SF 409

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:12am

A bill for an act
relating to public defenders; modifying provisions providing for representation
by a public defender; amending Minnesota Statutes 2008, sections 609.131,
subdivision 1; 611.16; 611.17; 611.18; 611.20, subdivisions 3, 4; repealing
Minnesota Statutes 2008, section 611.20, subdivisions 6, 7.

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

Section 1.

Minnesota Statutes 2008, section 609.131, subdivision 1, is amended to read:

Subdivision 1.

General rule.

Except as provided in subdivision 2, an alleged
misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
believes that it is in the interest of justice that the defendant not be imprisoned if convicted
and certifies that belief to the court at or before the time of arraignment or pretrial
hearing, and the court approves of the certification motion. The defendant's consent to the
certification is deleted text begin not deleted text end required. When an offense is certified as a petty misdemeanor under
this section, the defendant's eligibility for court-appointed counsel must be evaluated
as though the offense were a new text begin petty new text end misdemeanor new text begin and the defendant will not be eligible
for the appointment of a public defender new text end .

Sec. 2.

Minnesota Statutes 2008, section 611.16, is amended to read:

611.16 REQUEST FOR APPOINTMENT OF PUBLIC DEFENDER.

Any person described in section 611.14 deleted text begin or any other person entitled by law to
representation by counsel, deleted text end may at any time request the court in which the matter is pending,
or the court in which the conviction occurred, to appoint a public defender to represent
the person. In a proceeding defined by clause (2) of section 611.14, application for the
appointment of a public defender may also be made to a judge of the Supreme Court.

Sec. 3.

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 deleted text begin , or any dependent of the defendant who resides in the same
household as the defendant, receives means-tested governmental benefits deleted text end new text begin is charged with
a misdemeanor and has an annual income not greater than 150 percent of the poverty
guidelines updated periodically in the Federal Register by the United States Department of
Health and Human Services under the authority of United States Code, title 42, section
9902(2) new text end ; or

(2) new text begin the defendant is charged with a gross misdemeanor and has an annual income
not greater than 175 percent of the poverty guidelines updated periodically in the Federal
Register by the United States Department of Health and Human Services under the
authority of United States Code, title 42, section 9902(2); or
new text end

new text begin (3) the defendant is charged with a felony and has an annual income not greater than
200 percent of the poverty guidelines updated periodically in the Federal Register by the
United States Department of Health and Human Services under the authority of United
States Code, title 42, section 9902(2); or
new text end

new text begin (4) new text end 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. 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.

Sec. 4.

Minnesota Statutes 2008, section 611.18, is amended to read:

611.18 APPOINTMENT OF PUBLIC DEFENDER.

If it appears to a court that a person requesting the appointment of counsel satisfies
the requirements of this chapter, the court shall order the appropriate public defender to
represent the person deleted text begin at all further stages of the proceeding through appeal, if any deleted text end . For a
person appealing from a conviction, or a person pursuing a postconviction proceeding
and who has not already had a direct appeal of the conviction, according to the standards
of sections 611.14 new text begin , clause (2), new text end and 611.25, subdivision 1, paragraph (a), clause (2), the
deleted text begin state deleted text end new text begin chief appellate new text end public defender shall be appointed. For a person covered by section
611.14, clause (1), new text begin (3), or (4), new text end a district public defender shall be appointed to represent
that person. deleted text begin If (a) conflicting interests exist, (b) the district public defender for any other
reason is unable to act, or (c) the interests of justice require, the state public defender
may be ordered to represent a person. When the state public defender is directed by a
court to represent a defendant or other person, the state public defender may assign the
representation to any district public defender. deleted text end If at any stage of the proceedings deleted text begin , including
an appeal, deleted text end the court finds that the defendant is financially unable to pay counsel whom the
defendant had retained, the court may appoint the appropriate public defender to represent
the defendant, as provided in this section. Prior to any court appearance, a public defender
may represent a person accused of violating the law, who appears to be financially unable
to obtain counsel, and shall continue to represent the person unless it is subsequently
determined that the person is financially able to obtain counsel. The representation may
be made available at the discretion of the public defender, upon the request of the person
or someone on the person's behalf. Any law enforcement officer may notify the public
defender of the arrest of any such person.

Sec. 5.

Minnesota Statutes 2008, section 611.20, subdivision 3, is amended to read:

Subd. 3.

Reimbursement.

In each fiscal year, the commissioner of finance shall
deposit the payments in the general fund and credit them to a separate account with the
Board of Public Defense. The amount credited to this account is appropriated to the Board
of Public Defense new text begin , except that reimbursements collected in the Fourth Judicial District
shall be returned to Hennepin County to offset the county's contribution to pay for the
public defender system under section 611.26, subdivision 3a, paragraph (c) new text end .

The balance of this account does not cancel but is available until expended.
Expenditures by the board from this account for each judicial district public defense office
must be based on the amount of the payments received by the state from the courts in
each judicial district. A district public defender's office that receives money under this
subdivision shall use the money to supplement office overhead payments to part-time
attorneys providing public defense services in the district. By January 15 of each year,
the Board of Public Defense shall report to the chairs and ranking minority members of
the senate and house of representatives divisions having jurisdiction over criminal justice
funding on the amount appropriated under this subdivision, the number of cases handled
by each district public defender's office, the number of cases in which reimbursements
were ordered, the average amount of reimbursement ordered, and the average amount of
money received by part-time attorneys under this subdivision.

Sec. 6.

Minnesota Statutes 2008, section 611.20, subdivision 4, is amended to read:

Subd. 4.

Employed defendants.

A court deleted text begin shall deleted text end new text begin may new text end order a defendant who
is employed when a public defender is appointed, or who becomes employed while
represented by a public defender, to reimburse the state for the cost of the public defender.
If reimbursement is required under this subdivision, the court deleted text begin shall deleted text end new text begin may new text end order the
reimbursement when a public defender is first appointed or as soon as possible after
the court determines that reimbursement is required. The court may accept partial
reimbursement from the defendant if the defendant's financial circumstances warrant a
reduced reimbursement schedule. The court may consider the deleted text begin guidelines in subdivision 6
in determining a defendant's reimbursement schedule. If a defendant does not agree to
make payments, the court may order the defendant's employer to withhold a percentage
of the defendant's income to be turned over to the court. The percentage to be withheld
may be determined under subdivision 6 deleted text end new text begin income and assets of the defendant based on the
financial statement provided by the defendant when applying for the public defender
under section 611.17 new text end .

Sec. 7. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, section 611.20, subdivisions 6 and 7, new text end new text begin are repealed.
new text end