H.B. 272

1

INDIGENT DEFENSE ACT AMENDMENTS
2 2011 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Kay L. McIff
5 Senate Sponsor: Lyle W. Hillyard
6
7 LONG TITLE
8 General Description:
9 This bill requires the court, when making a determination of indigency for a defendant,
10 to consider the reasonableness of the fees and expenses charge by privately retained
11 defense counsel.
12 Highlighted Provisions:
13 This bill:
14 . amends the definition of compelling reason; and
15 . requires the court, when making a determination of indigency, to consider the
16 reasonableness of fees and expenses charged by privately retained defense counsel.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 77-32-201, as last amended by Laws of Utah 2006, Chapter 49
24 77-32-202, as last amended by Laws of Utah 2002, Chapter 263
25
26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 77-32-201 is amended to read:

28 77-32-201. Definitions.
29 For the purposes of this chapter:
30 (1) "Board" means the Indigent Defense Funds Board created in Section 77-32-401 .
31 (2) "Compelling reason" [may] shall include one or more of the following
32 circumstances relating to the contracting attorney:
33 (a) a conflict of interest;
34 (b) the contracting attorney does not have sufficient expertise to provide an effective
35 defense of the indigent; or
36 (c) the defense resource is insufficient or lacks expertise to provide a complete defense.
37 (3) "Defense resources" means a competent investigator, expert witness, or other
38 appropriate means necessary, for an effective defense of an indigent, but does not include legal
39 counsel.
40 (4) "Indigent" means a person qualifying as an indigent under indigency standards
41 established in Part 3, Counsel for Indigents.
42 (5) "Legal aid association" means a nonprofit defense association that provides counsel
43 and defense resources for indigent defendants.
44 (6) "Legal defender's office" means a department of county government created and
45 authorized by the county legislative body to provide legal representation in criminal matters to
46 indigent defendants.
47 (7) "Legal defense" means legal counsel, defense resources, or both.
48 (8) "Participating county" means a county which has complied with the provisions of
49 this chapter for participation in the Indigent Capital Defense Trust Fund as provided in
50 Sections 77-32-602 and 77-32-603 or the Indigent Felony Defense Trust Fund as provided in
51 Sections 77-32-702 and 77-32-703 .
52 (9) "Serious offense" means a felony or capital felony.
53 Section 2. Section 77-32-202 is amended to read:
54 77-32-202. Procedure for determination of indigency -- Standards.
55 (1) A determination of indigency or continuing indigency of any defendant may be
56 made by the court at any stage of the proceedings.
57 (2) (a) Any defendant claiming indigency who is charged with a crime the penalty of
58 which is a class A misdemeanor or felony shall file with the court a fully complete affidavit

59 verified by a notary or other person authorized by law to administer an oath and file a copy of
60 that affidavit with the prosecuting entity. The affidavit shall contain the factual information
61 required in this section and by the court.
62 (b) A defendant claiming indigency who is charged with a crime the penalty of which
63 is less than a class A misdemeanor is not required to comply with the requirements of
64 Subsection (2)(a) and Subsection (4).
65 (3) (a) "Indigency" means that a person:
66 (i) does not have sufficient income, assets, credit, or other means to provide for the
67 payment of legal counsel and all other necessary expenses of representation without depriving
68 that person or the family of that person of food, shelter, clothing, and other necessities; or
69 (ii) has an income level at or below 150% of the United States poverty level as defined
70 by the most recently revised poverty income guidelines published by the United States
71 Department of Health and Human Services; and
72 (iii) has not transferred or otherwise disposed of any assets since the commission of the
73 offense with the intent of establishing eligibility for the appointment of counsel under this
74 chapter.
75 (b) In making a determination of indigency, the court shall consider:
76 (i) the probable expense and burden of defending the case;
77 (ii) the ownership of, or any interest in, any tangible or intangible personal property or
78 real property, or reasonable expectancy of any such interest;
79 (iii) the amounts of debts owned by the defendant or that might reasonably be incurred
80 by the defendant because of illness or other needs within the defendant's family;
81 (iv) number, ages, and relationships of any dependents; [and]
82 [(v) other relevant factors.]
83 (v) the reasonableness of fees and expenses charged to the defendant by the defendant's
84 attorney where the defendant is represented by privately retained defense counsel; and
85 (vi) other factors considered relevant by the court.
86 (c) In determining the reasonableness of the fees and expenses charged by privately
87 retained defense counsel, the court shall consider the provisions of Section 77-32-304.5 .
88 (4) Upon making a finding of indigence, the court shall enter the findings on the record
89 and enter an order assigning defense counsel to represent the defendant in the case. The clerk

90 of the court shall send a copy of the affidavit and order to the prosecutor.
91 (5) If the county or municipality providing the defense counsel has any objections to or
92 concerns with the finding of indigency and assignment of defense counsel or the continuing of
93 indigency status and assignment of a public defender, it shall file notice with the court and a
94 hearing shall be scheduled to review the findings and give the county or municipality the
95 opportunity to present evidence and arguments as to the reasons the finding of indigency
96 should be reversed.
97 (6) (a) If the trial court finds within one year after the determination of indigency that
98 any defendant was erroneously or improperly determined to be indigent, the county or
99 municipality may proceed against that defendant for the reasonable value of the services
100 rendered to the defendant, including all costs paid by the county or municipality in providing
101 the defense counsel.
102 (b) Subsection (6)(a) does not affect any restitution required of the defendant by the
103 court pursuant to Title 77, Chapter 32a, Defense Costs.
104 (c) A defendant claiming indigency has a continuing duty to inform the court of any
105 material changes or change in circumstances that may affect the determination of his eligibility
106 for indigency.
107 (d) Any person who intentionally or knowingly makes a material false statement or
108 omits a material fact in an affidavit for indigency is guilty of a class B misdemeanor.




Legislative Review Note
as of 1-28-11 11:04 AM

Office of Legislative Research and General Counsel