First Substitute S.B. 74

1

INDIGENT DEFENSE PROVISIONS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Leonard M. Blackham
5 AN ACT RELATING TO UTAH CODE OF CRIMINAL PROCEDURE; ESTABLISHING THE
6 INDIGENT DEFENSE FUND BOARD; DEFINING DUTIES OF THE BOARD;
7 AUTHORIZING THE BOARD TO CONTRACT FOR QUALIFIED LEGAL DEFENSE
8 COUNSEL FOR INDIGENTS; CREATING THE INDIGENT CAPITAL DEFENSE TRUST
9 FUND AND THE INDIGENT FELONY DEFENSE TRUST FUND; PROVIDING
10 DEFINITIONS; PROVIDING FOR PARTICIPATION BY COUNTIES IN THE FUNDS;
11 PROVIDING FOR STATE PARTICIPATION; TRANSFERRING RESPONSIBILITIES OF
12 THE CRIMINAL DEFENSE COSTS TRUST FUND FROM THE UTAH PROSECUTION
13 COUNCIL TO THE BOARD AND RENAMING FUND TO THE INDIGENT INMATE
14 TRUST FUND; AUTHORIZING THE BOARD TO REQUEST A SUPPLEMENTAL
15 APPROPRIATION FROM THE STATE TO PAY FOR ANY DEFICIT IN THE INDIGENT
16 INMATE TRUST FUND AND THE INDIGENT CAPITAL DEFENSE FUND;
17 APPROPRIATING $100,000 TO THE INDIGENT FELONY DEFENSE TRUST FUND AND
18 $50,000 TO THE INDIGENT INMATE TRUST FUND FROM THE GENERAL FUND FOR
19 THE FISCAL YEAR 1997-98 TO INITIATE THE FELONY DEFENSE TRUST FUND;
20 PROVIDING FOR CONTRIBUTIONS FROM PARTICIPATING COUNTIES TO THE
21 FUNDS; PROVIDING FOR THE BENEFITS, ADMINISTRATION, AND DISBURSEMENT
22 OF THE FUNDS; MAKING TECHNICAL CORRECTIONS; AND PROVIDING AN
23 EFFECTIVE DATE.
24 This act affects sections of Utah Code Annotated 1953 as follows:
25 AMENDS:
26 67-5a-1, as last amended by Chapter 166, Laws of Utah 1995
27 67-5a-7, as last amended by Chapter 166, Laws of Utah 1995

1 ENACTS:
2 77-32-101, Utah Code Annotated 1953
3 77-32-201, Utah Code Annotated 1953
4 77-32-401, Utah Code Annotated 1953
5 77-32-402, Utah Code Annotated 1953
6 77-32-601, Utah Code Annotated 1953
7 77-32-602, Utah Code Annotated 1953
8 77-32-603, Utah Code Annotated 1953
9 77-32-604, Utah Code Annotated 1953
10 77-32-701, Utah Code Annotated 1953
11 77-32-702, Utah Code Annotated 1953
12 77-32-703, Utah Code Annotated 1953
13 77-32-704, Utah Code Annotated 1953
14 RENUMBERS AND AMENDS:
15 77-32-301, (Renumbered from 77-32-1, as last amended by Chapter 166, Laws of Utah 1995)
16 77-32-302, (Renumbered from 77-32-2, as last amended by Chapter 161, Laws of Utah 1992)
17 77-32-303, (Renumbered from 77-32-2.1, as enacted by Chapter 161, Laws of Utah 1993)
18 77-32-304, (Renumbered from 77-32-3, as last amended by Chapter 67, Laws of Utah 1981)
19 77-32-305, (Renumbered from 77-32-5, as last amended by Chapter 248, Laws of Utah 1988)
20 77-32-306, (Renumbered from 77-32-6, as last amended by Chapter 161, Laws of Utah 1992)
21 77-32-307, (Renumbered from 77-32-7, as enacted by Chapter 15, Laws of Utah 1980)
22 77-32-308, (Renumbered from 77-32-8, as enacted by Chapter 99, Laws of Utah 1989)
23 77-32-501, (Renumbered from 67-5c-101, as enacted by Chapter 166, Laws of Utah 1995)
24 77-32-502, (Renumbered from 67-5c-103, as enacted by Chapter 166, Laws of Utah 1995)
25 REPEALS:
26 67-5c-102, as last amended by Chapter 243, Laws of Utah 1996
27 77-32-4, as enacted by Chapter 15, Laws of Utah 1980
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 67-5a-1 is amended to read:
30 67-5a-1. Utah Prosecution Council -- Duties -- Membership.
31 (1) There is created within the Office of the Attorney General the Utah Prosecution

- 2 -

1 Council, referred to as the council in this chapter.
2 (2) The council shall:
3 (a) provide training and continuing legal education for state and local prosecutors;
4 (b) provide assistance to local prosecutors; and
5 [(c) administer the negotiation and contract for legal defense counsel to an inmate as
6 provided in Section 67-5c-101; and]
7 [(d)] (c) provide reimbursement for unusual expenses related to prosecution for violations
8 of state laws.
9 (3) The council shall be composed of nine members, selected as follows:
10 (a) the attorney general or his designated representative;
11 (b) the commissioner of public safety or his designated representative;
12 (c) four elected and acting county or district attorneys designated by the county or district
13 attorneys' section of the Utah Association of Counties; a county or district attorney's term expires
14 when a successor is designated by the county or district attorneys' section or when he is no longer
15 an elected and acting county attorney or district attorney, whichever occurs first;
16 (d) two city prosecutors designated by the Utah League of Cities and Towns; a city
17 prosecutor's term expires when a successor is designated by the association or when he is no longer
18 employed as a city prosecutor, whichever occurs first; and
19 (e) the chairman of the Advisory Board of the Statewide Association of Prosecutors of
20 Utah.
21 Section 2. Section 67-5a-7 is amended to read:
22 67-5a-7. Responsibilities of the director.
23 Under the general supervision of the council and within the policies established by the
24 council, the director has the responsibility to:
25 (1) assign, supervise, and direct the staff of the council;
26 (2) implement the standards, policies, rules, and guidelines of the council;
27 (3) prepare and administer the budget of the council and comply with the Utah Budgetary
28 Procedures Act;
29 (4) conduct studies of prosecution procedures and systems in the state, including reference
30 to the district attorney prosecution system, and prepare reports and recommendations;
31 (5) maintain liaison with governmental and other public and private groups having an

- 3 -

1 interest in prosecution;
2 (6) organize and administer a program of training and continuing legal education for
3 prosecutors in the state, including establishing training standards for prosecutors;
4 (7) screen all requests addressed to any specialized investigation and prosecution unit
5 created in the Office of the Attorney General for the investigation and prosecution of any child
6 abuse offenses; and
7 [(8) administer the negotiation and contract for legal defense counsel to an inmate as
8 provided in Section 67-5c-101; and]
9 [(9)] (8) perform other duties as assigned by the council.
10 Section 3. Section 77-32-101 is enacted to read:
11 CHAPTER 32. INDIGENT DEFENSE ACT
12 Part 1. Title
13 77-32-101. Indigent Defense Act.
14 This chapter is known as the "Indigent Defense Act."
15 Section 4. Section 77-32-201 is enacted to read:
16 Part 2. General Provisions
17 77-32-201. Definitions.
18 For the purposes of this chapter:
19 (1) "Board" means the Indigent Defense Funds Board created in Section 77-32-401.
20 (2) "Indigent" means a person qualifying as an indigent under indigency standards
21 established in Part 3, Counsel for Indigents.
22 (3) "Participating county" means a county which has complied with the provisions of this
23 chapter for participation in the Indigent Capital Defense Trust Fund as provided in Sections
24 77-32-602 and 77-32-603 or the Indigent Felony Defense Trust Fund as provided in Sections
25 77-32-702 and 77-32-703.
26 (4) "Serious offense" means a felony or capital offense.
27 Section 5. Section 77-32-301, which is renumbered from Section 77-32-1 is renumbered
28 and amended to read:
29 Part 3. Counsel for Indigents
30 [77-32-1]. 77-32-301. Minimum standards for defense of an indigent.
31 Each county, city, and town shall provide for the defense of an indigent [persons] in

- 4 -

1 criminal cases in the courts and various administrative bodies of the state in accordance with the
2 following minimum standards:
3 (1) provide counsel for [every] each indigent [person] who faces the substantial probability
4 of the deprivation of the [indigent defendant's] indigent's liberty;
5 (2) afford timely representation by competent legal counsel;
6 (3) provide the investigatory [and other facilities] resources necessary for a complete
7 defense;
8 (4) assure undivided loyalty of defense counsel to the client;
9 (5) proceed with a first appeal of right; and
10 (6) prosecute other remedies before or after a conviction, considered by defense counsel
11 to be in the interest of justice except for other and subsequent discretionary appeals or
12 discretionary writ proceedings.
13 Section 6. Section 77-32-302, which is renumbered from Section 77-32-2 is renumbered
14 and amended to read:
15 [77-32-2]. 77-32-302. Assignment of counsel on request of indigent or order of
16 court.
17 (1) Counsel shall be assigned to represent each indigent [person] who is under arrest for
18 or charged with a crime in which there is a substantial probability that the penalty to be imposed
19 is confinement in either jail or prison if:
20 (a) the [defendant] indigent requests it; or
21 (b) the court on its own motion or otherwise so orders and the defendant does not
22 affirmatively waive or reject on the record the opportunity to be represented.
23 (2) (a) If the county[, city, or town] or municipality responsible to provide for the legal
24 defense of an indigent [defendant] has arranged by contract to provide those services and the court
25 has received notice or a copy of such contract, the court shall [appoint] assign the contracting
26 attorney as legal counsel to represent that [defendant] indigent.
27 (b) The court shall select and [appoint the] assign an attorney [or attorneys] if:
28 (i) the contract for indigent legal services is with multiple attorneys; or
29 (ii) the contract is with [an additional] another attorney [or attorneys] in the event of a
30 conflict of interest.
31 (c) If the court considers the [appointment] assignment of a noncontracting attorney to

- 5 -

1 provide legal services to an indigent defendant despite the existence of an indigent legal services
2 contract and the court has a copy or notice of [such] the contract, before the court may make the
3 [appointment] assignment, it shall:
4 (i) set the matter for a hearing;
5 (ii) give proper notice of the hearing to the attorney of the responsible county[, city, or
6 town of the hearing] or municipality; and
7 (iii) make findings that there is a compelling reason to appoint a noncontracting attorney.
8 (d) The [indigent defendant's] indigent's mere preference for other counsel [shall] may not
9 be considered a compelling reason justifying the appointment of a noncontracting attorney.
10 (3) The court may make a determination of indigency at any time.
11 Section 7. Section 77-32-303, which is renumbered from Section 77-32-2.1 is renumbered
12 and amended to read:
13 [77-32-2.1]. 77-32-303. Standard for court to appoint noncontracting attorney or
14 resource -- Hearing.
15 (1) For purposes of this section, "resources" means a competent investigator or other
16 appropriate means necessary for a complete defense of an indigent.
17 [(1)] (2) If a county[, city, or town] or municipality has contracted for, or otherwise made
18 arrangements for, the [appropriate facilities necessary for a complete defense of an indigent
19 defendant] legal defense of indigents, including [a competent investigator or investigators,] a
20 competent attorney and resources, the court may not appoint a noncontracting attorney or other
21 resource unless the court [shall conduct]:
22 (a) conducts a hearing with proper notice to the responsible entity to consider the
23 authorization or designation of a noncontract [facilities.] attorney or resource;
24 [(2) The court shall make findings] (b) makes a finding that there is a compelling reason
25 to authorize or designate a noncontracting [facility] attorney or resources for the indigent defendant
26 [before it may authorize or designate the same].
27 Section 8. Section 77-32-304, which is renumbered from Section 77-32-3 is renumbered
28 and amended to read:
29 [77-32-3]. 77-32-304. Duties of assigned counsel -- Compensation.
30 (1) When representing an indigent [person], the assigned counsel shall:
31 (a) [Counsel] counsel and defend [him] the indigent at every stage of the proceeding

- 6 -

1 following assignment; and
2 (b) [Prosecute] file any first appeal of right or other [remedies] remedy before or after
3 conviction that [he] the assigned counsel considers to be in the interest of justice, except for other
4 and subsequent discretionary appeals or discretionary writ proceedings.
5 (2) An assigned counsel [shall] may not have the duty or power under this section to
6 represent an indigent [defendant] in any discretionary appeal or action for a discretionary writ,
7 other than in a meaningful first appeal of right to assure the indigent [defendant] an adequate
8 opportunity to present [his] the indigent's claims fairly in the context of the appellate process of
9 this state.
10 (3) An assigned counsel for an indigent [defendant] shall be entitled to compensation upon
11 [the]:
12 (a) approval of the district court where the original trial was held[, upon];
13 (b) a showing that:
14 (i) the [defendant] indigent has been denied a constitutional right; or [that]
15 (ii) there was newly discovered evidence that would show the [defendant's] indigent's
16 innocence; and
17 (c) that the legal services rendered by counsel were:
18 (i) other than that required under this [act] chapter or under a separate fee arrangement;
19 and [were]
20 (ii) necessary for the indigent [defendant] and not for the purpose of delaying the judgment
21 of the original trier of fact.
22 Section 9. Section 77-32-305, which is renumbered from Section 77-32-5 is renumbered
23 and amended to read:
24 [77-32-5]. 77-32-305. Expenses of printing briefs, depositions, and transcripts.
25 The state, county, or municipal agency that prosecuted the indigent at trial is responsible
26 for the expenses of printing or typewriting briefs on any first [appeals] appeal of right [on behalf
27 of an indigent defendant, as well as], including expenses of depositions and other transcripts [shall
28 be paid by the state, county, or municipal agency that prosecuted the defendant at trial].
29 Section 10. Section 77-32-306, which is renumbered from Section 77-32-6 is renumbered
30 and amended to read:
31 [77-32-6]. 77-32-306. County or municipal legislative body to contract for counsel

- 7 -

1 or authorize court to appoint.
2 [Governing bodies of counties, cities, and towns] The county or municipal legislative body
3 shall either:
4 (1) contract to provide the services prescribed by this chapter through nonprofit legal aid,
5 other associations, or attorneys; or
6 [(1)] (2) authorize the court to:
7 (a) provide the services prescribed by this chapter [by appointing];
8 (b) assign a qualified attorney in each case; and [awarding him]
9 (c) award the attorney reasonable compensation and expenses to be paid by the appropriate
10 governing body[; or].
11 [(2) arrange by contract to provide those services through nonprofit legal aid, other
12 associations, or attorneys.]
13 Section 11. Section 77-32-307, which is renumbered from Section 77-32-7 is renumbered
14 and amended to read:
15 [77-32-7]. 77-32-307. Expenditures of county or municipal funds declared proper
16 -- Tax levy authorized.
17 [All expenditures] (1) An expenditure by [the counties and the incorporated cities or towns
18 which are] any county or incorporated municipality is considered a proper use of public funds if
19 the expenditure is necessary [and proper] to carry out the purposes defined in this chapter
20 [including donations].
21 (2) A donation to a nonprofit legal aid or other [associations] association charged with the
22 duty to provide the services [are declared to be] is a proper [uses] use of public funds [and the
23 counties and].
24 (3) Any county or incorporated [areas] area of the state [are] is authorized to levy and
25 collect taxes [for such purposes] to meet the requirements of this chapter.
26 Section 12. Section 77-32-308, which is renumbered from Section 77-32-8 is renumbered
27 and amended to read:
28 [77-32-8]. 77-32-308. Pro bono criminal representation -- Liability limits.
29 Counsel assigned by a court to represent [a person found] an indigent in criminal,
30 post-conviction, or habeas corpus proceedings is immune from suit if [he] the attorney provides
31 the legal services:

- 8 -

1 (1) at no cost; or
2 (2) for only a substantially reduced cost that is applied to, but does not cover, expenses of
3 the service; and
4 [(2)] (3) without gross negligence or willful misconduct.
5 Section 13. Section 77-32-401 is enacted to read:
6 Part 4. Board
7 77-32-401. Indigent Defense Funds Board -- Members -- Administrative support.
8 (1) There is created the Indigent Defense Funds Board composed of the following nine
9 members:
10 (a) two members who are current commissioners or county executives of participating
11 counties appointed by the board of directors of the Utah Association of Counties;
12 (b) one member at large appointed by the board of directors of the Utah Association of
13 Counties;
14 (c) two members who are current county attorneys of participating counties appointed by
15 the Utah Prosecution Council;
16 (d) the director of the Division of Finance or his designee;
17 (e) one member appointed by the Administrative Office of the Courts; and
18 (f) two members who are private attorneys engaged in or familiar with the criminal
19 defense practice appointed by the members of the board listed in Subsections (a) through (e).
20 (2) Members shall serve four-year terms; however, one of the county commissioners, and
21 one of the county attorneys appointed to the initial board shall serve two-year terms and the
22 remaining other members of the initial board shall be appointed for four-year terms.
23 (3) A vacancy is created if a member appointed under:
24 (a) Subsection (1)(a) no longer serves as a county commissioner or county executive; or
25 (b) Subsection (1)(b) no longer serves as a county attorney.
26 (4) When a vacancy occurs in the membership for any reason, a replacement shall be
27 appointed for the remaining unexpired term in the same manner as the original appointment.
28 (5) The board may contract for administrative support for up to $15,000 annually to be
29 paid proportionally from each fund.
30 (6) (a) (i) Members who are not government employees shall receive no compensation or
31 benefits for their services, but may receive per diem and expenses incurred in the performance of

- 9 -

1 the member's official duties at the rates established by the Division of Finance under Sections
2 63A-3-106 and 63A-3-107.
3 (ii) Members may decline to receive per diem and expenses for their service.
4 (b) (i) State government officer and employee members who do not receive salary, per
5 diem, or expenses from their agency for their service may receive per diem and expenses incurred
6 in the performance of their official duties from the board at the rates established by the Division
7 of Finance under Sections 63A-3-106 and 63A-3-107.
8 (ii) State government officer and employee members may decline to receive per diem and
9 expenses for their service.
10 (c) Legislators on the committee shall receive compensation and expenses as provided by
11 law and legislative rule.
12 (d) (i) Local government members who do not receive salary, per diem, or expenses from
13 the entity that they represent for their service may receive per diem and expenses incurred in the
14 performance of their official duties at the rates established by the Division of Finance under
15 Sections 63A-3-106 and 63A-3-107.
16 (ii) Local government members may decline to receive per diem and expenses for their
17 service.
18 (6) Per diem and expenses for board members shall be paid proportionally from each fund.
19 (7) Five members shall constitute a quorum and, if a quorum is present, the action of a
20 majority of the members present shall constitute the action of the board.
21 Section 14. Section 77-32-402 is enacted to read:
22 77-32-402. Duties of board.
23 (1) The board shall:
24 (a) establish rules and procedures for the application by counties for disbursements, and
25 the screening and approval of the applications for monies from the:
26 (i) Indigent Inmate Trust Fund established in Part 5;
27 (ii) Indigent Capital Defense Trust Fund established in Part 6; and
28 (iii) Indigent Felony Defense Trust Fund established in Part 7;
29 (b) receive, screen, and approve or disapprove the application of counties for
30 disbursements from each fund;
31 (c) calculate the amount of the annual contribution to be made to the funds by each

- 10 -

1 participating county;
2 (d) prescribe forms for the application for monies from each fund;
3 (e) oversee and approve the disbursement of monies from each fund as provided in
4 Sections 77-32-401, 77-32-502, 77-32-606, and 77-32-705;
5 (f) establish its own rules of procedure, elect its own officers, and appoint committees of
6 its members and other people as may be reasonable and necessary;
7 (g) negotiate, enter into, and administer contracts with legal counsel, qualified under and
8 meeting the standards consistent with this chapter, to provide defense counsel services to:
9 (i) indigents prosecuted in participating counties for serious offenses in violation of state
10 law; and
11 (ii) an indigent inmate who is incarcerated in certain counties.
12 (2) The board may provide to the court a list of attorneys qualified under Utah Rules of
13 Criminal Procedure, Rule 8, with which the board has a preliminary contract to defend indigent
14 cases for an assigned rate.
15 Section 15. Section 77-32-501, which is renumbered from Section 67-5c-101 is
16 renumbered and amended to read:
17 Part 5. Indigent Inmates
18 [67-5c-101]. 77-32-501. Contracts for defense of indigent inmates --
19 Qualifications -- Prosecutorial duties.
20 (1) The [Criminal Defense Committee as provided in Section 67-5c-102] board shall
21 [assist the Utah Prosecution Council to] enter into contracts with qualified legal defense counsel
22 to provide defense counsel services for an indigent inmate who is incarcerated in a state prison
23 located in a county of the third, fourth, fifth, or sixth class as defined in Section 17-16-13, is
24 charged with having committed a crime within that facility, and will require defense counsel.
25 (2) Payment for the representation, costs, and expenses of legal defense counsel shall be
26 made from the [Criminal Defense Costs] Indigent Inmate Trust Fund as provided in Section
27 [67-5c-103] 77-32-502.
28 (3) The defense counsel shall maintain the minimum qualifications as provided in Section
29 [77-32-1] 77-32-301.
30 (4) The county attorney or district attorney of a county of the third, fourth, fifth, or sixth
31 class shall function as the prosecuting entity.

- 11 -

1 (5) (a) The county of the third, fourth, fifth, or sixth class where a state prison is located
2 may impose an additional tax levy by ordinance at .0001 per dollar of taxable value in the county.
3 (b) If the county governing body imposes the additional tax levy by ordinance, the money
4 shall be deposited in the [Criminal Defense Costs] Indigent Inmate Trust Fund as provided in
5 Section [67-5c-103] 77-32-502 to fund the purposes of this section.
6 (c) A county that chooses not to impose the additional levy by ordinance may not receive
7 any benefit from the [Criminal Defense Costs] Indigent Inmate Trust fund.
8 Section 16. Section 77-32-502, which is renumbered from Section 67-5c-103 is
9 renumbered and amended to read:
10 [67-5c-103]. 77-32-502. Indigent Inmate Trust Fund -- Creation.
11 (1) There is created an expendable trust fund known as the [Criminal Defense Costs]
12 Indigent Inmate Trust Fund to be [administered and distributed] disbursed by the [Utah
13 Prosecution Council] Division of Finance at the direction of the board and in accordance with
14 contracts made under Section [67-5c-201 in cooperation with the Division of Finance] 77-32-402.
15 (2) Monies deposited in this trust fund only shall be used:
16 (a) to pay for the representation, costs, and expenses of legal defense counsel for [legal
17 defense counsel of] an indigent inmate in a state prison located in a county of the third, fourth,
18 fifth, or sixth class as defined in Section 17-16-13 who is charged with having committed a crime
19 within the facility, and who will require defense counsel[.]; and
20 (b) for administrative costs pursuant to Section 77-32-401.
21 (3) The trust fund [shall be funded from] consists of:
22 (a) proceeds received from counties that impose the additional tax levy by ordinance under
23 Subsection [67-5c-101] 77-32-501(5) [to be deposited in the Criminal Defense Costs Trust Fund.]
24 which shall be the total county obligation for payment of costs listed in Subsection (2) for defense
25 of indigent inmates;
26 (b) appropriations made to the fund by the Legislature; and
27 (c) interest and earnings from the investment of fund monies.
28 (4) Fund monies shall be invested by the state treasurer with the earnings and interest
29 accruing to the fund.
30 (5) In any calendar year in which the fund runs a deficit, or is projected to run a deficit,
31 the board shall request a supplemental appropriation from the Legislature in the following general

- 12 -

1 session to pay for the deficit. The state shall pay any or all of the reasonable and necessary monies
2 for the deficit into the Indigent Inmate Trust Fund.
3 [(4)] (6) Notwithstanding Subsection (1), any fund balance in excess of $1,000,000
4 remaining in the trust fund as of June 30 of any fiscal year shall be transferred to the General Fund.
5 Section 17. Section 77-32-601 is enacted to read:
6 Part 6. Indigent Capital Defense Trust Fund
7 77-32-601. Establishment of Indigent Capital Defense Trust Fund -- Use of fund --
8 Compensation for indigent legal defense from fund.
9 (1) For purposes of this part, "fund" means the Indigent Capital Defense Trust Fund.
10 (2) There is established an expendable trust fund known as the Indigent Capital Defense
11 Trust Fund which shall be nonlapsing and shall be disbursed by the Division of Finance at the
12 direction of the board and subject to the provisions of this chapter.
13 (3) The fund consists of:
14 (a) monies received from participating counties as provided in Sections 77-32-602 and
15 77-32-603;
16 (b) appropriations made to the fund by the Legislature as provided in Section 77-32-604;
17 and
18 (c) interest and earnings from the investment of fund monies.
19 (4) Fund monies shall be invested by the state treasurer with the earnings and interest
20 accruing to the fund.
21 (5) The fund shall be used to assist participating counties with financial resources, as
22 provided in Subsection (6), to fulfill their constitutional and statutory mandates for the provision
23 of an adequate defense for indigents prosecuted for the violation of state laws in cases involving
24 capital offenses.
25 (6) Monies allocated to or deposited in this fund shall be used only:
26 (a) to reimburse participating counties for expenditures made for an attorney appointed
27 to represent an indigent, other than a state inmate in a state prison, prosecuted for a capital offense
28 in a participating county; and
29 (b) for administrative costs pursuant to Section 77-32-401.
30 Section 18. Section 77-32-602 is enacted to read:
31 77-32-602. County participation.

- 13 -

1 (1) (a) Any county may participate in the fund subject to the provisions of this chapter.
2 Any county that chooses not to participate, or is not current in its contributions, is ineligible to
3 receive money from the fund.
4 (b) The board may revoke a county's participation in the fund if the county fails to pay its
5 assessments when due.
6 (2) To participate in the fund, the legislative body of a county shall:
7 (a) adopt a resolution approving participation in the fund and committing that county to
8 fulfill the assessment requirements as set forth in Subsection (3) and Section 77-32-603; and
9 (b) submit a certified copy of that resolution together with an application to the board.
10 (3) By January 1 of each year, a participating county shall contribute to the fund an amount
11 computed in accordance with Section 77-32-603.
12 (4) (a) Any participating county may withdraw from participation in the fund upon:
13 (i) adoption by its legislative body of a resolution to withdraw; and
14 (ii) notice to the board by January 1 of the year prior to withdrawal.
15 (5) A county withdrawing from participation in the fund, or whose participation in the
16 fund has been revoked for failure to pay its assessments when due, shall forfeit the right to:
17 (a) any previously-payed assessment;
18 (b) relief from its obligation to pay its assessment during the period of its participation in
19 the fund; and
20 (c) any benefit from the fund, including reimbursement of costs which accrued after the
21 last day of the period for which the county has paid its assessment.
22 Section 19. Section 77-32-603 is enacted to read:
23 77-32-603. County and state obligations.
24 (1) (a) Each participating county shall pay into the fund annually an amount equal to .0001
25 per dollar of taxable value in its county until the board determines the fund is sufficient and it is
26 unlikely that a deficit will occur in the fund in any calendar year.
27 (b) The amount paid by the participating county pursuant to Subsection (1)(a) shall be the
28 total county obligation for payment of costs pursuant to Section 77-32-601.
29 (2) (a) After the first year of operation of the fund, any county that elects to initiate
30 participation in the fund, or reestablish participation in the fund after participation was terminated,
31 shall be required to make an equity payment in addition to the assessment provided in Subsection

- 14 -

1 (1).
2 (b) The equity payment shall be determined by the board and represent what the county's
3 equity in the fund would be if the county had made assessments into the fund for each of the
4 previous two years.
5 (3) If the fund balance after contribution by the state and participating counties is
6 insufficient to replenish the fund annually to at least $250,000, the board by a majority vote may
7 terminate the fund.
8 (4) If the fund is terminated, all remaining funds shall continue to be administered and
9 disbursed in accordance with the provision of this chapter until exhausted, at which time the fund
10 shall cease to exist.
11 (5) (a) If the fund runs a deficit during any calendar year, the state is responsible for the
12 deficit.
13 (b) In the calendar year following a deficit year, the board shall increase the assessment
14 required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
15 combined amount becomes the base assessment until another deficit year occurs.
16 (6) In any calendar year in which the fund runs a deficit, or is projected to run a deficit,
17 the board shall request a supplemental appropriation to pay for the deficit from the Legislature in
18 the following general session. The state shall pay any or all of the reasonable and necessary
19 monies for the deficit into the Indigent Capital Defense Trust Fund
20 Section 20. Section 77-32-604 is enacted to read:
21 77-32-604. Application and qualification for fund money.
22 (1) Any participating county may apply to the board for benefits from the fund if that
23 county has incurred, or reasonable anticipates incurring, expenses in the defense of an indigent for
24 capital offenses in violation of state law arising out of a single criminal episode.
25 (2) No application shall be made nor benefits provided from the fund for cases filed before
26 September 1, 1997.
27 (3) If the application of a participating county is approved by the board, the board shall
28 negotiate, enter into, and administer a contract with counsel for the indigent and costs incurred for
29 the defense of that indigent, including fees for counsel and reimbursement for defense costs
30 incurred by defense counsel.
31 (4) Nonparticipating counties are responsible for paying indigent costs in their county and

- 15 -

1 shall not be eligible for any legislative relief. However, nonparticipating counties may provide for
2 payment of indigent costs through an increase in the county tax levy as provided in Section
3 77-32-307.
4 (5) This part may not become effective unless the board has received resolutions before
5 August 1, 1997, from at least 15 counties adopted as described in Subsection 77-32-602(2).
6 Section 21. Section 77-32-701 is enacted to read:
7 Part 7. Indigent Felony Defense Trust Fund
8 77-32-701. Establishment of Indigent Felony Defense Trust Fund -- Use of fund --
9 Compensation for indigent legal defense from fund.
10 (1) For purposes of this part, "fund" means the Indigent Felony Defense Trust Fund.
11 (2) There is established an expendable trust fund known as the Indigent Felony Defense
12 Trust Fund which shall be nonlapsing and shall be disbursed by the Division of Finance at the
13 direction of the board and subject to the provisions of this chapter.
14 (3) The fund consists of:
15 (a) monies received from participating counties as provided in Sections 77-32-702 and
16 77-32-703;
17 (b) a one-time appropriation by the Legislature; and
18 (c) interest and earnings from the investment of fund monies.
19 (4) Fund monies shall be invested by the state treasurer with the earnings and interest
20 accruing to the fund.
21 (5) The fund shall be used to assist participating counties with the financial resources, as
22 provided in Subsection (6), to fulfill their constitutional and statutory mandates for the provision
23 of an adequate defense for indigents prosecuted for the violation of state laws in cases involving
24 felony offenses.
25 (6) Monies allocated to or deposited in this fund shall be used only:
26 (a) to reimburse participating counties for expenditures made for an attorney appointed
27 to represent an indigent, other than a state inmate in a state prison, prosecuted for a felony in a
28 participating county; and
29 (b) for administrative costs pursuant to Section 77-32-401.
30 Section 22. Section 77-32-702 is enacted to read:
31 77-32-702. County participation.

- 16 -

1 (1) (a) Any county may participate in the fund subject to the provisions of this chapter.
2 Any county that chooses not to participate, or is not current in its contributions, is ineligible to
3 receive money from the fund.
4 (b) The board may revoke a county's participation in the fund if the county fails to pay its
5 assessments when due.
6 (2) To participate in the fund, the legislative body of a county shall:
7 (a) adopt a resolution approving participation in the fund and committing that county to
8 fulfill the assessment requirements as set forth in Subsection (3) and Section 77-32-703; and
9 (b) submit a certified copy of that resolution together with an application to the board.
10 (3) By January 1 of each year, a participating county shall contribute to the fund an amount
11 computed in accordance with Section 77-32-703.
12 (4) (a) Any participating county may withdraw from participation in the fund upon:
13 (i) adoption by its legislative body of a resolution to withdraw; and
14 (ii) notice to the board by January 1 of the year prior to withdrawal.
15 (5) A county withdrawing from participation in the fund, or whose participation in the
16 fund has been revoked for failure to pay its assessments when due, shall forfeit the right to:
17 (a) any previously-payed assessment;
18 (b) relief from its obligation to pay its assessment during the period of its participation in
19 the fund; and
20 (c) any benefit from the fund, including reimbursement of costs which accrued after the
21 last day of the period for which the county has paid its assessment.
22 (6) This part may not become effective unless the board has received resolutions before
23 August 1, 1997, from at least 15 counties adopted as described in Subsection (2).
24 Section 23. Section 77-32-703 is enacted to read:
25 77-32-703. Computing participating county assessments.
26 (1) Each participating county shall pay into the fund annually an amount equal to .00005
27 per dollar of taxable value in its county until the board determines the fund is sufficient and it is
28 unlikely that a deficit will occur in the fund in any calendar year.
29 (2) (a) After the first year of operation of the fund, any county that elects to initiate
30 participation in the fund, or reestablish participation in the fund after participation was terminated,
31 shall be required to make an equity payment, in addition to the assessment provided in Subsection

- 17 -

1 (1).
2 (b) The equity payment shall be determined by the board and represent what the county's
3 equity in the fund would be if the county had made assessments into the fund for each of the
4 previous two years.
5 (3) (a) If the fund runs a deficit during any calendar year, the participating counties shall
6 pay an amount equal to the deficit in the fund by the end of the first quarter of the following year.
7 (b) In the calendar year following a deficit year, the board shall increase the assessment
8 required by Subsection (1) by an amount at least equal to the deficit of the previous year, which
9 combined amount becomes the base assessment until another deficit year occurs.
10 (4) After the initial year of the fund, if the participating counties are unable to replenish
11 the fund annually to at least $200,000, the board by a majority vote may terminate the fund.
12 (5) If the fund is terminated, all remaining funds shall continue to be administered and
13 disbursed in accordance with the provision of this chapter until exhausted, at which time the fund
14 shall cease to exist.
15 Section 24. Section 77-32-704 is enacted to read:
16 77-32-704. Application and qualification for fund money.
17 (1) Any participating county may apply to the board for benefits from the fund if that
18 county has incurred, or reasonably anticipates incurring, expenses in excess of $20,000 in the
19 defense of an indigent for felony offenses in violation of state law arising out of a single criminal
20 episode.
21 (2) No application shall be made nor benefits provided from the fund for cases filed before
22 September 1, 1997.
23 (3) (a) If the application of a participating county is approved by the board, the board shall
24 negotiate, enter into, and administer a contract with counsel for the indigent and costs incurred for
25 the defense of that indigent, including fees for counsel and reimbursement for defense costs
26 incurred by defense counsel.
27 (b) Fees for counsel and reimbursement for defense costs of an indigent are as follows:
28 (i) $20,000 or more shall be paid from the fund; and
29 (ii) up to $20,000 shall be paid by the participating county.
30 (4) Nonparticipating counties are responsible for paying indigent costs in their county and
31 shall not be eligible for any legislative relief. However, nonparticipating counties may provide for

- 18 -

1 payment of indigent costs through an increase in the county tax levy as provided in Section
2 77-32-307.
3 (5) This part may not become effective unless the board has received resolutions before
4 August 1, 1997, from at least 15 counties adopted as described in Subsection 77-32-702(2).
5 Section 25. Repealer.
6 This act repeals:
7 Section 67-5c-102, Criminal Defense Committee for State Prison Inmates -- Creation
8 -- Membership -- Director -- Terms -- Quorum -- Per diem and expenses -- Duties.
9 Section 77-32-4, Time for determination of indigency.
10 Section 26. Appropriations.
11 (1) (a) There is appropriated $100,000 from the General Fund to the Indigent Felony
12 Defense Trust Fund for fiscal year 1997-98 to initiate the fund and to provide defense counsel for
13 indigents who are accused of a felony offense and who are not state prison inmates.
14 (b) The money appropriated in Subsection (1)(a) is nonlapsing
15 (2) (a) There is appropriated $50,000 from the General Fund to the Indigent Inmate Trust
16 Fund for fiscal year 1997-98 to replenish the fund and to provide defense counsel for certain
17 indigent inmates in state prisons as provided in Section 77-32-501.
18 (b) The money appropriated in Subsection (2)(a) is nonlapsing.
19 Section 27. Effective date.
20 This act takes effect on July 1, 1997.

- 19 -