Bill Text: MN HF988 | 2011-2012 | 87th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Public defender representation provision modified.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Vetoed) 2011-05-27 - Governor's action Veto Chapter 94 [HF988 Detail]
Download: Minnesota-2011-HF988-Introduced.html
Bill Title: Public defender representation provision modified.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Vetoed) 2011-05-27 - Governor's action Veto Chapter 94 [HF988 Detail]
Download: Minnesota-2011-HF988-Introduced.html
1.2relating to public defenders; modifying provisions providing for representation
1.3by a public defender;amending Minnesota Statutes 2010, sections 609.131,
1.4subdivision 1; 611.16; 611.17; 611.18; 611.20, subdivision 4; repealing
1.5Minnesota Statutes 2010, section 611.20, subdivision 6.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 609.131, subdivision 1, is amended to read:
1.8 Subdivision 1. General rule. Except as provided in subdivision 2, an alleged
1.9misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
1.10believes that it is in the interest of justice that the defendant not be imprisoned if convicted
1.11and certifies that belief to the court at or before the time of arraignment or pretrial hearing,
1.12and the court approves of the certification motion. Prior to the appointment of a public
1.13defender to represent a defendant charged with a misdemeanor, the court shall inquire of
1.14the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor.
1.15The defendant's consent to the certification is not required. When an offense is certified
1.16as a petty misdemeanor under this section, thedefendant's eligibility for court-appointed
1.17counsel must be evaluated as though the offense were a misdemeanor defendant is not
1.18eligible for the appointment of a public defender.
1.19 Sec. 2. Minnesota Statutes 2010, section 611.16, is amended to read:
1.20611.16 REQUEST FOR APPOINTMENT OF PUBLIC DEFENDER.
1.21Any person described in section611.14 or any other person entitled by law to
1.22representation by counsel, may at any time request the court in which the matter is pending,
1.23or the court in which the conviction occurred, to appoint a public defender to represent the
2.1person. In a proceeding defined byclause (2) of section
611.14 , clause (2), application for
2.2the appointment of a public defender may also be made to a judge of the Supreme Court.
2.3 Sec. 3. Minnesota Statutes 2010, section 611.17, is amended to read:
2.4611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
2.5STANDARDS FOR DISTRICT PUBLIC DEFENSE ELIGIBILITY.
2.6 (a) Each judicial district must screen requests for representation by the district public
2.7defender. A defendant is financially unable to obtain counsel if:
2.8 (1) the defendant, or any dependent of the defendant who resides in the same
2.9household as the defendant, receives means-tested governmental benefits; or is charged
2.10with a misdemeanor and has an annual income not greater than 125 percent of the poverty
2.11guidelines updated periodically in the Federal Register by the United States Department of
2.12Health and Human Services under the authority of United States Code, title 42, section
2.139902(2);
2.14(2) the defendant is charged with a gross misdemeanor and has an annual income
2.15not greater than 150 percent of the poverty guidelines updated periodically in the Federal
2.16Register by the United States Department of Health and Human Services under the
2.17authority of United States Code, title 42, section 9902(2);
2.18(3) the defendant is charged with a felony and has an annual income not greater than
2.19175 percent of the poverty guidelines updated periodically in the Federal Register by the
2.20United States Department of Health and Human Services under the authority of United
2.21States Code, title 42, section 9902(2); or
2.22(2) (4) the court makes a written finding that the defendant, through any combination
2.23of liquid assets and current income, would be unable to pay the reasonable costs charged
2.24by private counsel in that judicial district for a defense of the same matter without causing
2.25substantial hardship to the defendant or the defendant's family.
2.26 (b) Upon a request for the appointment of counsel, the court shall make an
2.27appropriateinquiry into the determination of financial circumstances eligibility under
2.28paragraph (a) of the applicant, who shall submit a financial statement under oath or
2.29affirmation setting forth the applicant's assets and liabilities, including the value of any
2.30real property owned by the applicant, whether homestead or otherwise, less the amount of
2.31any encumbrances on the real property, the source or sources of income, and any other
2.32information required by the court. The applicant shall be under a continuing duty while
2.33represented by a public defender to disclose any changes in the applicant's financial
2.34circumstancesthat might be relevant to the applicant's eligibility for a public defender.
2.35The state public defender shall furnish appropriate forms for the financial statements,
3.1which must be used by the district courts throughout the state. The forms must contain
3.2conspicuous notice of the applicant's continuing duty to disclose to the court changes in
3.3the applicant's financial circumstances. The forms must also contain conspicuous notice
3.4of the applicant's obligation to make a co-payment for the services of the district public
3.5defender, as specified under paragraph (c). The information contained in the statement
3.6shall be confidential and for the exclusive use of the court and the public defender
3.7appointed by the court to represent the applicant except for any prosecution under
3.8section609.48 . A refusal to execute the financial statement or produce financial records
3.9constitutes a waiver of the right to the appointment of a public defender. The court shall
3.10not appoint a district public defender to a defendant who is financially able to retain
3.11private counsel but refuses to do so.
3.12 An inquiry to determine financial eligibility of a defendant for the appointment of
3.13the district public defender shall be made whenever possible prior to the court appearance
3.14and by such persons as the court may direct. This inquiry may be combined with the
3.15prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
3.16subdivision 3.In no case shall the district public defender be required to perform this
3.17inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
3.18conduct a financial inquiry. The inquiry must include the following:
3.19 (1) the liquidity of real estate assets, including the defendant's homestead;
3.20 (2) any assets that can be readily converted to cash or used to secure a debt;
3.21 (3) the determination of whether the transfer of an asset is voidable as a fraudulent
3.22conveyance; and
3.23 (4) the value of all property transfers occurring on or after the date of the alleged
3.24offense. The burden is on the accused to show that the accused is financially unable
3.25to afford counsel. Defendants who fail to provide information necessary to determine
3.26eligibility shall be deemed ineligible. The court must not appoint the district public
3.27defender as advisory counsel.
3.28 (c) Upon disposition of the case, an individual who has received public defender
3.29services shall pay to the court a $75 co-payment for representation provided by a public
3.30defender, unless the co-payment is, or has been, reduced in part or waived by the court.
3.31 The co-payment must be credited to the general fund. If a term of probation is
3.32imposed as a part of an offender's sentence, the co-payment required by this section must
3.33not be made a condition of probation. The co-payment required by this section is a civil
3.34obligation and must not be made a condition of a criminal sentence.
3.35(d) The court shall not appoint a public defender to a defendant who is financially
3.36able to retain counsel but refuses to do so, refuses to execute the financial statement or
4.1refuses to provide information necessary to determine financial eligibility under this
4.2section, or waives appointment of a public defender under section 611.19.
4.3 Sec. 4. Minnesota Statutes 2010, section 611.18, is amended to read:
4.4611.18 APPOINTMENT OF PUBLIC DEFENDER.
4.5If it appears to a court that a person requesting the appointment of counsel satisfies
4.6the requirements of this chapter, the court shall order theappropriate public defender to
4.7represent the personat all further stages of the proceeding through appeal, if any. For a
4.8person appealing from a conviction, or a person pursuing a postconviction proceeding
4.9and who has not already had a direct appeal of the conviction, according to the standards
4.10of sections611.14 , clause (2), and
611.25, subdivision 1 , paragraph (a), clause (2), the
4.11state chief appellate public defender shall be appointed. For a person covered by section
4.12611.14
, clause (1), a (3), or (4), the chief district public defender shall be appointed to
4.13represent that person.If (a) conflicting interests exist, (b) the district public defender for
4.14any other reason is unable to act, or (c) the interests of justice require, the state public
4.15defender may be ordered to represent a person. When the state public defender is directed
4.16by a court to represent a defendant or other person, the state public defender may assign
4.17the representation to any district public defender. If at any stage of the proceedings,
4.18including an appeal, the court finds that the defendant is financially unable to pay counsel
4.19whom the defendant had retained, the court may appoint theappropriate public defender
4.20to represent the defendant, as provided in this section.Prior to any court appearance, a
4.21public defender may represent a person accused of violating the law, who appears to be
4.22financially unable to obtain counsel, and shall continue to represent the person unless it
4.23is subsequently determined that the person is financially able to obtain counsel. The
4.24representation may be made available at the discretion of the public defender, upon the
4.25request of the person or someone on the person's behalf. Any law enforcement officer may
4.26notify the public defender of the arrest of any such person.
4.27 Sec. 5. Minnesota Statutes 2010, section 611.20, subdivision 4, is amended to read:
4.28 Subd. 4. Employed defendants; ability to pay. (a) A court shall order a defendant
4.29who is employed when a public defender is appointed, or who becomes employed while
4.30represented by a public defender, or who is or becomes able to make partial payments
4.31for counsel, to reimburse the state for the cost of the public defender. If reimbursement
4.32is required under this subdivision, the court shall order the reimbursement when a
4.33public defender is first appointed or as soon as possible after the court determines that
4.34reimbursement is required. The court may accept partial reimbursement from the
5.1defendant if the defendant's financial circumstances warrant a reduced reimbursement
5.2schedule.The court may consider the guidelines in subdivision 6 in determining a
5.3defendant's reimbursement schedule. If a defendant does not agree to make payments,
5.4the court may order the defendant's employer to withhold a percentage of the defendant's
5.5income to be turned over to the court.The percentage to be withheld may be determined
5.6under subdivision 6 In determining the percentage to be withheld, the court shall consider
5.7the income and assets of the defendant based on the financial statement provided by the
5.8defendant when applying for the public defender under section 611.17.
5.9(b) If a court determines under section 611.17 that a defendant is financially unable to
5.10pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
5.11the court shall evaluate the defendant's ability to make partial payments or reimbursement.
5.12 Sec. 6. REPEALER.
5.13Minnesota Statutes 2010, section 611.20, subdivision 6, is repealed.
1.3by a public defender;amending Minnesota Statutes 2010, sections 609.131,
1.4subdivision 1; 611.16; 611.17; 611.18; 611.20, subdivision 4; repealing
1.5Minnesota Statutes 2010, section 611.20, subdivision 6.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 609.131, subdivision 1, is amended to read:
1.8 Subdivision 1. General rule. Except as provided in subdivision 2, an alleged
1.9misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
1.10believes that it is in the interest of justice that the defendant not be imprisoned if convicted
1.11and certifies that belief to the court at or before the time of arraignment or pretrial hearing,
1.12and the court approves of the certification motion. Prior to the appointment of a public
1.13defender to represent a defendant charged with a misdemeanor, the court shall inquire of
1.14the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor.
1.15The defendant's consent to the certification is not required. When an offense is certified
1.16as a petty misdemeanor under this section, the
1.17
1.18eligible for the appointment of a public defender.
1.19 Sec. 2. Minnesota Statutes 2010, section 611.16, is amended to read:
1.20611.16 REQUEST FOR APPOINTMENT OF PUBLIC DEFENDER.
1.21Any person described in section
1.22
1.23or the court in which the conviction occurred, to appoint a public defender to represent the
2.1person. In a proceeding defined by
2.2the appointment of a public defender may also be made to a judge of the Supreme Court.
2.3 Sec. 3. Minnesota Statutes 2010, section 611.17, is amended to read:
2.4611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
2.5STANDARDS FOR DISTRICT PUBLIC DEFENSE ELIGIBILITY.
2.6 (a) Each judicial district must screen requests for representation by the district public
2.7defender. A defendant is financially unable to obtain counsel if:
2.8 (1) the defendant
2.9
2.10with a misdemeanor and has an annual income not greater than 125 percent of the poverty
2.11guidelines updated periodically in the Federal Register by the United States Department of
2.12Health and Human Services under the authority of United States Code, title 42, section
2.139902(2);
2.14(2) the defendant is charged with a gross misdemeanor and has an annual income
2.15not greater than 150 percent of the poverty guidelines updated periodically in the Federal
2.16Register by the United States Department of Health and Human Services under the
2.17authority of United States Code, title 42, section 9902(2);
2.18(3) the defendant is charged with a felony and has an annual income not greater than
2.19175 percent of the poverty guidelines updated periodically in the Federal Register by the
2.20United States Department of Health and Human Services under the authority of United
2.21States Code, title 42, section 9902(2); or
2.22
2.23of liquid assets and current income, would be unable to pay the reasonable costs charged
2.24by private counsel in that judicial district for a defense of the same matter without causing
2.25substantial hardship to the defendant or the defendant's family.
2.26 (b) Upon a request for the appointment of counsel, the court shall make an
2.27appropriate
2.28paragraph (a) of the applicant, who shall submit a financial statement under oath or
2.29affirmation setting forth the applicant's assets and liabilities, including the value of any
2.30real property owned by the applicant, whether homestead or otherwise, less the amount of
2.31any encumbrances on the real property, the source or sources of income, and any other
2.32information required by the court. The applicant shall be under a continuing duty while
2.33represented by a public defender to disclose any changes in the applicant's financial
2.34circumstances
2.35The state public defender shall furnish appropriate forms for the financial statements,
3.1which must be used by the district courts throughout the state. The forms must contain
3.2conspicuous notice of the applicant's continuing duty to disclose to the court changes in
3.3the applicant's financial circumstances. The forms must also contain conspicuous notice
3.4of the applicant's obligation to make a co-payment for the services of the district public
3.5defender, as specified under paragraph (c). The information contained in the statement
3.6shall be confidential and for the exclusive use of the court and the public defender
3.7
3.8section
3.9constitutes a waiver of the right to the appointment of a public defender. The court shall
3.10not appoint a district public defender to a defendant who is financially able to retain
3.11private counsel but refuses to do so.
3.12 An inquiry to determine financial eligibility of a defendant for the appointment of
3.13the district public defender shall be made whenever possible prior to the court appearance
3.14and by such persons as the court may direct. This inquiry may be combined with the
3.15prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
3.16subdivision 3.
3.17
3.18
3.19 (1) the liquidity of real estate assets, including the defendant's homestead;
3.20 (2) any assets that can be readily converted to cash or used to secure a debt;
3.21 (3) the determination of whether the transfer of an asset is voidable as a fraudulent
3.22conveyance; and
3.23 (4) the value of all property transfers occurring on or after the date of the alleged
3.24offense. The burden is on the accused to show that the accused is financially unable
3.25to afford counsel. Defendants who fail to provide information necessary to determine
3.26eligibility shall be deemed ineligible. The court must not appoint the district public
3.27defender as advisory counsel.
3.28 (c) Upon disposition of the case, an individual who has received public defender
3.29services shall pay to the court a $75 co-payment for representation provided by a public
3.30defender, unless the co-payment is, or has been, reduced in part or waived by the court.
3.31 The co-payment must be credited to the general fund. If a term of probation is
3.32imposed as a part of an offender's sentence, the co-payment required by this section must
3.33not be made a condition of probation. The co-payment required by this section is a civil
3.34obligation and must not be made a condition of a criminal sentence.
3.35(d) The court shall not appoint a public defender to a defendant who is financially
3.36able to retain counsel but refuses to do so, refuses to execute the financial statement or
4.1refuses to provide information necessary to determine financial eligibility under this
4.2section, or waives appointment of a public defender under section 611.19.
4.3 Sec. 4. Minnesota Statutes 2010, section 611.18, is amended to read:
4.4611.18 APPOINTMENT OF PUBLIC DEFENDER.
4.5If it appears to a court that a person requesting the appointment of counsel satisfies
4.6the requirements of this chapter, the court shall order the
4.7represent the person
4.8person appealing from a conviction, or a person pursuing a postconviction proceeding
4.9and who has not already had a direct appeal of the conviction, according to the standards
4.10of sections
4.11
4.13represent that person.
4.14
4.15
4.16
4.17
4.18
4.19whom the defendant had retained, the court may appoint the
4.20to represent the defendant, as provided in this section.
4.21
4.22
4.23
4.24
4.25
4.26
4.27 Sec. 5. Minnesota Statutes 2010, section 611.20, subdivision 4, is amended to read:
4.28 Subd. 4. Employed defendants; ability to pay. (a) A court shall order a defendant
4.29who is employed when a public defender is appointed, or who becomes employed while
4.30represented by a public defender, or who is or becomes able to make partial payments
4.31for counsel, to reimburse the state for the cost of the public defender. If reimbursement
4.32is required under this subdivision, the court shall order the reimbursement when a
4.33public defender is first appointed or as soon as possible after the court determines that
4.34reimbursement is required. The court may accept partial reimbursement from the
5.1defendant if the defendant's financial circumstances warrant a reduced reimbursement
5.2schedule.
5.3
5.4the court may order the defendant's employer to withhold a percentage of the defendant's
5.5income to be turned over to the court.
5.6
5.7the income and assets of the defendant based on the financial statement provided by the
5.8defendant when applying for the public defender under section 611.17.
5.9(b) If a court determines under section 611.17 that a defendant is financially unable to
5.10pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
5.11the court shall evaluate the defendant's ability to make partial payments or reimbursement.
5.12 Sec. 6. REPEALER.
5.13Minnesota Statutes 2010, section 611.20, subdivision 6, is repealed.
