H.B. 107

1

COUNSEL FOR INDIGENT DEFENDANTS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Thomas Hatch
5 AN ACT RELATING TO CRIMINAL PROCEDURE; PROVIDING FOR THE
6 DETERMINATION OF INDIGENCY FOR CRIMINAL DEFENDANTS; ESTABLISHING
7 REASONABLE COMPENSATION AND RELATED PROVISIONS FOR DEFENSE
8 COUNSEL FOR INDIGENT DEFENDANTS; PROVIDING FOR REIMBURSEMENT OF
9 DEFENSE EXPENSES; REPEALING AND CONSOLIDATING SECTIONS OF THE CODE
10 RELATING TO INDIGENCY DETERMINATIONS; REQUIRING JUDICIAL APPROVAL
11 OF EXTRAORDINARY INDIGENT CRIMINAL DEFENSE EXPENSES; AND MAKING
12 TECHNICAL CORRECTIONS.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 77-32-6, as last amended by Chapter 161, Laws of Utah 1992
16 ENACTS:
17 77-32-1.1, Utah Code Annotated 1953
18 77-32-6.1, Utah Code Annotated 1953
19 77-32-9, Utah Code Annotated 1953
20 REPEALS:
21 77-32-4, as enacted by Chapter 15, Laws of Utah 1980
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 77-32-1.1 is enacted to read:
24 77-32-1.1. Procedure for determination of indigency -- Standards.
25 (1) A determination of indigency or continuing indigency of any defendant may be made
26 by the court at any stage of the proceedings.
27 (2) S (a) s Any defendant claiming indigency S WHO IS CHARGED WITH A CRIME THE
27a PENALTY OF WHICH IS A CLASS A MISDEMEANOR OR FELONY s shall file a fully complete, signed,
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Amend on 3_goldenrod March 5, 1997 27b and notarized

1 affidavit with the court and file a copy of that affidavit with the h [county] PROSECUTING ENTITY h .
1a The affidavit shall contain
2 the factual information required in this section and by the court.
2a S (b) A DEFENDANT CLAIMING INDIGENCY WHO IS CHARGED WITH A CRIME THE PENALTY
2b OF WHICH IS LESS THAN A CLASS A MISDEMEANOR IS NOT REQUIRED TO COMPLY WITH THE
2c REQUIREMENTS OF SUBSECTION (a) AND SUBSECTION (4). s
3 (3) (a) "Indigency" means that a person:
4 (i) does not have sufficient income, assets, credit, or other means to provide for the
5 payment of legal counsel and all other necessary expenses of representation without depriving that
6 person or the family of that person of food, shelter, clothing, and other necessities; or
7 (ii) has an income level at or below 150% of the United States poverty level as defined by
8 the most recently revised poverty income guidelines published by the United States Department
9 of Health and Human Services; and
10 (iii) has not transferred or otherwise disposed of any assets since the commission of the
11 offense with the intent of establishing eligibility for the appointment of counsel under this chapter.
12 (b) In making a determination of indigency, the court shall consider:
13 (i) the probable expense and burden of defending the case;
14 (ii) the ownership of, or any interest in, any tangible or intangible personal property or real
15 property, or reasonable expectancy of any such interest;
16 (iii) the amounts of debts owned by the defendant or that might reasonably be incurred by
17 the defendant because of illness or other needs within the defendant's family;
18 (iv) number, ages, and relationships of any dependents; and
19 (v) other relevant factors.
20 (4) Upon making a finding of indigence, the court shall enter the findings on the record
21 and enter an order assigning defense counsel to represent the defendant in the case. The clerk of
22 the court shall send a copy of the affidavit and order to the prosecutor.
23 (5) If the county or municipality providing the defense counsel has any objections to or
24 concerns with the finding of indigency and assignment of defense counsel or the continuing of
25 indigency status and assignment of a public defender, it shall file notice with the court and a
26 hearing shall be scheduled to review the findings and give the county or municipality the
27 opportunity to present evidence and arguments as to the reasons the finding of indigency should
28 be reversed.
29 (6) (a) If the trial court finds within one year after the determination of indigency that any
30 defendant was erroneously or improperly determined to be indigent, the county or municipality
31 may proceed against that defendant for the reasonable value of the services rendered to the

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1 defendant, including all costs paid by the county or municipality in providing the defense counsel.
2 (b) Subsection (6)(a) does not affect any restitution required of the defendant by the court
3 pursuant to Title 77, Chapter 32a, Defense Costs.
4 Section 2. Section 77-32-6 is amended to read:
5 77-32-6. County or municipal legislative body to appoint counsel or provide through
6 legal aid associations.
7 [Governing bodies of counties, cities, and towns] The county or municipal legislative body
8 shall either:
9 (1) contract to provide the services prescribed by this chapter through nonprofit legal aid,
10 other associations, or attorneys; or
11 [(1)] (2) authorize the court to provide the services prescribed by this chapter by
12 [appointing] assigning a qualified attorney in each case [and awarding him reasonable
13 compensation and expenses to be paid by the appropriate governing body; or].
14 [(2) arrange by contract to provide those services through nonprofit legal aid, other
15 associations, or attorneys.]
16 Section 3. Section 77-32-6.1 is enacted to read:
17 77-32-6.1. Reasonable compensation for defense counsel for indigents.
18 (1) This section does not apply to any attorney:
19 (a) under contract with the county or municipality for defense of an indigent person; or
20 (b) in the legal defender organization, legal aid agency, law firm, or public defender
21 association with which that attorney is professionally associated.
22 (2) (a) The county or municipality shall pay reasonable compensation to any attorney
23 assigned by the court under Subsection 77-32-6 at the conclusion of the representation or any
24 segment of the representation, as provided in Subsections (b), (c), (d), and (e):
25 (i) before the district or justice courts, including interlocutory appeals; and
26 (ii) before the appellate court on a first appeal of right.
27 (b) The legislative body of each county and municipality shall establish and annually
28 review guidelines for the rate of compensation, taking into account:
29 (i) the nature and complexity of the case;
30 (ii) the competency and years of experience in criminal defense of the assigned attorney;
31 (iii) the adjusted net hourly rate incurred by the county or municipality for a prosecutor

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1 or public defender of equivalent experience and competency; and
2 (iv) the prevailing rates within the judicial district for comparable services.
3 (c) If the legislative body of a county or municipality does not establish the rate guidelines,
4 the rate of compensation shall be determined by the trial judge or a judge other than the trial judge
5 if requested by:
6 (i) the assigned attorney; or
7 (ii) the county or municipality.
8 (d) If the assigned attorney disagrees with the amount of compensation paid or
9 contemplated for payment by the county or municipality, the assigned attorney shall nonetheless
10 continue to represent the indigent defendant and may file a claim against:
11 (i) the county pursuant to Section 17-15-10, in which event the period for a denial by the
12 county shall be 20 days; or
13 (ii) the municipality pursuant to the Uniform Fiscal Procedures Act for Utah Cities.
14 (e) In determining the reasonable compensation to be paid to defense counsel under
15 Subsections (2)(c) and (d), the court shall consider the factors contained in Subsections (2)(b)(i)
16 through (iv).
17 (f) The total compensation in a noncapital case may not, without prior court approval
18 following a hearing, exceed:
19 (i) $3,500 for each assigned attorney in a case in which one or more felonies is charged;
20 (ii) $1,000 for each assigned attorney in a case in which only misdemeanors or lesser
21 offenses are charged; or
22 (iii) $2,500 for each assigned attorney in the representation of an indigent in an appellate
23 court on a first appeal of right.
24 Section 4. Section 77-32-9 is enacted to read:
25 77-32-9. Reimbursement of extraordinary expense.
26 (1) For the purposes of this section, an "extraordinary expense" means the collective
27 expense which exceeds $500 for any particular service or item such as experts, investigators,
28 surveys, h OR h demonstrative evidence h [ , or other extraordinary expense ] h .
29 (2) The county or municipality shall reimburse expenses, exclusive of overhead and
30 extraordinary expense not approved by the court in accordance with this chapter, reasonably
31 incurred by assigned attorneys for indigent defendants.

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1 (3) The assigned attorney shall file a motion with the court h [ , to be heard and ruled upon by
2 a judge other than the trial judge, ] h for approval of the proposed expenditure for any extraordinary
3 expense before the expense is incurred. h THE MOTION SHALL BE HEARD AND RULED UPON BY A
3a JUDGE OTHER THAN THE TRIAL JUDGE IF SO REQUESTED BY EITHER PARTY OR UPON THE MOTION
3b OF THE TRIAL JUDGE. h
4 Section 5. Repealer.
5 This act repeals:
6 Section 77-32-4, Time for determination of indigency.




Legislative Review Note
as of 2-3-97 1:52 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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