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S.F. No. 1678 - Public Defender Changes (1st Engrossment)
 
Author: Senator Dan D. Hall
 
Prepared By: Kenneth P. Backhus, Senate Counsel (651/296-4396)
 
Date: March 6, 2012



 

Section 1 amends the community notification law. Strikes the provision giving an offender the right to be represented by counsel when challenging the offender's assignment to risk level II or III.  Also strikes the provision  providing that counsel for indigent offenders be  provided by the legal advocacy project of the state public defender's office.

Section 2 amends the law governing right to counsel in paternity proceedings. Ability to pay would be determined under the guidelines applicable to appointment of a public defender. The right to counsel would be limited to the issue of establishment of parentage.

Section 3 amends the juvenile delinquency law addressing the appointment of counsel to children, parents, guardians, and custodians. Provides that if a court orders or appoints stand-by or advisory counsel, these costs are to be paid by the state court administrator's office using state funds. However, if appointed based on the prosecutor’s request, the costs are to be paid by the governmental unit conducting the prosecution.  Prohibits the court from ordering the board of public defense to pay these costs.

Section 4 amends the juvenile delinquency law requiring courts to inquire into the ability of parents, guardians, or custodians to pay for counsel in delinquency proceedings.  Under current law, the court is authorized, but not required, to look into the ability of parents to pay for these services. This section requires the court to do this, including for guardians and custodians. Authorizes courts to order parents, guardians, or custodians to reimburse the state for the cost of appointed counsel if the person is employed when counsel is appointed, or becomes employed or able to make partial payments for counsel. Authorizes courts to accept partial payments and to order income withholding from the person’s employer.

Section 5 amends the law governing appointment of counsel in child protection cases and specifies whether various parties will be represented by the public defender or court-appointed counsel at county expense. A child who is ten years of age or older would be entitled to appointment of a public defender, consistent with current law under section 611.14. A custodian of the child, in addition to a parent or guardian, may be entitled to appointment of counsel and it is limited to those who would be financially unable to obtain counsel under guidelines applicable to appointment of a public defender. Court-appointed counsel for the parent, guardian, or custodian would be at county expense. Only one counsel would be appointed to jointly represent the interests of those parties, unless extraordinary circumstances exists. Conflict of interest provisions are included. Counsel retained by the county must meet qualification established by the Judicial Council in specified areas.

Section 6 amends the law governing attorney fees in child protection proceedings and the court's inquiry into the ability of parties to pay for counsel. The court would be required to inquire into the ability of parents, guardians, or custodians to pay and provisions are included for reimbursement of the cost of counsel, partial reimbursement, or payment plans.

Section 7 amends the pre-sentence investigation law. Requires pre-sentence investigation reports and lifetime imprisonment reports to be provided free of cost to defense counsel representing the defendant on appeals or post-conviction relief petitions.

Section 8 amends the law addressing certification of misdemeanors as petty misdemeanors. Requires a court to inquire of a prosecutor whether the prosecutor intends to certify a misdemeanor as a petty misdemeanor.  This must be done before the appointment of a public defender. Provides that when an offense is certified as a petty misdemeanor, the defendant is not eligible for the appointment of a public defender.

Section 9 amends the law addressing the right  to representation by a public defender. Provides that an indigent person is entitled to representation on a misdemeanor appeal or post-conviction proceeding.

Section 10 amends the law on requesting the appointment of a public defender. Strikes language authorizing a person entitled by a law other than Minnesota Statutes, section 611.14 to request a court to appoint a public defender. Also strikes language authorizing an application for appointment of a public defender to a Supreme Court judge.

Section 11 amends the law addressing financial inquiries into public defender eligibility. Requires the court to actually make a determination of financial eligibility of a defendant (as opposed to an inquiry into an defendant’s financial circumstances). Requires district courts throughout the state to use the forms furnished by the state public defender related to financial eligibility.  Strikes language allowing only the public defender representing the applicant to see information in the application. Provides that a court may not appoint a public defender if the defendant refuses to execute a financial statement, or refuses to provide information necessary to determine financial eligibility, or the defendant waives the appointment of a public defender. Authorizes the court to reduce the $75 co-payment for public defender representation. Prohibits a court from appointing the district public defender as stand-by counsel.  Provides that if a court appoints stand-by counsel, this cost must be paid by the state court administrator.  However, if appointed based on the prosecutor's request, the cost must be paid by the governmental unit conducting the prosecution. Prohibits the board of public defense from being forced to pay the cost for advisory or stand-by counsel.

Section 12 amends the law addressing the appointment of a public defender to clarify the situations in which the chief appellate public defender is appointed versus the chief district public defender.

Section 13 amends the law addressing employed defendants reimbursing the state for public defender costs. Requires a court to order reimbursement if the defendant is or becomes able to make partial payments for counsel. Strikes references to use of the guidelines being repealed in section 18. Requires courts when determining the percentage of income to be withheld to consider the income and assets of the offender based on the financial statement provided in section 11. Provides that if 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 must evaluate the defendant’s ability to make partial payment or reimbursement.

Section 14 amends the law addressing representation of defendants by the chief appellate public defender. Requires the chief appellate public defender to represent defendants in misdemeanor appeals and post-conviction proceedings.

Section 15 amends the law addressing representation by the district public defender. Prohibits the district public defender from serving as stand-by counsel.

Section 16 amends the law addressing what the board of public defense may fund. Provides that the board  is solely responsible to provide counsel in adult criminal and juvenile cases as specified in Minnesota Statutes, section 611.14. Prohibits courts from appointing counsel at county expense for representation under section 611.14, except in Hennepin County (Hennepin County partially funds public defender services in the county).

Section 17 amends the public defender law to provide that when the prosecutor appeals a pre-trial order to the Court of Appeals in a criminal case, reasonable attorney fees and costs may be allowed to the defendant. These are to be paid by the governmental unit responsible for the prosecution. Requires the chief judge of a judicial district, after consulting with listed parties, to establish a reimbursement rate for attorney fees and costs associated with pre-trial appeals. Caps the compensation at $5,000, except where additional money is certified by the chief judge as being necessary to provide fair compensation for services of an unusual character or duration.

Section 18 repeals a subdivision of law setting forth a public defender reimbursement schedule guideline based on a defendant’s net income and number of dependents.

 

KPB:tg

 
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