77-32-302.   Assignment of counsel on request of indigent or order of court.
     (1) Legal counsel shall be assigned to represent each indigent and the indigent shall also be provided access to defense resources necessary for an effective defense, if the indigent is under arrest for or charged with a crime in which there is a substantial probability that the penalty to be imposed is confinement in either jail or prison if:
     (a) the indigent requests counsel or defense resources, or both; or
     (b) the court on its own motion or otherwise orders counsel, defense resources, or both and the defendant does not affirmatively waive or reject on the record the opportunity to be represented and provided defense resources.
     (2) (a) If a county responsible for providing indigent legal defense, including counsel and defense resources, has established a county legal defender's office and the court has received notice of the establishment of the office, the court shall assign to the county legal defender's office the responsibility to defend indigent defendants within the county and provide defense resources.
     (b) If the county or municipality responsible to provide for the legal defense of an indigent, including defense resources and counsel, has arranged by contract to provide those services through a legal aid association, and the court has received notice or a copy of the contract, the court shall assign the legal aid association named in the contract to defend the indigent and provide defense resources.
     (c) If the county or municipality responsible for providing indigent legal defense, including counsel and defense resources, has contracted to provide those services through individual attorneys, individual defense resources, or associations providing defense resources, and the court has received notice or a copy of the contracts, the court shall assign a contracting attorney as the legal counsel to represent an indigent and a contracted defense resource to provide defense-related services.
     (d) If no county legal defender's office exists, the court shall select and assign an attorney or defense resource if:
     (i) the contract for indigent legal services is with multiple attorneys or resources; or
     (ii) the contract is with another attorney in the event of a conflict of interest.
     (e) If the court considers the assignment of a noncontracting attorney or defense resource to provide legal services to an indigent defendant despite the existence of an indigent legal services contract and the court has a copy or notice of the contract, before the court may make the assignment, it shall:
     (i) set the matter for a hearing;
     (ii) give proper notice of the hearing to the attorney of the responsible county or municipality; and
     (iii) make findings that there is a compelling reason to appoint a noncontracting attorney or defense resource.
     (f) The indigent's preference for other counsel or defense resources may not be considered a compelling reason justifying the appointment of a noncontracting attorney or defense resource.
     (3) The court may make a determination of indigency at any time.

Amended by Chapter 49, 2006 General Session
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Last revised: Thursday, May 28, 2009