Bill Text: MN SF952 | 2011-2012 | 87th Legislature | Engrossed
Bill Title: Public defender representation provisions modifications
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2011-05-20 - HF substituted on General Orders HF988 [SF952 Detail]
Download: Minnesota-2011-SF952-Engrossed.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; 611.17; 611.20, subdivision 4; proposing coding for new law in
1.5Minnesota Statutes, chapter 611; repealing Minnesota Statutes 2010, section
1.6611.20, subdivision 6.
1.7BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.8 Section 1. Minnesota Statutes 2010, section 609.131, subdivision 1, is amended to read:
1.9 Subdivision 1. General rule. Except as provided in subdivision 2, an alleged
1.10misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
1.11believes that it is in the interest of justice that the defendant not be imprisoned if convicted
1.12and certifies that belief to the court at or before the time of arraignment or pretrial hearing,
1.13and the court approves of the certification motion. Prior to the appointment of a public
1.14defender to represent a defendant charged with a misdemeanor, the court shall inquire of
1.15the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor.
1.16The defendant's consent to the certification is not required. When an offense is certified
1.17as a petty misdemeanor under this section, thedefendant's eligibility for court-appointed
1.18counsel must be evaluated as though the offense were a misdemeanor defendant is not
1.19eligible for the appointment of a public defender.
1.20 Sec. 2. [611.145] MISDEMEANORS NOT ELIGIBLE FOR INCARCERATION;
1.21CERTIFICATION; NONELIGIBILITY FOR PUBLIC DEFENDER.
1.22(a) If a prosecuting attorney believes that it is in the interest of justice that a
1.23defendant accused of committing a misdemeanor not be incarcerated if convicted and
2.1certifies this belief to the court and the court approves of this certification, the defendant,
2.2if subsequently convicted of the misdemeanor offense, may not be incarcerated for it.
2.3(b) If a misdemeanor is certified as a petty misdemeanor under section 609.131 or
2.4the certification described in paragraph (a) has occurred, the defendant is not eligible
2.5for the appointment of a public defender.
2.6 Sec. 3. Minnesota Statutes 2010, section 611.17, is amended to read:
2.7611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
2.8STANDARDS FOR DISTRICT PUBLIC DEFENSE ELIGIBILITY.
2.9 (a) Each judicial district must screen requests for representation by the district public
2.10defender. A defendant is financially unable to obtain counsel if:
2.11 (1) the defendant, or any dependent of the defendant who resides in the same
2.12household as the defendant, receives means-tested governmental benefits; or is charged
2.13with a misdemeanor and has an annual household income not greater than 125 percent of
2.14the poverty guidelines updated periodically in the Federal Register by the United States
2.15Department of Health and Human Services under the authority of United States Code,
2.16title 42, section 9902(2);
2.17(2) the defendant is charged with a gross misdemeanor and has an annual household
2.18income not greater than 150 percent of the poverty guidelines updated periodically in the
2.19Federal Register by the United States Department of Health and Human Services under
2.20the authority of United States Code, title 42, section 9902(2);
2.21(3) the defendant is charged with a felony and has an annual household income not
2.22greater than 175 percent of the poverty guidelines updated periodically in the Federal
2.23Register by the United States Department of Health and Human Services under the
2.24authority of United States Code, title 42, section 9902(2); or
2.25(2) (4) the court determines that the defendant, through any combination of liquid
2.26assets and current income, would be unable to pay the reasonable costs charged by private
2.27counsel in that judicial district for a defense of the same matter.
2.28 (b) Upon a request for the appointment of counsel, the court shall make an
2.29appropriateinquiry into the determination of financial circumstances eligibility under
2.30paragraph (a) of the applicant, who shall submit a financial statement under oath or
2.31affirmation setting forth the applicant's assets and liabilities, including the value of any
2.32real property owned by the applicant, whether homestead or otherwise, less the amount of
2.33any encumbrances on the real property, the source or sources of income, and any other
2.34information required by the court. The applicant shall be under a continuing duty while
2.35represented by a public defender to disclose any changes in the applicant's financial
3.1circumstancesthat might be relevant to the applicant's eligibility for a public defender.
3.2The state public defender shall furnish appropriate forms for the financial statements,
3.3which must be used by the district courts throughout the state. The forms must contain
3.4conspicuous notice of the applicant's continuing duty to disclose to the court changes in the
3.5applicant's financial circumstances. The forms must also contain conspicuous notice of the
3.6applicant's obligation to make a co-payment for the services of the district public defender,
3.7as specified under paragraph (c). The information contained in the statement shall be
3.8confidential and for the exclusive use of the court and the public defenderappointed by
3.9the court to represent the applicant except for any prosecution under section
609.48 . A
3.10refusal to execute the financial statement or produce financial records constitutes a waiver
3.11of the right to the appointment of a public defender. The court shall not appoint adistrict
3.12public defender to a defendant who is financially able to retain private counsel but refuses
3.13to do so, refuses to execute the financial statement or refuses to provide information
3.14necessary to determine financial eligibility under this section, or waives appointment of
3.15a public defender under section 611.19.
3.16 An inquiry to determine financial eligibility of a defendant for the appointment of
3.17the district public defender shall be made whenever possible prior to the court appearance
3.18and by such persons as the court may direct. This inquiry may be combined with the
3.19prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
3.20subdivision 3. In no case shall the district public defender be required to perform this
3.21inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
3.22conduct a financial inquiry. The inquiry must include the following:
3.23 (1) the liquidity of real estate assets, including the defendant's homestead;
3.24 (2) any assets that can be readily converted to cash or used to secure a debt;
3.25 (3) the determination of whether the transfer of an asset is voidable as a fraudulent
3.26conveyance; and
3.27 (4) the value of all property transfers occurring on or after the date of the alleged
3.28offense. The burden is on the accused to show that the accused is financially unable
3.29to afford counsel. Defendants who fail to provide information necessary to determine
3.30eligibility shall be deemed ineligible. The court must not appoint the district public
3.31defender as advisory counsel.
3.32 (c) Upon disposition of the case, an individual who has received public defender
3.33services shall pay to the court a $75 co-payment for representation provided by a public
3.34defender, unless the co-payment is, or has been, reduced in part or waived by the court.
3.35 The co-payment must be credited to the general fund. If a term of probation is
3.36imposed as a part of an offender's sentence, the co-payment required by this section must
4.1not be made a condition of probation. The co-payment required by this section is a civil
4.2obligation and must not be made a condition of a criminal sentence.
4.3 Sec. 4. Minnesota Statutes 2010, section 611.20, subdivision 4, is amended to read:
4.4 Subd. 4. Employed defendants; ability to pay. (a) A court shall order a defendant
4.5who is employed when a public defender is appointed, or who becomes employed
4.6while represented by a public defender, or who is or becomes able to make partial or
4.7full payment for counsel, to reimburse the state for the cost of the public defender. If
4.8reimbursement is required under this subdivision, the court shall order the reimbursement
4.9when a public defender is first appointed or as soon as possible after the court determines
4.10that reimbursement is required. The court may accept partial reimbursement from the
4.11defendant if the defendant's financial circumstances warrant a reduced reimbursement
4.12schedule.The court may consider the guidelines in subdivision 6 in determining a
4.13defendant's reimbursement schedule. If a defendant does not agree to make payments,
4.14the court may order the defendant's employer to withhold a percentage of the defendant's
4.15income to be turned over to the court.The percentage to be withheld may be determined
4.16under subdivision 6 In determining the percentage to be withheld, the court shall consider
4.17the income and assets of the defendant based on the financial statement provided by the
4.18defendant when applying for the public defender under section 611.17.
4.19(b) If a court determines under section 611.17 that a defendant is financially unable to
4.20pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
4.21the court shall evaluate the defendant's ability to make partial payments or reimbursement.
4.22 Sec. 5. REPEALER.
4.23Minnesota Statutes 2010, section 611.20, subdivision 6, is repealed.
1.3by a public defender;amending Minnesota Statutes 2010, sections 609.131,
1.4subdivision 1; 611.17; 611.20, subdivision 4; proposing coding for new law in
1.5Minnesota Statutes, chapter 611; repealing Minnesota Statutes 2010, section
1.6611.20, subdivision 6.
1.7BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.8 Section 1. Minnesota Statutes 2010, section 609.131, subdivision 1, is amended to read:
1.9 Subdivision 1. General rule. Except as provided in subdivision 2, an alleged
1.10misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
1.11believes that it is in the interest of justice that the defendant not be imprisoned if convicted
1.12and certifies that belief to the court at or before the time of arraignment or pretrial hearing,
1.13and the court approves of the certification motion. Prior to the appointment of a public
1.14defender to represent a defendant charged with a misdemeanor, the court shall inquire of
1.15the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor.
1.16The defendant's consent to the certification is not required. When an offense is certified
1.17as a petty misdemeanor under this section, the
1.18
1.19eligible for the appointment of a public defender.
1.20 Sec. 2. [611.145] MISDEMEANORS NOT ELIGIBLE FOR INCARCERATION;
1.21CERTIFICATION; NONELIGIBILITY FOR PUBLIC DEFENDER.
1.22(a) If a prosecuting attorney believes that it is in the interest of justice that a
1.23defendant accused of committing a misdemeanor not be incarcerated if convicted and
2.1certifies this belief to the court and the court approves of this certification, the defendant,
2.2if subsequently convicted of the misdemeanor offense, may not be incarcerated for it.
2.3(b) If a misdemeanor is certified as a petty misdemeanor under section 609.131 or
2.4the certification described in paragraph (a) has occurred, the defendant is not eligible
2.5for the appointment of a public defender.
2.6 Sec. 3. Minnesota Statutes 2010, section 611.17, is amended to read:
2.7611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
2.8STANDARDS FOR DISTRICT PUBLIC DEFENSE ELIGIBILITY.
2.9 (a) Each judicial district must screen requests for representation by the district public
2.10defender. A defendant is financially unable to obtain counsel if:
2.11 (1) the defendant
2.12
2.13with a misdemeanor and has an annual household income not greater than 125 percent of
2.14the poverty guidelines updated periodically in the Federal Register by the United States
2.15Department of Health and Human Services under the authority of United States Code,
2.16title 42, section 9902(2);
2.17(2) the defendant is charged with a gross misdemeanor and has an annual household
2.18income not greater than 150 percent of the poverty guidelines updated periodically in the
2.19Federal Register by the United States Department of Health and Human Services under
2.20the authority of United States Code, title 42, section 9902(2);
2.21(3) the defendant is charged with a felony and has an annual household income not
2.22greater than 175 percent of the poverty guidelines updated periodically in the Federal
2.23Register by the United States Department of Health and Human Services under the
2.24authority of United States Code, title 42, section 9902(2); or
2.25
2.26assets and current income, would be unable to pay the reasonable costs charged by private
2.27counsel in that judicial district for a defense of the same matter.
2.28 (b) Upon a request for the appointment of counsel, the court shall make an
2.29appropriate
2.30paragraph (a) of the applicant, who shall submit a financial statement under oath or
2.31affirmation setting forth the applicant's assets and liabilities, including the value of any
2.32real property owned by the applicant, whether homestead or otherwise, less the amount of
2.33any encumbrances on the real property, the source or sources of income, and any other
2.34information required by the court. The applicant shall be under a continuing duty while
2.35represented by a public defender to disclose any changes in the applicant's financial
3.1circumstances
3.2The state public defender shall furnish appropriate forms for the financial statements,
3.3which must be used by the district courts throughout the state. The forms must contain
3.4conspicuous notice of the applicant's continuing duty to disclose to the court changes in the
3.5applicant's financial circumstances. The forms must also contain conspicuous notice of the
3.6applicant's obligation to make a co-payment for the services of the district public defender,
3.7as specified under paragraph (c). The information contained in the statement shall be
3.8confidential and for the exclusive use of the court and the public defender
3.9
3.10refusal to execute the financial statement or produce financial records constitutes a waiver
3.11of the right to the appointment of a public defender. The court shall not appoint a
3.12public defender to a defendant who is financially able to retain private counsel but refuses
3.13to do so, refuses to execute the financial statement or refuses to provide information
3.14necessary to determine financial eligibility under this section, or waives appointment of
3.15a public defender under section 611.19.
3.16 An inquiry to determine financial eligibility of a defendant for the appointment of
3.17the district public defender shall be made whenever possible prior to the court appearance
3.18and by such persons as the court may direct. This inquiry may be combined with the
3.19prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
3.20subdivision 3. In no case shall the district public defender be required to perform this
3.21inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
3.22conduct a financial inquiry. The inquiry must include the following:
3.23 (1) the liquidity of real estate assets, including the defendant's homestead;
3.24 (2) any assets that can be readily converted to cash or used to secure a debt;
3.25 (3) the determination of whether the transfer of an asset is voidable as a fraudulent
3.26conveyance; and
3.27 (4) the value of all property transfers occurring on or after the date of the alleged
3.28offense. The burden is on the accused to show that the accused is financially unable
3.29to afford counsel. Defendants who fail to provide information necessary to determine
3.30eligibility shall be deemed ineligible. The court must not appoint the district public
3.31defender as advisory counsel.
3.32 (c) Upon disposition of the case, an individual who has received public defender
3.33services shall pay to the court a $75 co-payment for representation provided by a public
3.34defender, unless the co-payment is, or has been, reduced in part or waived by the court.
3.35 The co-payment must be credited to the general fund. If a term of probation is
3.36imposed as a part of an offender's sentence, the co-payment required by this section must
4.1not be made a condition of probation. The co-payment required by this section is a civil
4.2obligation and must not be made a condition of a criminal sentence.
4.3 Sec. 4. Minnesota Statutes 2010, section 611.20, subdivision 4, is amended to read:
4.4 Subd. 4. Employed defendants; ability to pay. (a) A court shall order a defendant
4.5who is employed when a public defender is appointed, or who becomes employed
4.6while represented by a public defender, or who is or becomes able to make partial or
4.7full payment for counsel, to reimburse the state for the cost of the public defender. If
4.8reimbursement is required under this subdivision, the court shall order the reimbursement
4.9when a public defender is first appointed or as soon as possible after the court determines
4.10that reimbursement is required. The court may accept partial reimbursement from the
4.11defendant if the defendant's financial circumstances warrant a reduced reimbursement
4.12schedule.
4.13
4.14the court may order the defendant's employer to withhold a percentage of the defendant's
4.15income to be turned over to the court.
4.16
4.17the income and assets of the defendant based on the financial statement provided by the
4.18defendant when applying for the public defender under section 611.17.
4.19(b) If a court determines under section 611.17 that a defendant is financially unable to
4.20pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
4.21the court shall evaluate the defendant's ability to make partial payments or reimbursement.
4.22 Sec. 5. REPEALER.
4.23Minnesota Statutes 2010, section 611.20, subdivision 6, is repealed.
