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H.B. 107 Enrolled

    

COUNSEL FOR INDIGENT DEFENDANTS

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Thomas Hatch

    AN ACT RELATING TO CRIMINAL PROCEDURE; PROVIDING FOR THE
    DETERMINATION OF INDIGENCY FOR CRIMINAL DEFENDANTS;
    ESTABLISHING REASONABLE COMPENSATION AND RELATED PROVISIONS
    FOR DEFENSE COUNSEL FOR INDIGENT DEFENDANTS; PROVIDING FOR
    REIMBURSEMENT OF DEFENSE EXPENSES; REPEALING AND
    CONSOLIDATING SECTIONS OF THE CODE RELATING TO INDIGENCY
    DETERMINATIONS; REQUIRING JUDICIAL APPROVAL OF EXTRAORDINARY
    INDIGENT CRIMINAL DEFENSE EXPENSES; AND MAKING TECHNICAL
    CORRECTIONS.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         77-32-6, as last amended by Chapter 161, Laws of Utah 1992
    ENACTS:
         77-32-1.1, Utah Code Annotated 1953
         77-32-6.1, Utah Code Annotated 1953
         77-32-9, Utah Code Annotated 1953
    REPEALS:
         77-32-4, as enacted by Chapter 15, Laws of Utah 1980
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 77-32-1.1 is enacted to read:
         77-32-1.1. 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 felony shall file a fully complete, signed, and notarized


    affidavit with the court 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 (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; and
        (v) other relevant factors.
        (4) Upon making a finding of indigence, the court shall enter the findings on the record and
    enter an order assigning defense counsel to represent the defendant in the case. The clerk of the
    court shall send a copy of the affidavit and order to the prosecutor.
        (5) If the county or municipality providing the defense counsel has any objections to or
    concerns with the finding of indigency and assignment of defense counsel or the continuing of
    indigency status and assignment of a public defender, it shall file notice with the court and a hearing

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    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.
        (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 defense counsel.
        (b) Subsection (6)(a) does not affect any restitution required of the defendant by the court
    pursuant to Title 77, Chapter 32a, Defense Costs.
        Section 2. Section 77-32-6 is amended to read:
         77-32-6. County or municipal legislative body to appoint counsel or provide through
     legal aid associations.
        [Governing bodies of counties, cities, and towns] The county or municipal legislative body
    shall either:
        (1) contract to provide the services prescribed by this chapter through nonprofit legal aid,
    other associations, or attorneys; or
        [(1)] (2) authorize the court to provide the services prescribed by this chapter by [appointing]
    assigning a qualified attorney in each case [and awarding him reasonable compensation and expenses
    to be paid by the appropriate governing body; or].
        [(2) arrange by contract to provide those services through nonprofit legal aid, other
    associations, or attorneys.]
        Section 3. Section 77-32-6.1 is enacted to read:
         77-32-6.1. Reasonable compensation for defense counsel for indigents.
        (1) This section does not apply to any attorney:
        (a) under contract with the county or municipality for defense of an indigent person; or
        (b) in the legal defender organization, legal aid agency, law firm, or public defender
    association with which that attorney is professionally associated.
        (2) (a) The county or municipality shall pay reasonable compensation to any attorney
    assigned by the court under Subsection 77-32-6 at the conclusion of the representation or any

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    segment of the representation, as provided in Subsections (b), (c), (d), and (e):
        (i) before the district or justice courts, including interlocutory appeals; and
        (ii) before the appellate court on a first appeal of right.
        (b) The legislative body of each county and municipality shall establish and annually review
    guidelines for the rate of compensation, taking into account:
        (i) the nature and complexity of the case;
        (ii) the competency and years of experience in criminal defense of the assigned attorney;
        (iii) the adjusted net hourly rate incurred by the county or municipality for a prosecutor or
    public defender of equivalent experience and competency; and
        (iv) the prevailing rates within the judicial district for comparable services.
        (c) If the legislative body of a county or municipality does not establish the rate guidelines,
    the rate of compensation shall be determined by the trial judge or a judge other than the trial judge
    if requested by:
        (i) the assigned attorney; or
        (ii) the county or municipality.
        (d) If the assigned attorney disagrees with the amount of compensation paid or contemplated
    for payment by the county or municipality, the assigned attorney shall nonetheless continue to
    represent the indigent defendant and may file a claim against:
        (i) the county pursuant to Section 17-15-10, in which event the period for a denial by the
    county shall be 20 days; or
        (ii) the municipality pursuant to Title 10, Chapter 6, Uniform Fiscal Procedures Act.
        (e) In determining the reasonable compensation to be paid to defense counsel under
    Subsections (2)(c) and (d), the court shall consider the factors contained in Subsections (2)(b)(i)
    through (iv).
        (f) The total compensation in a noncapital case may not, without prior court approval
    following a hearing, exceed:
        (i) $3,500 for each assigned attorney in a case in which one or more felonies is charged;
        (ii) $1,000 for each assigned attorney in a case in which only misdemeanors or lesser

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    offenses are charged; or
        (iii) $2,500 for each assigned attorney in the representation of an indigent in an appellate
    court on a first appeal of right.
        Section 4. Section 77-32-9 is enacted to read:
         77-32-9. Reimbursement of extraordinary expense.
        (1) For the purposes of this section, an "extraordinary expense" means the collective expense
    which exceeds $500 for any particular service or item such as experts, investigators, surveys, or
    demonstrative evidence.
        (2) The county or municipality shall reimburse expenses, exclusive of overhead and
    extraordinary expense not approved by the court in accordance with this chapter, reasonably incurred
    by assigned attorneys for indigent defendants.
        (3) The assigned attorney shall file a motion with the court for approval of the proposed
    expenditure for any extraordinary expense before the expense is incurred. The motion shall be heard
    and ruled upon by a judge other than the trial judge if so requested by either party or upon the motion
    of the trial judge.
        Section 5. Repealer.
        This act repeals:
        Section 77-32-4, Time for determination of indigency.

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