and shall provide this information to the Office of Indigent Defense on a monthly
basis as well as reporting the amount of funds collected or waived.
(C) Sufficient funds shall be set aside from allocations provided for the defense of indigent to
provide for adequate screening of applications for indigent assistance to ensure the applicant is
qualified.
HISTORY: 1962 Code Section 17-282; 1969 (56) 374; 1977 Act No. 219 Pt II Section 19; 1988
Act No. 356, Section 1; 1993 Act No. 164, Part II, Section 45E; 1994 Act No. 497, Part I, E23Section 14; 1995 Act No. 145, Part IB, E23-Section 14; 1996 Act No. 458, Part II, Section 26B;
1999 Act No. 100, Part II, Section 17; 2007 Act No. 108, Section 4, eff June 21, 2007.
SECTION 17-3-40. Creation of claim against assets and estate of person for whom counsel is
provided.
(a) The appointment of counsel, as hereinbefore provided, creates a claim against the assets and
estate of the person who is provided counsel in an amount equal to the costs of representation as
determined pursuant to Sections 17-3-50 and 17-3-80, less that amount that the person pays to
the defender corporation of the county or counties wherein he is being represented or the judicial
department as provided for in Section 17-3-30.
(b) Such claim shall be filed in the office of the clerk of court in the county where the person is
assigned counsel, but the filing of a claim shall not constitute a lien against real or personal
property of the person unless, in the discretion of the court, part or all of such claim is reduced to
judgment by appropriate order of the court, after serving the person with at least thirty days'
notice that judgment will be entered. When a claim is reduced to judgment, it shall have the same
effect as judgments, except as modified by this chapter.
(c) The court may, in its discretion, order any claim or judgment waived, modified or withdrawn.
(d) The Judicial Department shall be responsible for administering this section, and all moneys
collected hereunder shall be paid over to the Judicial Department.
HISTORY: 1962 Code Section 17-283; 1969 (56) 374; 1977 Act No. 219 Part II Section 19;
1988 Act No. 356, Section 2.
SECTION 17-3-45. Affidavit of assets of persons seeking appointed counsel; application fee;
claim against assets and estate of person provided counsel.
(A) A person to whom counsel has been provided in any court in this State shall execute an
affidavit that the person is financially unable to employ counsel and that affidavit shall set forth
all of the person's assets. If it appears that the person has some assets but they are insufficient to
employ private counsel, the court, in its discretion, may order the person to pay these assets or a
portion thereof to the Office of Indigent Defense.
(B) A forty dollar application fee for appointed counsel services must be collected from every
person who executes an affidavit that they are financially unable to employ counsel. The person
may apply to the court, the clerk of court, or other appropriate official for a waiver or reduction
in the application fee. If it is determined that the person is unable to pay the application fee, the
fee may be waived or reduced, provided that if the fee is waived or reduced, the clerk or
appropriate official shall report the amount waived or reduced to the trial judge and the trial
judge shall order the remainder of the fee paid during probation if the person is granted probation
or by a time payment method if probation is not granted or appropriate. The clerk of court or
other appropriate official shall collect the application fee imposed by this section and remit the
proceeds to the Public Defender Application Fund on a monthly basis. The monies must be
deposited in an interest-bearing account separate from the general fund and used only to provide
for indigent defense services. The monies shall be administered by the Office of Indigent
Defense. The clerk of court or other appropriate official shall maintain a record of all persons
applying for representation and the disposition of the application and shall provide this
information to the Office of Indigent Defense on a monthly basis as well as reporting the amount
of funds collected or waived.
(C) In matters in which a juvenile is brought before a court, the parents or legal guardian of such
juvenile shall execute the above affidavit based upon their financial status and shall be
responsible for paying any fee. In juvenile matters, the parents or legal guardians of the juvenile,
must be advised in writing of this requirement at the earliest stage of the proceedings against the
juvenile.
(D) Nothing contained in this section restricts or hinders a court from appointing counsel in any
emergency proceedings or where there is not sufficient time for an individual to complete the
application process.
(E) The appointment of counsel creates a claim against the assets and estate of the person who is
provided counsel or the parents or legal guardians of a juvenile in an amount equal to the costs of
representation as determined by a voucher submitted by the appointed counsel and approved by
the court, less that amount that the person pays either to the appointed counsel or defender
corporation of the county or counties where he is represented or to the Office of Indigent
Defense. The claim shall be filed in the office of the clerk of court in the county where the
person is assigned counsel, but the filing of a claim shall not constitute a lien against real or
personal property of the person unless, in the discretion of the court, part or all of such claim is
reduced to judgment by appropriate order of the court, after serving the person with at least thirty
days' notice that judgment will be entered. When a claim is reduced to judgment, it shall have the
same effect as judgments, except as modified by this chapter.
(F) The court may, in its discretion, order any claim or judgment waived, modified, or
withdrawn.
HISTORY: 2008 Act No. 353, Section 2, Pt 23I, eff July 1, 2009.
SECTION 17-3-50. Determination of fees for appointed counsel and public defenders;
maximum amounts; authorization to exceed maximum; payment for certain services.
(A) When private counsel is appointed pursuant to this chapter, he must be paid a reasonable fee
to be determined on the basis of forty dollars an hour for time spent out of court and sixty dollars
an hour for time spent in court. The same hourly rates apply in post-conviction proceedings.
Compensation may not exceed three thousand five hundred dollars in a case in which one or
more felonies is charged and one thousand dollars in a case in which only misdemeanors are
charged. Compensation must be paid from funds available to the Office of Indigent Defense for
the defense of indigents represented by court-appointed, private counsel. The same basis must be
employed to determine the value of services provided by the office of the public defender for
purposes of Section 17-3-40.
(B) Upon a finding in ex parte proceedings that investigative, expert, or other services are
reasonably necessary for the representation of the defendant, the court shall authorize the
defendant's attorney to obtain such services on behalf of the defendant and shall order the
payment, from funds available to the Office of Indigent Defense, of fees and expenses not to
exceed five hundred dollars as the court considers appropriate.
(C) Payment in excess of the hourly rates and limits in subsection (A) or (B) is authorized only if
the court certifies, in a written order with specific findings of fact, that payment in excess of the
rates is necessary to provide compensation adequate to ensure effective assistance of counsel and
payment in excess of the limit is appropriate because the services provided were reasonably and
necessarily incurred.
(D) Nothing in this section shall be construed to alter the provisions of Section 17-3-10
concerning those defendants who are entitled to legal representation.
HISTORY: 1962 Code Section 17-284; 1969 (56) 374; 1993 Act No. 164, Part II,Section 45F;
2007 Act No. 108, Section 5, eff June 21, 2007.
SECTION 17-3-55. Carry-forward of unpaid obligations.
Notwithstanding any other provision of law, the Commission on Indigent Defense is authorized
to carry forward unpaid obligations incurred and received for payment in one fiscal year and to
pay, to the extent possible, these obligations from funds appropriated in the next year's budget.
HISTORY: 2008 Act No. 353, Section 2, Pt 23H, eff July 1, 2009.
SECTIONS 17-3-60, 17-3-70. Repealed by 2007 Act No. 108, Section 9, eff June 21, 2007.
SECTIONS 17-3-60, 17-3-70. Repealed by 2007 Act No. 108, Section 9, eff June 21, 2007.
SECTION 17-3-80. Appropriation for expenses of appointed private counsel and public
defenders; restrictions and limitations.
In addition to the appropriation as provided by law, there is appropriated for the fiscal
year commencing July 1, 1969, the sum of fifty thousand dollars for the establishment of
the defense fund which must be administered by the Office of Indigent Defense. This fund
must be used to reimburse private-appointed counsel, public defenders, and assistant
public defenders for necessary expenses, not to exceed two thousand dollars for each case,
actually incurred in the representation of persons pursuant to this chapter, so long as the
expenses are approved by the trial judge. No reimbursement may be made for travel
expenses except extraordinary travel expenses approved by the trial judge. The total state
funds provided by this section may not exceed fifty thousand dollars.
HISTORY: 1962 Code Section 17-287; 1969 (56) 374; 1977 Act No. 219 Pt II Section 19;
1987 Act No. 142 Section 1; 1993 Act No. 164, Part II, Section 45G.
SECTION 17-3-85. Fiscal year-end disposition of unexpended appropriations for payment
of private appointed counsel for counties without public defender corporations.
At the end of each fiscal year all funds appropriated for counties without public defender
corporations which have not been exhausted shall be combined into one fund and any and
all claims of private appointed counsel in other counties remaining unpaid by virtue of the
exhaustion of appropriated funds in those respective counties shall be paid on a pro rata
basis until such fund is exhausted or until all claims are satisfied. After payment of the
above, any funds remaining at the end of a fiscal year maintained by the Judicial
Department shall revert to the general fund of the State at the end of that fiscal year.
HISTORY: 1982 Act No. 466, Part II Section 43.
SECTION 17-3-90. Vouchers for payment for services by private appointed counsel and
for reimbursement of expenses; approval and submission for payment.
Private, appointed counsel shall submit a voucher to the Office of Indigent Defense setting
forth all details of the appointment for purposes of remuneration pursuant to Section 17-350 and reimbursement of expenses pursuant to Section 17-3-80, and the public defender
shall do likewise pursuant to Section 17-3-80. It is the duty of the Office of Indigent Defense
to present the voucher to the trial judge for approval and to transmit the same to the
Comptroller General for payment to the appropriate party.
HISTORY: 1962 Code Section 17-288; 1969 (56) 374; 1977 Act No. 219 Pt II Section 19;
2007 Act No. 108, Section 6, eff June 21, 2007.
SECTION 17-3-100. Discretionary authority of judge to appoint counsel is not limited;
remuneration and reimbursement.
Nothing herein contained is designed to limit the discretionary authority of a judge to
appoint counsel in any case and any such counsel shall be entitled to remuneration and
reimbursement as provided in Sections 17-3-50 and 17-3-80 hereof, so long as funds
appropriated herein are available therefor.
HISTORY: 1962 Code Section 17-289; 1969 (56) 374.
SECTION 17-3-110. Power of Supreme Court to establish rules and regulations.
The Supreme Court of South Carolina is hereby empowered to establish such rules and
regulations as are necessary for the proper administration of this chapter.
HISTORY: 1962 Code Section 17-290; 1969 (56) 374.
ARTICLE 3.
COMMISSION ON INDIGENT DEFENSE
SECTION 17-3-300. Omitted by 2007 Act No. 108, Section 7, eff June 21, 2007.
Former Section 17-3-300 was entitled "Definitions" and was derived from 2005 Act No.
103, Section 2, eff July 1, 2005.
SECTION 17-3-310. Commission created; appointment of members; terms; powers and
duties.
(A) There is created the Commission on Indigent Defense consisting of thirteen members.
(B) Nine members shall be appointed by the Governor as follows:
(1) One member from each of the four judicial regions of the State appointed upon
recommendation of the South Carolina Public Defender Association. Members shall serve
for terms of four years and until their successors are appointed and qualify. Vacancies
must be filled in the manner of original appointment for the unexpired portion of the term.
A person may not be appointed to the commission pursuant to the provisions of this item
or, once appointed pursuant to the provisions of this item, may not continue to serve on the
commission unless the person is a public defender.
(2) A member of the South Carolina Bar whose practice is principally in family law,
appointed upon recommendation by the South Carolina Bar membership for a term of two
years and who may be reappointed.
(3) Two members of the South Carolina Bar whose practice is principally in criminal
defense law, appointed upon recommendation of the South Carolina Bar membership, who
shall serve for a term of two years and may be reappointed.
(4) Two members of the South Carolina Bar whose practice is principally neither criminal
defense nor family law, appointed upon recommendation of the South Carolina Bar
membership, who shall serve for two-year terms and who may be reappointed.
(C) The remaining four members must be appointed as follows:
(1) two members appointed by the Chief Justice of the South Carolina Supreme Court, one
of whom must be a retired circuit court judge and one of whom must be either a retired
family court judge or a retired appellate court judge, each of whom shall serve for a term
of four years and until a successor is appointed and qualifies; and
(2) the Chairmen of the Senate and House Judiciary Committees, or their legislative
designees, for the terms for which they are elected.
(D) The chairman must be elected by the commission from its membership and shall serve
for a term of two years. A chairman may be re-elected.
(E) Members currently serving as of July 1, 2005, shall continue to serve until the
expiration of their term and may be reappointed as provided in subsection (B)(1).
(F) The commission may adopt an appropriate seal and promulgate regulations consistent
with the provisions of this article to govern its operations and procedures and shall
supervise the operations of the Office of Indigent Defense including all the divisions of the
office.
(G) The commission:
(1) may establish divisions within the office to administer the services and programs as it
considers necessary to fulfill the purposes of this article;
(2) shall develop rules, policies, procedures, regulations, and standards as it considers
necessary to carry out the provisions of the article and comply with state law or regulations
and the rules of the Supreme Court, including the nature and scope of services to be
provided, the clientele to be served, and the establishment of criteria to be used in the
determination of indigency and qualifications for services for indigent legal representation;
(3) shall cooperate and consult with state agencies, professional associations, and other
groups concerning the causes of criminal conduct, the rehabilitation and correction of
persons charged with and convicted of crimes, the administration of criminal justice, and
the improvement and expansion of defender services;
(4) shall assist the public defenders throughout the State in their efforts to provide
adequate legal defense to the indigent. This assistance includes, but is not limited to:
(a) the preparation and distribution of a basic defense manual and other educational
materials;
(b) the preparation and distribution of model forms and documents employed in indigent
defense;
(c) the promotion of and assistance in the training of indigent defense attorneys;
(d) the provision of legal research assistance to public defenders; and
(e) the provision of other assistance to public defenders as may be authorized by law;
(5) shall collect, maintain, review, and publish records and statistics for the purpose of
evaluating the delivery of indigent defense representation in the State; and
(6) shall have the authority to negotiate and enter into contracts, as appropriate, with
independent counsel for the provision of indigent defense services in cases in which a
conflict of interest exists in a public defender office and in other cases in which indigent
representation by independent counsel is necessary or advisable. This authority may be
delegated by the commission to a circuit public defender, but is at all times subject to
standards established by the commission.
(7) The commission shall establish and administer the rules and procedures for selection of
members to serve on the Circuit Public Defender Selection Panels, and shall establish the
rules and procedures under which the selection panels shall operate.
HISTORY: 1993 Act No. 164, Part II, Section 45C; 2005 Act No. 103, Section 2, eff July 1,
2005; 2007 Act No. 108, Section 7, eff June 21, 2007.
SECTION 17-3-320. Office of Indigent Defense; executive director; appointment; duties.
(A) There is created the Office of Indigent Defense under the jurisdiction of the
commission. The office must be administered by an executive director appointed by the
commission. The executive director may hire other administrative, clerical, and legal staff
and is authorized to contract with outside consultants on behalf of the office as he considers
necessary to provide the services as required pursuant to the provisions of this article.
(B) The executive director shall:
(1) administer and coordinate the operations of the office and all divisions within the office
and supervise compliance among the circuit defender offices with rules, procedures,
regulations, and standards adopted by the commission;
(2) maintain proper records of all financial transactions related to the operation of the
office;
(3) coordinate the services of the office with any federal, county, private, or other programs
established to provide assistance to indigent persons entitled to representation pursuant to
the provisions of this chapter and consult with professional organizations concerning the
implementation and improvement of programs for providing indigent services;
(4) prepare and submit annually to the commission a proposed budget for the provision of
statewide indigent defense services; and prepare and submit an annual report containing
pertinent data on the operations, costs, and needs of the state's indigent defense system and
other information as the commission may require;
(5) coordinate in the development and implementation of rules, policies, procedures,
regulations, and standards adopted by the commission to carry out the provisions of this
chapter and comply with all applicable laws and standards;
(6) maintain proper records of all financial transactions related to the operation of the
commission;
(7) apply for and accept on behalf of the commission funds that may become available from
any source, including government, nonprofit, or private grants, gifts, or bequests;
(8) provide for the training of attorneys and other staff involved in the legal representation
of persons subject to the provisions of this chapter;
(9) attend all commission meetings, except those meetings or portions of the meetings that
address the question of appointment or removal of the director;
(10) ensure that the expenditures of the commission are not greater than the amounts
budgeted or available from other revenue sources; and
(11) perform other duties as the commission assigns.
HISTORY: 1993 Act No. 164, Part II, Section 45C; 2005 Act No. 103, Section 2, eff July 1,
2005; 2007 Act No. 108, Section 7, eff June 21, 2007.
SECTION 17-3-330. Duties of Office of Indigent Defense.
(A) The Office of Indigent Defense shall:
(1) serve as the entity which distributes all funds appropriated by the General Assembly for
the defense of indigents, including funds allocated to public defender offices pursuant to
the formula, funds for the defense of capital cases, funds for attorney's fees and expenses in
non-capital cases, and other funds appropriated for these purposes;
(2) perform those functions provided pursuant to Section 17-3-360;
(3) serve as a resource for the compilation of accurate statistical data covering the indigent
defense system in this State;
(4) implement other duties the commission may direct; and
(5) report annually to the General Assembly on the indigent defense system.
(B) On or about June thirtieth of each year, if the Office of Indigent Defense determines,
after taking into consideration all outstanding obligations against the fund for payment of
attorney fees and expenses in non-capital cases, that unexpended funds remain, these funds
shall be rolled over into the fund for payment of attorney's fees and expenses in capital
cases; provided, however, this shall occur only in the event the funds in the capital fund
have been exhausted at that time. This fund shall at no time exceed three million dollars.
(C) Notwithstanding another provision of law, only attorneys who are licensed to practice
in this State and residents of this State may be appointed by the court and compensated
with funds appropriated to the Death Penalty Trial Fund in the Office of Indigent Defense.
HISTORY: 1993 Act No. 164, Part II, Section 45C; 1994 Act No. 497, Part I, E23-Section
14; 1995 Act No. 145, Part IB, E23-Section 14; 1996 Act No. 458, Part II, Section 26C; 2005
Act No. 103, Section 2, eff July 1, 2005; 2007 Act No. 108, Section 7, eff June 21, 2007.
SECTION 17-3-340. Duties of commission.
(A) All members of the commission shall at all times act in the best interest of indigent
defendants who are receiving legal representation pursuant to the provisions of this
chapter.
(B) All members of the commission are entitled to vote on all matters before the
commission unless otherwise provided by law or by rules adopted by the commission
concerning conflicts of interest.
(C) Each member of the commission shall serve until a successor has been appointed.
Removal of commission members is for cause and must be in accordance with policies and
procedures adopted by the commission.
(D) Unless otherwise provided in this article, a quorum is a majority of the members of the
commission who are currently serving in office, and decisions of the commission are
determined by majority vote of the members present, except that a majority of the entire
commission must approve the appointment or removal of a circuit public defender or the
executive director for cause.
(E) The commission shall meet at least quarterly and at other times and places as it deems
necessary or convenient for the performance of its duties and shall keep and maintain
minutes of all commission meetings.
(F) The commission shall elect such officers, other than the chairperson, from the members
of the commission as it deems necessary and shall adopt rules for the transaction of its
business as it desires. Elected officers shall serve for a term of one year and may be
removed without cause by a vote of two-thirds of the members of the entire commission
and for cause by a majority vote of the entire commission. The chairperson shall retain a
vote on all matters except those in which the chairperson has a conflict of interest.
(G) The members of the commission shall receive no compensation for their services but
will be reimbursed for their actual expenses incurred in the performance of their duties as
members of the commission. Expenses incurred by the commission must be paid from the
general operating budget of the commission.
(H) The commission shall approve the development and improvement of programs which
provide legal representation to indigent persons and juveniles accused of violations of
criminal law.
(I) The commission shall approve and implement programs, services, rules, policies,
procedures, regulations, and standards as may be necessary or advisable to fulfill the
purposes and provisions of this article in the delivery of indigent services. This includes,
but is not limited to, standards for:
(1) maintaining and operating circuit public defender offices, including requirements
regarding qualifications, training, and size of the legal and support staff of the offices and
access to data and records, including business records, in each circuit public defender
office;
(2) prescribing minimum experience, training, and other qualifications for appointed
counsel where a conflict of interest arises between the public defender and an indigent
person;
(3) public defender and appointed counsel caseloads;
(4) the qualifications, employment, and compensation of public defenders and other circuit
public defender office personnel, based on job description, education, training, and
experience;
(5) the performance of public defenders and appointed counsel representing indigent
persons;
(6) procedures for prescribing qualifications and performance of independent counsel
representing indigent persons in both trial and appellate courts, whether by contract or
court appointment;
(7) providing and compensating experts, investigators, and other persons who provide
services necessary for the effective representation of indigent persons;
(8) determining indigence and for assessing and collecting the costs of legal representation
and related services;
(9) compensation of attorneys appointed to represent indigent persons pursuant to this
chapter;
(10) removing a circuit public defender for cause;
(11) a uniform definition of a "case" for purposes of determining caseload statistics; and
(12) accepting contractual indigent defense representation.
HISTORY: 2005 Act No. 103, Section 2, eff July 1, 2005; 2007 Act No. 108, Section 7, eff
June 21, 2007.
SECTION 17-3-350. Immunity.
The members of the commission and the Circuit Public Defender Selection Panel and other
policy-making or administrative personnel acting in a policy-making or administrative
capacity in connection with the commission or the panel are not subject to civil liability
resulting from an act or failure to act in the implementation and carrying out of the
purposes of this chapter.
HISTORY: 2005 Act No. 103, Section 2, eff July 1, 2005; 2007 Act No. 108, Section 7, eff
June 21, 2007.
SECTION 17-3-360. Division of Appellate Defense created; administration and staffing;
duties and responsibilities.
(A) There is created within the Office of Indigent Defense, the Division of Appellate
Defense. All of the allied, advisory, affiliated, or related entities as well as the employees,
funds, property, and all contractual rights and obligations associated with the commission
and Office of Appellate Defense formerly provided in Chapter 4, Title 17 are transferred to
and incorporated in and must be administered as part of the Office of Indigent Defense.
(B) The division must be administered by a chief attorney. The staff of the division shall
consist of additional attorneys and administrative, investigative, secretarial, and clerical
employees necessary to discharge the duties of the division. No person may be hired to
serve as an attorney who is not licensed to practice law in this State. Attorneys employed by
the division shall devote full time to their duties and may not engage in the private practice
of law.
(C) The division shall carry out the following duties and responsibilities:
(1) It shall represent a person who the office determines, subject to court review, falls
within the guidelines promulgated pursuant to Section 17-3-310(G)(2) who files Notice of
Intention to Appeal or desires to appeal a conviction in a trial court, or decision of a
proceeding in civil commitment or other voluntary placement in a state, county, or
municipal facility. A person desiring representation by the division shall request a
determination of his indigency status in writing from the Supreme Court, the court of
appeals, the circuit or family court, or the division. A court receiving a request for indigent
appellate representation shall forward the request to the office who, within ten days of the
receipt of the request for representation, shall notify the person requesting representation
and the court in which the appeal will be effected of its decision.
(2) Upon a finding that a person requesting representation qualifies as an indigent and
after being appointed as counsel for this person by the court in which the appeal will be
effected, the division shall represent this person in his appeal of a conviction in a trial
court, or decision of a proceeding in civil commitment or other involuntary placement in a
state, county, or municipal facility, provided nothing in this article requires the division to
pursue an appeal unless the chief attorney of the division is first satisfied that there is
arguable merit to the appeal.
(3) It shall represent indigents, other than at trial or commitment proceedings when
appointed by the court.
(4) It shall represent indigents in appeals of convictions in trial courts of this State, or
decisions of civil commitment proceedings or other involuntary placement only in courts of
this State.
HISTORY: 2005 Act No. 103, Section 2, eff July 1, 2005; 2007 Act No. 108, Section 7, eff
June 21, 2007.
SECTION 17-3-370. Appointment of counsel by court.
The provisions of this article shall not restrict a court in which an appeal is to be effected,
from appointing counsel for indigent persons when the division is disqualified from
representation for reasons of conflict or when the division deems it advisable that it not
provide representation for the indigent person.
HISTORY: 2007 Act No. 108, Section 7, eff June 21, 2007.
SECTION 17-3-380. Funding.
The commission will be funded by appropriations to the commission in the state General
Appropriations Act including federal funds as may be available.
HISTORY: 2007 Act No. 108, Section 7, eff June 21, 2007.
ARTICLE 5.
CIRCUIT PUBLIC DEFENDERS
SECTION 17-3-510. Circuit Public Defender Selection Panel; county representation;
nomination of Circuit Public Defender; election by South Carolina Prosecution
Coordination Commission.
(A) There is created in each judicial circuit in the State a Circuit Public Defender Selection
Panel, the membership of which is composed of, and must be elected by, the active, licensed
attorneys who reside within the counties of each judicial circuit. Each county in each
judicial circuit must be represented by at least one member and the remaining members
must be determined by equal weighting of county population based on the most recent
decennial census and the most recent annual county appropriations to public defender
operations according to the following formula:
(1) percentage of distribution of population plus the percentage of distribution of
appropriations for public defender operations divided by two and rounded to the nearest
whole number;
(2) the weighted values of each county multiplied by the number of remaining members in
each Circuit Public Defender Selection Panel determines the number of additional
members each county must have on the panel.
Judicial circuits with three or less counties must have five members. Judicial circuits with
four counties must have seven members. Judicial circuits with five counties must have nine
members.
(B) A solicitor, assistant solicitor, an employee of a solicitor's office, or an employee of the
South Carolina Prosecution Coordination Commission may not serve as a member of a
Circuit Public Defender Selection Panel. Members of a Circuit Public Defender Selection
Panel must reside in the judicial circuit in which they serve. Circuit Public Defender
Selection Panel members shall serve for a term of five years. A vacancy for an appointed
member must be in the same manner of the original appointment filled by the appointing
authority.
(C) By majority vote of its membership, the Circuit Public Defender Selection Panel shall
nominate a person to serve as the circuit public defender in the judicial circuit as provided
in this article. The commission shall, by majority vote of its members, accept or reject the
nomination, but may not substitute the name of another person. Initial appointments of
circuit public defenders must be made in order for the first appointees to take office no
later than one year from the effective date of this act, for a term of four years. A circuit
public defender may be reappointed by the commission to serve successive terms following
the same manner of the original appointment. The circuit public defender for each judicial
circuit must be a full-time employee of the State and must be compensated and have the
same benefits as the circuit solicitor. A circuit public defender may not engage in the
private practice of law or another full-time business for profit.
(D) A circuit public defender may be removed for cause by a majority vote of the
commission.
(E) If a vacancy occurs, by death, resignation, or otherwise, in the position of circuit public
defender, the commission shall appoint an interim circuit public defender to serve until a
replacement has been selected by the commission. The Circuit Public Defender Selection
Panel shall nominate a replacement circuit public defender within three months of the
occurrence of the vacancy. Selection of a replacement must be in the same manner as the
original appointment.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-520. Circuit public defender; qualifications; responsibilities.
(A) In order for a person to be eligible to fill the position of circuit public defender, the
person must:
(1) be at least twenty-five years of age;
(2) have been admitted and licensed to practice law in all courts of the State for at least five
years;
(3) be a member in good standing of the South Carolina Bar, at all times; and
(4) be competent to counsel and defend a person charged with a capital felony and be
certified at all times to defend capital cases in the State.
(B) A circuit public defender is responsible for:
(1) administering and coordinating the day-to-day operations of their respective offices,
supervising the public defenders and other staff serving in the offices, and actively
participating in the representation of clients throughout the judicial circuit;
(2) keeping and maintaining appropriate records, which includes:
(i) the number of persons represented pursuant to the provisions of this chapter, including
cases assigned to other attorneys because of conflicts of interest;
(ii) the offenses charged; the outcome of each case; the expenditures made in carrying out
the duties imposed by this article; and
(iii) other information and data as the commission may from time to time require;
(3) establishing a juvenile offender division within the circuit public defender office to
specialize in the criminal defense of juveniles;
(4) preparing and submitting annually to the executive director of the commission a
proposed budget for the provision of circuit-wide indigent defense services, an annual
report containing pertinent data on the operation, costs, and needs of the circuit defender
office, and other information as the commission or executive director may require;
(5) assisting the commission in establishing the state system and establishing the standards,
policies, and procedures required pursuant to the applicable provisions of Section 17-3310;
(6) developing and presenting for the commission's approval a circuit plan for the delivery
of criminal indigent defense services;
(7) establishing processes and procedures consistent with commission standards to ensure
that when a case that is assigned to the office presents a conflict of interest for a public
defender, the conflict is identified and handled appropriately and ethically;
(8) negotiating and entering into contracts, as appropriate and when authorized by the
commission, with independent counsel actively practicing within the circuit for the
provision of indigent defense services in cases in which a conflict of interest exists in the
circuit public defender office and in other criminal cases in the circuit in which indigent
defense representation by independent counsel is necessary or advisable;
(9) establishing processes and procedures consistent with commission standards to ensure
that office and contract personnel use information technology and caseload management
systems so that detailed expenditure and caseload data is accurately collected, recorded,
and reported;
(10) establishing administrative management procedures for circuit and county offices;
(11) establishing procedures in conformity with commission standards for managing
caseloads and assigning cases in a manner that ensures that public defenders are assigned
cases according to experience, training, and manageable caseloads and taking into account
case complexity, the severity of the charges, potential punishments, and the legal skills
required to provide effective assistance of counsel;
(12) establishing policies and procedures consistent with commission standards and
Supreme Court Rules for assigning counsel for indigent persons in capital cases;
(13) establishing and supervising consistent commission standards, a training and
performance evaluation program for attorneys and non-attorney staff members and
contractors;
(14) establishing procedures consistent with commission standards to handle complaints
involving indigent defense performance and to ensure that public defenders, office
personnel, contract and appointed attorneys and clients are aware of avenues available for
bringing a complaint and that office procedures do not conflict with the rules and
disciplinary jurisdiction of the South Carolina Supreme Court; and
(15) performance of other duties assigned by the commission.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-530. Chief county public defenders; responsibilities and duties.
(A) Each circuit public defender may employ, assign, and supervise one or more chief
county public defenders in the counties within the circuit to assist in managing,
supervising, and providing indigent defense representation in the circuit.
(B) Each chief county public defender must be responsible for:
(1) managing, supervising, and providing public defender services within the assigned
county or counties;
(2) performing other duties as assigned by the circuit public defender, including duties that
may be assigned throughout the circuit; and
(3) keeping a record of public defender and associated services and expenses in the assigned
county or counties and submitting the records to the circuit public defender as requested.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-540. Maintenance and staffing of county public defender offices.
(A) Subject to the provisions of this section, the circuit public defender in each judicial
circuit may maintain offices and employ chief county public defenders, assistant public
defenders, investigators, and other staff as necessary to provide adequate and meaningful
representation of indigent clients within the counties of the judicial circuit. Personnel
employed pursuant to the provisions of this section serve at the pleasure of the circuit
public defender and have responsibilities as the circuit public defender directs.
(B) These employees are employees of the administering county and entitled to the same
fringe benefits as other personnel employed by the administering county. All personnel
costs including fringe benefits must be paid by the administering county, but must be
reimbursed to the administering county from operational funds provided to the circuit
public defender office from county and state appropriated funds.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-550. Funding.
No county may appropriate funds for public defender operations in a fiscal year below the
amount it funded in the immediate previous fiscal year.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-560. Administration of funds.
Each circuit public defender shall expend the funds received from the counties in the
circuit, the State, and other sources for the general operations of the circuit defenders
office including reimbursement to the administering county for employee compensation
and fringe benefits. Each circuit public defender shall enter into an agreement with the
appropriate county within the judicial circuit to administer the funds provided pursuant to
the provisions of this article and the funds must be directed to the administering county.
The administering county shall account for the receipt and disbursement of the funds
separately from other funds administered by the county.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-570. Administration of personnel.
(A) All public defenders and other personnel employed by a county public defender
corporation on a full-time or a part-time basis are considered employees of the circuit
public defenders office in the judicial circuit in which they serve. No employee currently
employed pursuant to the provisions of this section may be terminated, except for cause for
a period of one year from the effective date of employment by the circuit public defender
office. No employee salaries and benefits, including accrued leave, may be less than that
which the employee is earning as of the effective date of employment by the circuit public
defender office.
(B) Each circuit public defender is authorized to employ administrative, clerical, and
paraprofessional personnel as may be authorized by the commission based on funds
appropriated by the General Assembly or otherwise available provided, however, that each
circuit public defender is authorized not less than two positions as provided in this section.
In authorizing administrative, clerical, and paraprofessional personnel, the commission
shall consider the caseload, present staff, and resources available to each circuit public
defender and shall make authorizations as will contribute to the efficiency of individual
circuit public defenders in providing effective criminal defense for indigent defendants.
(C) All personnel employed by the circuit public defenders pursuant to this article shall be
employees of the administering county and shall be compensated based on the unclassified
service schedule of the South Carolina Merit System of Personnel Administration.
(D) Personnel employed by the circuit public defenders pursuant to this article shall have
the authority, duties, powers, and responsibilities as are authorized by law or as assigned
by the circuit public defender and shall serve at the pleasure of the circuit public defender.
(E) The circuit public defender shall fix the compensation of each state-paid employee
appointed pursuant to this article in accordance with the class to which the person is
appointed and the appropriate step of the salary schedule. All salary advancements must
be based on quality of work, training, and performance. A reduction in salary must be
made in accordance with the salary schedule for the position and the policies, rules, or
regulations adopted by the commission.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-580. Public defenders; requirements as to employment.
(A) A public defender employed full-time by the circuit public defender shall not engage in
the private practice of law for profit.
(B) A public defender employed by the circuit public defender must be a member of the
South Carolina Bar and must be admitted to practice before all courts of this State.
(C) A public defender shall serve at the pleasure of the circuit public defender and shall
have the authority, powers, and duties as assigned by the circuit public defender.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-590. Office space and equipment.
The governing body of the county shall provide, in conjunction and cooperation with the
other counties in the judicial circuit and in a pro rata share according to the population of
each county, appropriate offices, utilities, telephone expenses, materials, and supplies as are
necessary to equip, maintain, and furnish the office or offices of the circuit public defender
in an orderly and efficient manner.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
SECTION 17-3-600. Existing contracts for providing indigent defense services.
All contracts in force on the date this legislation is effective between private attorneys and
county indigent defense corporations for the provision of indigent defense services within a
county or counties shall remain in force and be recognized by the commission and circuit
public defender offices until their respective expiration dates or one year from the effective
date of this act, whichever is earlier.
HISTORY: 2007 Act No. 108, Section 3, eff June 21, 2007.
South Dakota
Having Trouble finding this one.
I think it’s county by county.
See
The Minnehaha Public Defender is a law office established in 1981, and officially opened in
January of 1982. The office is funded by the county of Minnehaha, and employs twenty-one
lawyers, four paralegals, and five legal office assistants. The office also utilizes the services of
third year law students from the University of South Dakota School of Law participating in the
Law Student Defender Program.
http://www.minnehahacounty.org/dept/pd/services.aspx
Tennessee
2010 Tennessee Code
Title 8 - Public Officers And Employees
Chapter 14 - Public Defenders
Part 2 - District Public Defenders and Investigators
8-14-204 - District public defender Duties.
More Sharing ServicesShare |
8-14-204. District public defender Duties.
(a) The district public defender has the duty and responsibility of representing indigent persons
for whom the district public defender has been appointed as counsel by the court. Either
personally or through an assistant district public defender, the district public defender shall
counsel with the accused and represent such accused in the trial court. If the accused is aggrieved
by the judgment of the trial court imposing a sentence of imprisonment, or dismissing a habeas
corpus or post-conviction petition, the district public defender shall advise such accused fully
concerning rights of appellate review.
(b) If the accused desires to appeal to an appellate court, the district public defender shall
seasonably take all steps necessary to perfect the appeal, including a new trial motion when
required and the filing of all essential transcripts and records with the clerk of the appellate court.
(c) The district public defender has the duty and responsibility of handling all appeals filed by
an indigent person represented in the trial courts of this state.
(d) At such times and in such form and manner as may be directed by the secretary of the
judicial council, each executive director of the district public defenders conference shall submit
reports reflecting the number, kind, status and disposition of all cases and proceedings.
[Acts 1989, ch. 588, § 4; 1990, ch. 751, §§ 1, 2; 1996, ch. 610, § 4.]
Disclaimer: These codes may not be the most recent version. Tennessee may have more current
or accurate information. We make no warranties or guarantees about the accuracy, completeness,
or adequacy of the information contained on this site or the information linked to on the state
site. Please check official sources.
Texas
http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx?cid=255
Each county has different standards. I have seen the range from 100% Federal Poverty to 150%, among other criteria used
(including strict monetary income standards of $1000 per month, assets below $2,500, etc). This is county specific.
UtahDoes not have a statewide system.
All funding is delegated to counties.
150% at/below poverty level.
U.C.A. 1953 § 77-32-301
§ 77-32-301. Minimum standards for defense of an indigent
(1) Each county, city, and town shall provide for the legal defense of an indigent in criminal
cases in the courts and various administrative bodies of the state in accordance with legal
defense standards as defined in Subsection 77-32-208(8).
(2)(a) A county or municipality which contracts with a defense services provider shall provide
that all legal defense elements be included as a single package of legal defense services made
available to indigents, except as provided in Sections 77-32-302 and 77-32-303.
(b) When needed to avoid a conflict of interest between:
(i) trial counsel and counsel on appeal, a defense services provider contract shall also provide
for separate trial and appellate counsel; and
(ii) counsel for co-defendants, a defense services provider contract shall also provide for
separate trial counsel.
(c) If a county or municipality contracts to provide all legal defense elements as a single
package, a defendant may not receive funding for defense resources unless represented by
publicly funded counsel or as provided in Subsection 77-32-303(2).
Indigent means:
U.C.A. 1953 § 77-32-202
§ 77-32-202. Procedure for determination of indigency--Standards
(1) A determination of indigency or continuing indigency of any defendant may be made by the
court at any stage of the proceedings.
(2)(a) Any defendant claiming indigency who is charged with a crime the penalty of which is a
class A misdemeanor or serious offense shall file with the court a fully complete affidavit verified
by a notary or other person authorized by law to administer an oath and file a copy of that
affidavit with the prosecuting entity. The affidavit shall contain the factual information required in
this section and by the court.
(b) A defendant claiming indigency who is charged with a crime the penalty of which is less than
a class A misdemeanor is not required to comply with the requirements of Subsection (2)(a) and
Subsection (4).
(3)(a) “Indigency” means that a person:
(i) does not have sufficient income, assets, credit, or other means to provide for the payment of
legal counsel and all other necessary expenses of representation without depriving that person
or the family of that person of food, shelter, clothing, and other necessities; or
(ii) has an income level at or below 150% of the United States poverty level as defined by
the most recently revised poverty income guidelines published by the United States Department
of Health and Human Services; and
(iii) has not transferred or otherwise disposed of any assets since the commission of the offense
with the intent of establishing eligibility for the appointment of counsel under this chapter.
(b) In making a determination of indigency, the court shall consider:
(i) the probable expense and burden of defending the case;
(ii) the ownership of, or any interest in, any tangible or intangible personal property or real
property, or reasonable expectancy of any such interest;
(iii) the amounts of debts owned by the defendant or that might reasonably be incurred by the
defendant because of illness or other needs within the defendant's family;
(iv) number, ages, and relationships of any dependents;
(v) the reasonableness of fees and expenses charged to the defendant by the defendant's
attorney and the scope of representation undertaken where the defendant is represented by
privately retained defense counsel; and
(vi) other factors considered relevant by the court.
(4)(a) Upon making a finding of indigence, the court shall enter the findings on the record and
enter an order assigning a defense services provider to represent the defendant in the case.
(b) Upon finding indigence when the defendant has privately retained counsel, the court, subject
to Section 77-32-303, shall enter the findings into the record and issue an order directing the
county or municipality to coordinate the providing of defense resources as appropriate.
(c) The clerk of the court shall send a copy of the affidavit and order to the prosecutor and to the
county clerk or municipal recorder.
(5) If the county or municipality providing the defense services provider has any objections to or
concerns with the finding of indigency and assignment of a defense services provider or the
continuing of indigency status and assignment of a defense services provider, it shall file notice
with the court and a hearing shall be scheduled to review the findings and give the county or
municipality the opportunity to present evidence and arguments as to the reasons the finding of
indigency should be reversed and the court shall proceed as provided in Subsection 77-32302(4).
(6)(a) If the trial court finds within one year after the determination of indigency that any
defendant was erroneously or improperly determined to be indigent, the county or municipality
may proceed against that defendant for the reasonable value of the services rendered to the
defendant, including all costs paid by the county or municipality in providing the legal defense.
(b) Subsection (6)(a) does not affect any restitution required of the defendant by the court
pursuant to Chapter 32a, Defense Costs.
(c) A defendant claiming indigency has a continuing duty to inform the court of any material
changes or change in circumstances that may affect the determination of his eligibility for
indigency.
(d) Any person who intentionally or knowingly makes a material false statement or omits a
material fact in an affidavit for indigency is guilty of a class B misdemeanor.
Vermont
Statute
Chapter 163
§ 5236. Determination of financial need
(a) The determination whether a person covered by sections 5231-5234 of this title is a needy person shall be
deferred until his or her first appearance in court or in a suit for payment or reimbursement under section 5255 of this
title, whichever occurs earlier. Thereafter, the court shall determine, with respect to each proceeding, whether the
person is a needy person. For purposes of this section, an appeal is a separate proceeding. The determination of
need, for purposes of an appeal, shall be based on a separate application submitted on or after the date of the order
appealed from, except that an appeal from a proceeding under chapter 52 of Title 33 is not a separate proceeding
and does not require a separate application.
(b) In determining whether a person is a needy person and the extent of his or her ability to pay, the court may
consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents
as specified in rules of the supreme court adopted pursuant to section 5204 of this title. Release on bail does not
necessarily disqualify a person from being a needy person. In each case, the person, subject to the penalties for
perjury, shall certify in writing or by other record such information relating to ability to pay as the supreme court
prescribes.
(c) A determination of whether a person is a needy person under this section shall be made by the clerk of the court,
or any other judicial officer of the court. After review of the initial determination by the presiding judge of the trial court
the applicant, the state, or the office of the defender general may appeal the determination to a single justice of the
supreme court of this state, in accordance with the rules of the supreme court.
(d) In determining whether a person is a needy person under this section and the extent of the person's ability to pay,
the clerk of court or the judicial officer, who is making that determination, may require the applicant to provide proof of
income, at a time to be determined by the clerk or judicial officer.
(e)(1) The commissioner of taxes or the commissioner's designee, when requested by the clerk of court or the judicial
officer, shall furnish the requester with a nonspecific report of the adjusted gross income as shown on the Vermont
tax return of the applicant or, in the case of a joint return, the applicant and the applicant's spouse as it relates to the
federal poverty income guidelines in effect as of December 31 of the year for which the tax information is requested.
Such report shall only identify whether the income of the applicant (or the applicant and the applicant's spouse in the
case of a joint return) is at or below the federal poverty income guidelines applicable to family size or is within the
following percentages of those guidelines:
101-124%
125-150%
151-175%
176-200%, or
over 200%
(2) Information furnished to the requester shall be made available to the applicant and the court.
(f) Any financial information furnished or disclosed under subsections (d) and (e) of this section shall be confidential
and available for review only by the clerk or judicial officer or the person submitting the financial information. In the
event of an appeal, any identifying information shall be confidential and not made part of the public record.
(g) A person who knowingly violates subsection (f) of this section shall be fined not more than $500.00, and shall be
liable in a civil action for any damages resulting from improper disclosure. (Added 1971, No. 161 (Adj. Sess.), § 6, eff.
date, see note; amended 1987, No. 266 (Adj. Sess.); 1991, No. 231 (Adj. Sess.), § 1; 1993, No. 60, § 57; 1995, No.
178 (Adj. Sess.), § 62; 1997, No. 45, §§ 1, 2, eff. June 19, 1997; 1997, No. 139 (Adj. Sess.), § 3; No. 156 (Adj.
Sess.), § 25, eff. April 29, 1998.)
VirginiaVA Code Ann. § 19.2-159
§ 19.2-159. Determination of indigency; guidelines; statement of indigence; appointment of
counsel
Currentness
A. If the accused shall claim that he is indigent, and the charge against him is a criminal offense which may be
punishable by death or confinement in the state correctional facility or jail, subject to the provisions of § 19.2-160, the
court shall determine from oral examination of the accused or other competent evidence whether or not the accused
is indigent within the contemplation of law pursuant to the guidelines set forth in this section.
B. In making its finding, the court shall determine whether or not the accused is a current recipient of a state or
federally funded public assistance program for the indigent. If the accused is a current recipient of such a program
and does not waive his right to counsel or retain counsel on his own behalf, he shall be presumed eligible for the
appointment of counsel. This presumption shall be rebuttable where the court finds that a more thorough examination
of the financial resources of the defendant is necessary. If the accused shall claim to be indigent and is not
presumptively eligible under the provisions of this section, then a thorough examination of the financial resources of
the accused shall be made with consideration given to the following:
1. The net income of the accused, which shall include his total salary and wages minus deductions required by law.
The court also shall take into account income and amenities from other sources including but not limited to social
security funds, union funds, veteran's benefits, other regular support from an absent family member, public or private
employee pensions, dividends, interests, rents, estates, trusts, or gifts.
2. All assets of the accused which are convertible into cash within a reasonable period of time without causing
substantial hardship or jeopardizing the ability of the accused to maintain home and employment. Assets shall include
all cash on hand as well as in checking and savings accounts, stocks, bonds, certificates of deposit, and tax refunds.
All personal property owned by the accused which is readily convertible into cash shall be considered, except
property exempt from attachment. Any real estate owned by the accused shall be considered in terms of the amounts
which could be raised by a loan on the property. For purposes of eligibility determination, the income, assets, and
expenses of the spouse, if any, who is a member of the accused's household, shall be considered, unless the spouse
was the victim of the offense or offenses allegedly committed by the accused.
3. Any exceptional expenses of the accused and his family which would, in all probability, prohibit him from being able
to secure private counsel. Such items shall include but not be limited to costs for medical care, family support
obligations, and child care payments.
The available funds of the accused shall be calculated as the sum of his total income and assets less the exceptional
expenses as provided in paragraph 3 above. If the accused does not waive his right to counsel or retain counsel on
his own behalf, counsel shall be appointed for the accused if his available funds are equal to or below 125 percent of
the federal poverty income guidelines prescribed for the size of the household of the accused by the federal
Department of Health and Human Services. The Supreme Court of Virginia shall be responsible for distributing to all
courts the annual updates of the federal poverty income guidelines made by the Department.
If the available funds of the accused exceed 125 percent of the federal poverty income guidelines and the accused
fails to employ counsel and does not waive his right to counsel, the court may, in exceptional circumstances, and
where the ends of justice so require, appoint an attorney to represent the accused. However, in making such
appointments, the court shall state in writing its reasons for so doing. The written statement by the court shall be
included in the permanent record of the case.
C. If the court determines that the accused is indigent as contemplated by law pursuant to the guidelines set forth in
this section, the court shall provide the accused with a statement which shall contain the following:
“I have been advised this .... day of ......., 20.., by the (name of court) court of my right to representation by counsel in
the trial of the charge pending against me; I certify that I am without means to employ counsel and I hereby request
the court to appoint counsel for me. ”
............... (signature of accused)
The court shall also require the accused to complete a written financial statement to support the claim of indigency
and to permit the court to determine whether or not the accused is indigent within the contemplation of law. The
accused shall execute the said statements under oath, and the said court shall appoint competent counsel to
represent the accused in the proceeding against him, including an appeal, if any, until relieved or replaced by other
counsel.
The executed statements by the accused and the order of appointment of counsel shall be filed with and become a
part of the record of such proceeding.
All other instances in which the appointment of counsel is required for an indigent shall be made in accordance with
the guidelines prescribed in this section.
D. Except in jurisdictions having a public defender, or unless (i) the public defender is unable to represent the
defendant by reason of conflict of interest or (ii) the court finds that appointment of other counsel is necessary to
attain the ends of justice, counsel appointed by the court for representation of the accused shall be selected by a fair
system of rotation among members of the bar practicing before the court whose names are on the list maintained by
the Indigent Defense Commission pursuant to § 19.2-163.01. If no attorney who is on the list maintained by the
Indigent Defense Commission is reasonably available, the court may appoint as counsel an attorney not on the list
who has otherwise demonstrated to the court's satisfaction an appropriate level of training and experience. The court
shall provide notice to the Commission of the appointment of the attorney.
West Virginia
The West Virginia Indegency Commission’s website is partially under construction and I cannot find the eligibility
guidelines. In 1994 they used 150% of poverty level as a standard. http://www.wvpds.org/Guidelines.pdf
§29-21-16. Determination of maximum income levels; eligibility guidelines; use of form affidavit; inquiry by court;
denial of services; repayment; limitation on remedies against affiant.
(a) The agency shall establish, and periodically review and update financial guidelines for determining eligibility for
legal representation made available under the provisions of this article. The agency shall adopt a financial affidavit
form for use by persons seeking legal representation made available under the provisions of this article.
(b) All persons seeking legal representation made available under the provisions of this article shall complete the
agency's financial affidavit form, which shall be considered as an application for the provision of publicly funded legal
representation.
(c) Any juvenile shall have the right to be effectively represented by counsel at all stages of proceedings brought
under the provisions of article five, chapter forty-nine of this code. If the child advises the court of his or her inability to
pay for counsel, the court shall require the child's parent or custodian to execute a financial affidavit. If the financial
affidavit demonstrates that neither of the child's parents, or, if applicable, the child's custodian, has sufficient assets to
pay for counsel, the court shall appoint counsel for the child. If the financial affidavit demonstrates that either of the
child's parents, or, if applicable, the child's custodian, does have sufficient assets to pay for counsel, the court shall
order the parent, or, if applicable, the custodian, to provide, by paying for, legal representation for the child in the
proceedings.
The court may disregard the assets of the child's parents or custodian and appoint counsel for the child, as provided
above, if the court concludes, as a matter of law, that the child and the parent or custodian have a conflict of interest
that would adversely affect the child's right to effective representation of counsel, or concludes, as a matter of law,
that requiring the child's parent or custodian to provide legal representation for the child would otherwise jeopardize
the best interests of the child.
(d) In circuits in which no public defender office is in operation, circuit judges shall make all determinations of
eligibility. In circuits in which a public defender office is in operation, all determinations of indigency shall be made by
a public defender office employee designated by the executive director. Such determinations shall be made after a
careful review of the financial affidavit submitted by the person seeking representation. The review of the affidavit
shall be conducted in accord with the financial eligibility guidelines established by the agency pursuant to subsection
(a) of this section. In addition to the financial eligibility guidelines, the person determining eligibility shall consider
other relevant factors, including, but not limited to, those set forth in subdivisions (1) through (9) of subsection (e) of
this section. If there is substantial reason to doubt the accuracy of information in the financial affidavit, the person
determining eligibility may make such inquiries as are necessary to determine whether the affiant has truthfully and
completely disclosed the required financial information.
After reviewing all pertinent matters the person determining eligibility may find the affiant to be eligible to have the
total cost of legal representation provided by the state, or may find that the total cost of providing representation shall
be apportioned between the state and the eligible person. A person whose annual income exceeds the maximum
annual income level allowed for eligibility may receive all or part of the necessary legal representation, or a person
whose income falls below the maximum annual income level for eligibility may be denied all or part of the necessary
legal representation if the person determining eligibility finds the person's particular circumstances require that
eligibility be allowed or disallowed,as the case may be, on the basis of one or more of the nine factors set forth in
subsection (e) of this section. If legal representation is made available to a person whose income exceeds the
maximum annual income level for eligibility, or if legal representation is denied to a person whose income falls below
the maximum annual income level for eligibility, the person determining eligibility shall make a written statement of
the reasons for the action and shall specifically relate those reasons to one or more of the factors set forth in
subsection (e) of this section.
(e) The following factors shall be considered in determining eligibility for legal representation made available under
the provisions of this article:
(1) Current income prospects, taking into account seasonal variations in income;
(2) Liquid assets, assets which may provide collateral to obtain funds to employ private counsel and other assets
which may be liquidated to provide funds to employ private counsel;
(3) Fixed debts and obligations, including federal, state and local taxes and medical expenses;
(4) Child care, transportation and other expenses necessary for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person seeking publicly funded legal representation has made reasonable and diligent efforts to
obtain private legal representation, and the results of those efforts;
(7) The cost of obtaining private legal representation with respect to the particular matter in which assistance is
sought;
(8) Whether the person seeking publicly funded legal representation has posted a cash bond for bail or has obtained
release on bond for bail through the services of a professional bondsman for compensation and the amount and
source of the money provided for such bond;
(9) The consequences for the individual if legal assistance is denied.
(f) Legal representation requested by the affiant may not be denied in whole or part unless the affiant can obtain legal
representation without undue financial hardship. Persons determined to be ineligible by public defender personnel
may have the initial determination reviewed by a local circuit judge who may amend, modify or rewrite the initial
determination. At any stage of the proceedings a circuit court may determine a prior finding of eligibility was incorrect
or has become incorrect as the result of the affiant's changed financial circumstances, and may revoke any prior
order providing legal representation. In such event any attorney previously appointed shall be entitled to
compensation under the provisions of law applicable to such appointment for services already rendered.
(g) In the circumstances and manner set forth below, circuit judges may order repayment to the state, through the
office of the clerk of the circuit court having jurisdiction over the proceedings, of the costs of representation provided
under this article:
(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered
against such person, the court may require that person, and in juvenile cases, may require the juvenile's parents or
custodian, to pay as costs the compensation of appointed counsel, the expenses of the defense and such other fees
and costs as authorized by statute.
(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In
determining the amount and method of repayment of costs, the court shall take account of the financial resources of
the person, the person's ability to pay and the nature of the burden that payment of costs will impose. The fact that
the court initially determines, at the time of a case's conclusion, that it is not proper to order the repayment of costs
does not preclude the court from subsequently ordering repayment should the person's financial circumstances
change.
(3) When a person is ordered to repay costs, the court may order payment to be made forthwith or within a specified
period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment
of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of
sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable
likelihood the person will acquire the necessary assets in the foreseeable future.
(4) A person who has been ordered to repay costs, and who is not in contumacious default in the payment thereof,
may at any time petition the sentencing court for modification of the repayment order. If it appears to the satisfaction
of the court that continued payment of the amount ordered will impose undue hardship on the person or the person's
dependents, the court may modify the method or amount of payment.
(5) When a person ordered to pay costs is also placed on probation or imposition or execution of sentence is
suspended, the court may make the repayment of costs a condition of probation or suspension of sentence.
(h) Circuit clerks shall keep a record of repaid counsel fees and defense expenses collected pursuant to this section
and shall, quarterly, pay the moneys to the state auditor who shall deposit the funds in the general revenue fund of
the state.
(i) The making of an affidavit subject to inquiry under this section does not in any event give rise to criminal remedies
against the affiant nor occasion any civil action against the affiant except for the recovery of costs as in any other
case where costs may be recovered and the recovery of the value of services, if any, provided pursuant to this article.
A person who has made an affidavit knowing the contents thereof to be false may be prosecuted for false swearing
as provided by law.
Washington(3) "Indigent" means a person who, at any stage of a court proceeding, is: (a) Receiving one of the following types of public
assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under
RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans' benefits, food stamps or food stamp benefits
transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or (b) Involuntarily
committed to a public mental health facility; or (c) Receiving an annual income, after taxes, of one hundred twenty-five percent
or less of the current federally established poverty level; or (d) Unable to pay the anticipated cost of counsel for the matter before
the court because his or her available funds are insufficient to pay any amount for the retention of counsel.
In Washington, applicants whose household incomes are up to 125 percent of
the federal guidelines are defined as indigent.
Wisconsinhttp://www.wisbar.org/AM/Template.cfm?Section=InsideTrack&Template=/CustomSource/InsideTrack/contentDisplay
.cfm&Contentid=91260
977.06. Indigency determinations; redeterminations; verification; collection
(1) Duties. The state public defender shall determine whether persons are indigent and shall establish a system to
do all of the following:
(a) Verify the information necessary to determine indigency under rules promulgated under s. 977.02(3). The
information provided by a person seeking assigned counsel that is subject to verification shall include any social
security numbers provided on an application under sub. (1m), income records, value of assets, eligibility for public
assistance, and claims of expenses.
(b) Redetermine indigency during the course of representation of persons receiving representation.
(c) Record the amount of time spent on each case by the attorney appointed under s. 977.08.
(d) Collect for the cost of representation from persons who are indigent in part or who have been otherwise
determined to be able to reimburse the state public defender for the cost of providing counsel.
(1m) Application for representation. The state public defender shall request each person seeking to have counsel
assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s.
48.23 or 938.23, to provide the state public defender with his or her social security number and the social security
numbers of his or her spouse and dependent children, if any.
(2) Verification. (a) A person seeking to have counsel assigned for him or her under s. 977.08, other than a person
who is entitled to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, shall sign a statement
declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If
the representative or authority making the indigency determination finds that any asset was disposed of for less than
its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under rules
promulgated under s. 977.02(3) at its fair market value at the time it was disposed of, minus the amount of
compensation received for the asset.
(am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a person who is entitled
to be represented by counsel under s. 48.23, 51.60, 55.105, or 938.23, shall sign a statement declaring that the
information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true
and that he or she is informed that he or she is subject to the penalty under par. (b).
(b) A person who makes a false representation that he or she does not believe is true for purposes of qualifying for
assignment of counsel is guilty of a Class I felony.
(3) Redeterminations. (a) Unless the court has made an adjustment under s. 973.06(1)(e), upon determination at
the conclusion of a case that a person's financial circumstances are changed, the state public defender may adjust
the amount of payment for counsel.
(b) The state public defender may petition a court that ordered payment under s. 757.66, 973.06(1)(e) or 977.076(1)
to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.
(c) Except as provided in ss. 48.275(2)(b) and 938.275(2)(b), an adjustment under this subsection shall be based on
the person's ability to pay and on the fee schedule established by the board under s. 977.075(3).
(4) Oversight. (a) A circuit court may review any indigency determination upon its own motion or the motion of the
defendant and shall review any indigency determination upon the motion of the district attorney or the state public
defender. The court, district attorney or state public defender may summon the defendant. The defendant may be
compelled to testify only as to his or her financial eligibility under this section. If the defendant refuses to testify, the
court may find the defendant is not eligible to have counsel assigned for him or her under s. 977.08. If the defendant
testifies at this hearing, his or her testimony as to his or her financial eligibility under this section may not be used
directly or indirectly in any criminal action, except in a criminal action regarding a subsequent charge of perjury or
false swearing.
(b) The state public defender shall promptly release a copy of any statement, affidavit or other information provided
by a person regarding financial eligibility under s. 977.07 only if the state public defender or a circuit court finds all of
the following:
1. The person is not eligible to have counsel assigned under s. 977.08.
2. The person disposed of an asset for less than its fair market value for the purpose of obtaining assignment of
counsel.
(bm) In response to a request for information under s. 49.22(2m) made by the department of children and families or
a county child support agency under s. 59.53(5), the state public defender shall provide the name and address of an
individual, the name and address of the individual's employer and financial information related to the individual, if the
name, address or financial information is included in any statement, affidavit or other information provided by the
individual regarding financial eligibility under s. 977.07 and if, at the time the request for information is made, the
individual is represented by the state public defender or by counsel assigned under s. 977.08.
(c) Paragraphs (b) and (bm) do not limit the authority of the state public defender to release a copy of a statement,
affidavit or other information regarding financial eligibility under s. 977.07 under other circumstances.
Wis. Adm. Code s PD 3.03
PD 3.03 Determination of financial eligibility.
(1) An applicant is financially eligible for appointment of counsel by the state public defender if both of the following
criteria are met:
(a) Asset limitations. The anticipated cost of retained counsel under s. PD 3.02 exceeds the applicant's family assets
deemed available under sub. (2) to pay the costs of legal representation.
(b) Income limitations. The anticipated cost of retained counsel under s. PD 3.02 exceeds the applicant's family
income deemed available under sub. (3) to pay the costs of legal representation.
(2) The state public defender shall consider assets in the manner described in s. 49.145 (3) (a), Stats., and shall
consider assets as available to pay the costs of legal representation if the assets exceed the resource limitations of s.
49.145 (3) (a), Stats., except that the exclusion from consideration for the applicant's homestead shall be limited to
the first $30,000 of equity.
(3) Subject to subs. (4) and (5), the state public defender shall consider income as available to pay the costs of
legal representation if the income exceeds the income limitations of s. 49.145 (3) (b), Stats.
Financial eligibility requirements. An individual is eligible for a Wisconsin works employment position and a job
access loan only if all of the following financial eligibility requirements are met:
(a) Resource limitations. The individual is a member of a Wisconsin works group whose assets do not exceed $2,500
in combined equity value. In determining the combined equity value of assets, the Wisconsin works agency shall
exclude the equity value of vehicles up to a total equity value of $10,000, and one home that serves as the
homestead for the Wisconsin works group.
(b) Income limitations. The individual is a member of a Wisconsin works group whose gross income is at or below
115% of the poverty line. In calculating gross income under this paragraph, the Wisconsin works agency shall include
all of the following:
1. All earned and unearned income of the individual, except any amount received under section 32 of the Internal
Revenue Code, as defined in s. 71.01(6), any amount received under s. 71.07(9e), any payment made by an
employer under section 3507 of the Internal Revenue Code, as defined in s. 71.01(6), any student financial aid
received under any federal or state program, any scholarship used for tuition and books, and any assistance received
under s. 49.148. In determining the earned and unearned income of the individual, the Wisconsin works agency may
not include income earned by a dependent child of the individual.
3. The income of a nonmarital coparent or of the individual's spouse, if the spouse resides in the same home as the
dependent child.
(4) Review of eligibility. A Wisconsin works agency shall periodically review an individual's eligibility. The individual
remains eligible under sub. (3) until the Wisconsin works group's assets or income is expected to exceed the asset or
income limit under sub. (3) for at least 2 consecutive months.
(4) For the purpose of the calculations under this section, the state public defender shall consider the applicant's
anticipated income for the time period beginning at the time of the application and continuing for the following time:
(a) For felony cases and cases under ch. 980, Stats., six months.
(b) For appellate cases, eight months.
(c) For cases under chs. 51 and 55, Stats., two months.
(d) For all other cases, four months.
(5) (a) Notwithstanding the criteria in sub. (1), an applicant is financially eligible for appointment of an attorney by the
state public defender if the applicant's only income is derived from one or more of the following sources:
1. A Wisconsin works employment position under s. 49.148 (1) (a), (b), or (c), Stats.
2. Wisconsin works benefits under s. 49.148 (1m), Stats.
3. Supplemental security income for the aged, blind, and disabled under 42 U.S.C. 1381-1383c, relief as defined in s.
49.01 (3), Stats., or any other similar needs-based financial assistance program.
(b) Notwithstanding sub. (1), an applicant is financially eligible for appointment of appellate counsel if the applicant
has filed a notice of intent to pursue post-conviction relief under s. 809.30 (2) (b), Stats., indicating that:
1. The state public defender has appointed counsel in the case.
2. His or her financial circumstances have not materially changed since the date on which the applicant was
determined to be eligible for the appointment of counsel in that case.
(6) For the purpose of the calculations under this section, the state public defender shall consider assets and
income of the applicant's spouse as the applicant's assets and income, unless the spouse is alleged to be the victim
of a crime allegedly committed by the applicant.
(7) If a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b), Stats., has available income or assets greater than
$100, but less than the anticipated cost of counsel, the parent shall be determined to be indigent in part.
(8) If a person subject to s. 51.605 (1) or 55.107 (1), Stats., has available income or assets greater than $100, but
less than the anticipated cost of counsel, the parent shall be determined to be indigent in part.
(9) The state public defender shall annually review the standards specified in this chapter and shall revise these
standards as required.
WYOMING
§ 14-2-319. Determination of indigency; recovery of payment
(a) In determining whether a person is an indigent party for purposes of W.S. 14-2-318, the
court shall consider in addition to any other relevant factors the person's income, property
owned, outstanding obligations and the number and ages of his dependents. In each case the
person, subject to the penalties for perjury, shall certify in writing, or by other record, material
facts relating to his ability to pay as the court prescribes.
(b) To the extent that an indigent party is able to provide for an attorney or for other expenses
incurred in defense of an action brought under this act, the court may order that he make
payment within a specified period of time or in specified installments.
(c) Within eight (8) years after the date the services were rendered, the attorney general may sue
on behalf of the state to recover payment or reimbursement from each person who has received
legal assistance or another benefit under this act:
(i) To which he was not entitled;
(ii) With respect to which he was not an indigent person when he received it; or
(iii) With respect to which he has failed to make the certification required by subsection
(a) of this section.
(d) Within three (3) years after the date the services were rendered, the attorney general may sue
on behalf of the state to recover payment or reimbursement from each person other than a person
covered by subsection (c) of this section who:
(i) Has received legal assistance or other benefit under this act; and
(ii) On the date on which suit is brought is financially able to pay or reimburse the state
for all or part of the legal assistance or other benefit according to the standards of ability
to pay applicable under this act but refuses to do so.
(e) Amounts recovered under this section shall be remitted to the general fund.