HF 1145

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:44am

A bill for an act
relating to public safety; modifying application request for payment of
investigative and expert services for indigent defendants; amending Minnesota
Statutes 2008, sections 611.17; 611.21.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 611.17, is amended to read:

611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
STANDARDS FOR DISTRICT PUBLIC DEFENSE ELIGIBILITY.

(a) Each judicial district must screen requests for representation by the district public
defender. A defendant is financially unable to obtain counsel if:

(1) the defendant, or any dependent of the defendant who resides in the same
household as the defendant, receives means-tested governmental benefits; or

(2) the defendant, through any combination of liquid assets and current income,
would be unable to pay the reasonable costs charged by private counsel in that judicial
district for a defense of the same matter.

(b) Upon a request for the appointment of counsel, the court shall make appropriate
inquiry into the financial circumstances of the applicant, who shall submit a financial
statement under oath or affirmation setting forth the applicant's assets and liabilities,
including the value of any real property owned by the applicant, whether homestead or
otherwise, less the amount of any encumbrances on the real property, the source or sources
of income, and any other information required by the court. The applicant shall be under
a continuing duty while represented by a public defender to disclose any changes in the
applicant's financial circumstances that might be relevant to the applicant's eligibility for a
public defender. The state public defender shall furnish appropriate forms for the financial
statements. The forms must contain conspicuous notice of the applicant's continuing duty
to disclose to the court changes in the applicant's financial circumstances. The forms must
also contain conspicuous notice of the applicant's obligation to make a co-payment for the
services of the district public defender, as specified under paragraph (c). The information
contained in the statement shall be confidential and for the exclusive use of the court
and the public defender appointed by the court to represent the applicant except for any
prosecution under section 609.48 new text begin or application under section 611.21 new text end . A refusal to execute
the financial statement or produce financial records constitutes a waiver of the right to the
appointment of a public defender. The court shall not appoint a district public defender to
a defendant who is financially able to retain private counsel but refuses to do so.

An inquiry to determine financial eligibility of a defendant for the appointment of
the district public defender shall be made whenever possible prior to the court appearance
and by such persons as the court may direct. This inquiry may be combined with the
prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
subdivision 3. In no case shall the district public defender be required to perform this
inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
conduct a financial inquiry. The inquiry must include the following:

(1) the liquidity of real estate assets, including the defendant's homestead;

(2) any assets that can be readily converted to cash or used to secure a debt;

(3) the determination of whether the transfer of an asset is voidable as a fraudulent
conveyance; and

(4) the value of all property transfers occurring on or after the date of the alleged
offense. The burden is on the accused to show that he or she is financially unable to afford
counsel. Defendants who fail to provide information necessary to determine eligibility
shall be deemed ineligible. The court must not appoint the district public defender as
advisory counsel.

(c) Upon disposition of the case, an individual who has received public defender
services shall pay to the court a $28 co-payment for representation provided by a public
defender, unless the co-payment is, or has been, waived by the court.

The co-payment must be credited to the general fund. If a term of probation is
imposed as a part of an offender's sentence, the co-payment required by this section must
not be made a condition of probation. The co-payment required by this section is a civil
obligation and must not be made a condition of a criminal sentence.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2009.
new text end

Sec. 2.

Minnesota Statutes 2008, section 611.21, is amended to read:

611.21 SERVICES OTHER THAN deleted text begin COUNSEL deleted text end new text begin PUBLIC DEFENDER new text end .

(a) deleted text begin Counsel deleted text end new text begin A public defender new text end appointed by the court for an indigent defendant, or
representing a defendant who, at the outset of the prosecution, has an annual income not
greater than 125 percent of the poverty line established under United States Code, title 42,
section 9902(2), may file an deleted text begin ex parte deleted text end application requesting investigative, expert, or other
services necessary to an adequate defense in the case. new text begin The public defender shall provide
written notice of the application to the prosecutor at least five days prior to the hearing.
new text end

new text begin (b) The application shall include:
new text end

new text begin (1) an updated financial statement required under section 611.17 from the defendant;
and
new text end

new text begin (2) an affidavit from the chief district public defender specifying:
new text end

new text begin (i) the annual allotted budget for the requested services at both the district and
state level;
new text end

new text begin (ii) that the entire allotted budget for the requested services has been exhausted for
the fiscal year at both the district and state level;
new text end

new text begin (iii) that there is no budget surplus in the district or state public defender budget for
the previous year, and none is expected for the current year; and
new text end

new text begin (iv) that there is no contingency fund or other source of funds in the district or state
public defender budget to cover the expenses.
new text end

Upon finding, after appropriate inquiry in deleted text begin an ex parte proceeding deleted text end new text begin a hearing new text end , that the
services are necessary and that the defendant is financially unable to obtain them, the
court shall authorize deleted text begin counsel deleted text end new text begin the public defender new text end to obtain the services on behalf of the
defendant. The court may establish a limit on the amount which may be expended or
promised for such services. The court may, in the interests of justice, and upon a finding
that timely procurement of necessary services could not await prior authorization, ratify
such services after they have been obtained, but such ratification shall be given only in
unusual situations. The court shall determine reasonable compensation for the services
and direct payment by the county in which the prosecution originated, to the organization
or person who rendered them, upon the filing of a claim for compensation supported by
an affidavit specifying the time expended, services rendered, and expenses incurred on
behalf of the defendant, and the compensation received in the same case or for the same
services from any other source.

deleted text begin (b) deleted text end new text begin (c) new text end The compensation to be paid to a person for such service rendered to a
defendant under this section, or to be paid to an organization for such services rendered by
an employee, may not exceed $1,000, exclusive of reimbursement for expenses reasonably
incurred, unless payment in excess of that limit is certified by the court as necessary to
provide fair compensation for services of an unusual character or duration and the amount
of the excess payment is approved by the chief judge of the district. The chief judge of the
judicial district may delegate approval authority to an active district judge.

deleted text begin (c) deleted text end new text begin (d) new text end If the court denies authorizing deleted text begin counsel deleted text end new text begin the public defender new text end to obtain services
on behalf of the defendant, the court shall make written findings of fact and conclusions of
law that state the basis for determining that deleted text begin counsel deleted text end new text begin the public defender new text end may not obtain
services on behalf of the defendant. When the court issues an order denying deleted text begin counsel deleted text end new text begin the
public defender new text end the authority to obtain services, the defendant may appeal immediately
from that order to the Court of Appeals and may request an expedited hearing.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2009.
new text end