SF 952

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/06/2012 02:41pm

A bill for an act
relating to public defenders; modifying provisions providing for representation
by a public defender; amending Minnesota Statutes 2010, sections 609.131,
subdivision 1; 611.17; 611.20, subdivision 4; proposing coding for new law in
Minnesota Statutes, chapter 611; repealing Minnesota Statutes 2010, section
611.20, subdivision 6.

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

Section 1.

Minnesota Statutes 2010, 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. new text begin Prior to the appointment of a public
defender to represent a defendant charged with a misdemeanor, the court shall inquire of
the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor. new text end
The defendant's consent to the certification is not required. When an offense is certified
as a petty misdemeanor under this section, the deleted text begin defendant's eligibility for court-appointed
counsel must be evaluated as though the offense were a misdemeanor deleted text end new text begin defendant is not
eligible for the appointment of a public defender new text end .

Sec. 2.

new text begin [611.145] MISDEMEANORS NOT ELIGIBLE FOR INCARCERATION;
CERTIFICATION; NONELIGIBILITY FOR PUBLIC DEFENDER.
new text end

new text begin (a) If a prosecuting attorney believes that it is in the interest of justice that a
defendant accused of committing a misdemeanor not be incarcerated if convicted and
certifies this belief to the court and the court approves of this certification, the defendant,
if subsequently convicted of the misdemeanor offense, may not be incarcerated for it.
new text end

new text begin (b) If a misdemeanor is certified as a petty misdemeanor under section 609.131 or
the certification described in paragraph (a) has occurred, the defendant is not eligible
for the appointment of a public defender.
new text end

Sec. 3.

Minnesota Statutes 2010, 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; or deleted text end new text begin is charged
with a misdemeanor and has an annual household income not greater than 125 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

new text begin (2) the defendant is charged with a gross misdemeanor and has an annual household
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

new text begin (3) the defendant is charged with a felony and has an annual household 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

deleted text begin (2) deleted text end new text begin (4) the court determines that 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 new text begin an new text end
appropriate deleted text begin inquiry into the deleted text end new text begin determination of new text end financial deleted text begin circumstances deleted text end new text begin eligibility under
paragraph (a) new text end 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 deleted text begin that might be relevant to the applicant's eligibility for a public defender deleted text end .
The state public defender shall furnish appropriate forms for the financial statements new text begin ,
which must be used by the district courts throughout the state new text end . 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 deleted text begin appointed by
the court to represent the applicant deleted text end 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 deleted text begin district deleted text end
public defender to a defendant who is financially able to retain private counsel but refuses
to do so new text begin , refuses to execute the financial statement or refuses to provide information
necessary to determine financial eligibility under this section, or waives appointment of
a public defender under section 611.19 new text end .

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 the accused 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 $75 co-payment for representation provided by a public
defender, unless the co-payment is, or has been, new text begin reduced in part or new text end 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 2010, section 611.20, subdivision 4, is amended to read:

Subd. 4.

Employed defendants new text begin ; ability to pay new text end .

new text begin (a) new text end A court shall order a defendant
who is employed when a public defender is appointed, or who becomes employed
while represented by a public defender, new text begin or who is or becomes able to make partial or
full payment for counsel, new text end to reimburse the state for the cost of the public defender. If
reimbursement is required under this subdivision, the court shall 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. deleted text begin The court may consider the guidelines in subdivision 6 in determining a
defendant's reimbursement schedule. deleted text end 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. deleted text begin The percentage to be withheld may be determined
under subdivision 6 deleted text end new text begin In determining the percentage to be withheld, the court shall consider
the 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 .

new text begin (b) If a court determines under section 611.17 that a defendant is financially unable to
pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
the court shall evaluate the defendant's ability to make partial payments or reimbursement.
new text end

Sec. 5. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2010, section 611.20, subdivision 6, new text end new text begin is repealed.
new text end