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SENATE BILL NO. 263
INTRODUCED BY SHOCKLEY, SALES, STOKER
AN ACT REVISING LAWS GOVERNING THE OFFICE OF STATE PUBLIC DEFENDER; REQUIRING ASSIGNED COUNSEL TO FILE CERTAIN COSTS WITH THE DISTRICT COURT; CLARIFYING THAT AN ASSIGNMENT OF COUNSEL BY THE OFFICE OF STATE PUBLIC DEFENDER IS SUBJECT TO INQUIRY AND DENIAL BY A COURT; AMENDING SECTIONS 46-8-113 AND 47-1-111, MCA; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 46-8-113, MCA, is amended to read:
"46-8-113. Payment by defendant for assigned counsel -- costs to be filed with court. (1) As part of or as a condition under a sentence imposed under the provisions of this title, the court may shall require a convicted defendant to pay the costs of counsel assigned to represent the defendant as follows, except as provided in subsections (2). and (3):
(a) in every misdemeanor case, $150; and
(b) in every felony case, $500.
(2) Costs must be limited to costs incurred by the office of state public defender, provided for in 47-1-201, for providing the defendant with counsel in the criminal proceeding.. If the criminal proceeding includes a jury trial, counsel assigned by the office of state public defender shall file with the court a statement of the hours spent on the case and the costs and expenses incurred and, except as provided in subsection (3), the court shall require the defendant to pay the costs of counsel and other costs and expenses as reflected in the statement.
(3) The court may not sentence a defendant to pay the costs for assigned counsel unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take into account the financial resources of the defendant and the nature of the burden that payment of costs will impose.
(4) A defendant who has been sentenced to pay costs may at any time petition the court that sentenced the defendant for remission of the payment of costs or of any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs or modify the method of payment."
Section 2. Section 47-1-111, MCA, is amended to read:
"47-1-111. Eligibility -- determination of indigence -- rules. (1) (a) Beginning July 1, 2006, when When a court orders the office to assign counsel, the office shall immediately assign counsel prior to a determination under this section.
(b) If the person for whom counsel has been assigned is later determined pursuant to this section to be ineligible for public defender services, the office shall immediately notify the court so that the court's order may be rescinded.
(c) A person for whom counsel is assigned is entitled to the full benefit of public defender services until the court's order requiring the assignment is rescinded.
(d) Any determination pursuant to this section is subject to the review and approval of the court. The propriety of an assignment of counsel by the office is subject to inquiry by the court, and the court may deny an assignment.
(2) (a) An applicant who is eligible for a public defender only because the applicant is indigent shall also provide a detailed financial statement and sign an an affidavit.
(b) The application, financial statement, and affidavit must be on a form prescribed by the commission.
(c) Information disclosed in the application, financial statement, or affidavit is not admissible in a civil or criminal action except when offered for impeachment purposes or in a subsequent prosecution of the applicant for perjury or false swearing.
(d) The office may not withhold the timely provision of public defender services for delay or failure to fill out an application. However, a court may find a person in civil contempt of court for a person's unreasonable delay or failure to comply with the provisions of this subsection (2).
(3) An applicant is indigent if:
(a) the applicant's gross household income, as defined in 15-30-171, is at or less than 133% of the poverty level set according to the most current federal poverty guidelines updated periodically in the federal register by the United States department of health and human services under the authority of 42 U.S.C. 9902(2); or
(b) the disposable income and assets of the applicant and the members of the applicant's household are insufficient to retain competent private counsel without substantial hardship to the applicant or the members of the applicant's household.
(4) A determination of indigence may not be denied based solely on an applicant's ability to post bail or solely because the applicant is employed.
(5) A determination may be modified by the office or the court if additional information becomes available or if the applicant's financial circumstances change.
(6) The commission shall establish procedures and adopt rules to implement this section. Commission procedures and rules:
(a) must ensure that the eligibility determination process is fair and consistent statewide;
(b) must allow a qualified private attorney to represent an applicant if the attorney agrees to accept from the applicant a compensation rate that will not constitute a substantial financial hardship to the applicant or the members of the applicant's household;
(c) may provide for the use of other public or private agencies or contractors to conduct eligibility screening under this section;
(d) must avoid unnecessary duplication of processes; and
(e) must prohibit individual public defenders from performing eligibility screening pursuant to this section."
Section 3. Contingent voidness. If House Bill No. 2 is passed and approved and does not include the restoration of the $250,000 per year general fund reduction in the Office of State Public Defender related to the passage and approval of [this act], then [this act] is void.
Section 4. Effective date. [This act] is effective July 1, 2009.
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