SF 3077

1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to public defense; modifying right to public defender representation;
amending Minnesota Statutes 2004, sections 260C.163, subdivision 3; 611.14;
611.16; 611.18; 611.25, subdivision 1; 611.26, subdivision 6.

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

Section 1.

Minnesota Statutes 2004, section 260C.163, subdivision 3, is amended to
read:

Subd. 3.

Appointment of counsel.

(a) The child, new text begin custodial new text end parent, guardian or
custodian has the right to effective assistance of counsel in connection with a proceeding
in juvenile court.

(b) Except in proceedings where the sole basis for the petition is habitual truancy, if
the child, new text begin custodial new text end parent, guardian, or custodian desires counsel but is unable to employ
it, the court shall appoint counsel to represent the child who is ten years of age or older
or the deleted text begin parents or deleted text end new text begin custodial parent, new text end guardian new text begin , or custodian new text end in any case in which it feels
that such an appointment is appropriate.

(c) In any proceeding where the sole basis for the petition is habitual truancy, the
child, new text begin custodial new text end parent, guardian, and custodian do not have the right to appointment of a
public defender or other counsel at public expense. However, before any out-of-home
placement, including foster care or inpatient treatment, can be ordered, the court must
appoint a public defender or other counsel at public expense in accordance with paragraph
(b).

(d) Counsel for the child shall not also act as the child's guardian ad litem.

(e) In any proceeding where the subject of a petition for a child in need of
protection or services is not represented by an attorney, the court shall determine the
child's preferences regarding the proceedings, if the child is of suitable age to express
a preference.

Sec. 2.

Minnesota Statutes 2004, section 611.14, is amended to read:

611.14 RIGHT TO REPRESENTATION BY PUBLIC DEFENDER.

The following persons who are financially unable to obtain counsel are entitled to be
represented by a public defender:

(1) a person charged with a felony, gross misdemeanor, or misdemeanor including a
person charged under sections 629.01 to 629.29;

(2) a person appealing from a conviction of a felony or gross misdemeanor, or
a person convicted of a felony or gross misdemeanor, who is pursuing a postconviction
proceeding and who has not already had a direct appeal of the conviction, but if the person
pled guilty and received a presumptive sentence or a downward departure in sentence,
and the state public defender reviewed the person's case and determined that there was no
basis for an appeal of the conviction or of the sentence, then the state public defender may
decline to represent the person in a postconviction remedy case;

(3) a person who is entitled to be represented by counsel under section 609.14,
subdivision 2; deleted text begin or
deleted text end

(4) a minor ten years of age or older who is entitled to be represented by counsel
under section 260B.163, subdivision 4, or 260C.163, subdivision 3 deleted text begin . deleted text end new text begin ; or new text end

new text begin (5) a custodial parent who is entitled to be represented by counsel under section
260C.163, subdivision 3, or, if there is no custodial parent, the guardian or the custodian
of the child, except that in cases governed by the Indian Child Welfare Act, the district
public defender may represent both parents regardless of whether they have custody of the
child, or the guardian or custodian of the child.
new text end

new text begin The Board of Public Defense must not provide or pay for public defender services to
persons other than those entitled to representation under this section.
new text end new text begin new text end

Sec. 3.

Minnesota Statutes 2004, 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. 4.

Minnesota Statutes 2004, 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 at all further stages of the proceeding through appeal, if any. 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 and 611.25, subdivision 1, paragraph (a), clause (2), the state public
defender shall be appointed. For a person covered by section 611.14, clause (1), new text begin (3),
(4), or (5), new text end a district public defender shall be appointed to represent that person. deleted text begin If (a)
conflicting interests exist, (b) the deleted text end deleted text begin 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, including an appeal, 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 2004, section 611.25, subdivision 1, is amended to read:

Subdivision 1.

Representation.

(a) The state public defender shall represent,
without charge:

(1) a defendant or other person appealing from a conviction of a felony or gross
misdemeanor;

(2) a person convicted of a felony or gross misdemeanor who is pursuing a
postconviction proceeding and who has not already had a direct appeal of the conviction,
but if the person pled guilty and received a presumptive sentence or a downward departure
in sentence, and the state public defender reviewed the person's case and determined that
there was no basis for an appeal of the conviction or of the sentence, then the state public
defender may decline to represent the person in a postconviction remedy case; and

(3) a child who is appealing from a delinquency adjudication or from an extended
jurisdiction juvenile conviction.

(b) The state public defender may represent, without charge, all other persons
pursuing a postconviction remedy under section 590.01, who are financially unable
to obtain counsel.

(c) deleted text begin The state public defender shall represent any other person, who is financially
unable to obtain counsel, when directed to do so by the Supreme Court or the Court of
Appeals, except that deleted text end The state public defender shall not represent a person in any action or
proceeding in which a party is seeking a monetary judgment, recovery or award. When
requested by a district public defender or appointed counsel, the state public defender
may assist the district public defender, appointed counsel, or an organization designated
in section 611.216 in the performance of duties, including trial representation in matters
involving legal conflicts of interest or other special circumstances, and assistance with
legal research and brief preparation. deleted text begin 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

Sec. 6.

Minnesota Statutes 2004, section 611.26, subdivision 6, is amended to read:

Subd. 6.

Persons defended.

The district public defender shall represent, without
charge, a defendant charged with a felony, a gross misdemeanor, or misdemeanor when
so directed by the district court. The district public defender shall also represent a minor
ten years of age or older in the juvenile court when so directed by the juvenile court. The
district public defender must not serve as advisory counsel. The juvenile court may not
order the district public defender to represent a minor who is under the age of ten years,
to serve as a guardian ad litem, or to represent a guardian ad litem. new text begin The district public
defender shall represent a custodial parent in the juvenile court under section 260C.163,
subdivision 3, or, if there is no custodial parent, the guardian or the custodian of the child,
when so directed by the juvenile court, except that in cases governed by the Indian Child
Welfare Act, the district public defender may represent both parents regardless of whether
they have custody of the child, or the guardian or custodian of the child.
new text end