Text: HSB00239 Text: HSB00241 Text: HSB00200 - HSB00299 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 13B.4, subsection 1, Code 1999, is 1 2 amended to read as follows: 1 3 1. The state public defender shall coordinate the 1 4 provision of legal representation of all indigents under 1 5 arrest or charged with a crime, seeking postconviction relief, 1 6 against whom a contempt action is pending, in proceedings 1 7 under chapter 229A, on appeal in criminal cases, and on appeal 1 8 in proceedings to obtain postconviction relief when ordered to 1 9 do so by the district court in which the judgment or order was 1 10 issued, and may provide for the representation of indigents in 1 11 proceedings instituted pursuant to chapter 908. The state 1 12 public defender shall not engage in the private practice of 1 13 law. 1 14 Sec. 2. Section 13B.4, subsection 4, Code 1999, is amended 1 15 by striking the subsection and inserting in lieu thereof the 1 16 following: 1 17 4. a. The state public defender shall establish fee 1 18 limitations for particular categories of cases. The fee 1 19 limitations shall be reviewed at least every three years. In 1 20 establishing and reviewing the fee limitations, the state 1 21 public defender shall consider available information regarding 1 22 ordinary and customary charges for like services; the number 1 23 of cases in which legal services to indigents are anticipated; 1 24 the seriousness of the charge; an appropriate allocation of 1 25 resources among the types of cases; experience with existing 1 26 hourly rates, claims, and fee limitations; and any other 1 27 factors determined to be relevant. 1 28 b. The state public defender shall establish an expedited 1 29 procedure for court-appointed counsel to request advance 1 30 approval for compensation for the provision of anticipated 1 31 services if the compensation will be in excess of any fee 1 32 limitation. In determining whether a request should be 1 33 granted, the state public defender shall consider whether the 1 34 anticipated services are necessary and reasonable. The state 1 35 public defender shall not require the disclosure by the 2 1 attorney of any information that is not subject to discovery. 2 2 Notwithstanding chapter 17A, an attorney may seek review of 2 3 the actions of the state public defender in denying a request 2 4 for advanced approval for anticipated compensation in excess 2 5 of the fee limitations. This review shall be requested by 2 6 filing a motion with the court with jurisdiction over the 2 7 original appointment within five days of the action of the 2 8 state public defender. The attorney shall have the burden to 2 9 establish by a preponderance of the evidence that the 2 10 anticipated compensation and services are reasonable and 2 11 necessary to competently represent the client. 2 12 c. The state public defender shall establish a procedure 2 13 for the submission of all claims for payment of indigent 2 14 defense costs, including the submission of interim claims in 2 15 appropriate cases. 2 16 d. The state public defender may review any claim for 2 17 payment of indigent defense costs and may take any of the 2 18 following actions: 2 19 (1) If the charges are appropriate and reasonable, approve 2 20 the claim for payment. 2 21 (2) Deny the claim, if the claim is not timely filed. 2 22 (3) Request additional information or return the claim to 2 23 the attorney, if the claim is incomplete. 2 24 (4) If any portion of the claim is excessive, notify the 2 25 attorney that the claim is excessive and will be reduced to an 2 26 amount which is not excessive, and reduce and approve the 2 27 balance of the claim. 2 28 Notwithstanding chapter 17A, the attorney may seek review 2 29 of any action or intended action taken pursuant to paragraph 2 30 "d" by filing a motion with the court with jurisdiction over 2 31 the original appointment for review. The motion must be filed 2 32 within five days of any action taken by the state public 2 33 defender. The attorney shall have the burden to establish by 2 34 a preponderance of the evidence that the amount of 2 35 compensation and expenses is reasonable and necessary to 3 1 competently represent the client. The filing of a motion 3 2 shall not delay the payment of the amount specified by the 3 3 state public defender pursuant to this subsection. 3 4 Sec. 3. Section 13B.4, Code 1999, is amended by adding the 3 5 following new subsection: 3 6 NEW SUBSECTION. 4A. If any portion of the claim is not 3 7 payable under the attorney's appointment, the state public 3 8 defender shall deny those portions of the claim that are not 3 9 payable and approve the remainder of the claim. 3 10 Notwithstanding chapter 17A, an attorney whose claim for 3 11 compensation is denied may seek review of the action of the 3 12 state public defender by filing a motion with the court with 3 13 jurisdiction over the original appointment. The motion must 3 14 be filed within thirty days of the action of the state public 3 15 defender. The type of review and relief the court may provide 3 16 shall be limited to the review and relief specified in chapter 3 17 17A. The filing of a motion shall not delay the payment of 3 18 the amount approved by the state public defender. 3 19 Sec. 4. Section 814.11, Code 1999, is amended to read as 3 20 follows: 3 21 814.11 INDIGENT'S RIGHT TO COUNSEL. 3 22 An indigent defendant is entitled to appointed counsel on 3 23 the appeal of all indictable offenses.SuchThe appointment 3 24is subject to rules of the supreme courtshall be made to the 3 25 state appellate defender unless the state appellate defender 3 26 is unable to handle the case due to a conflict of interest or 3 27 because of a temporary overload of cases. If the state 3 28 appellate defender is unable to handle the case, the court 3 29 shall appoint an attorney who has a contract with the state 3 30 public defender to handle such an appeal. If the court 3 31 determines that no contract attorney is available to handle 3 32 the appeal, the court may appoint a noncontract attorney who 3 33 has agreed to handle the case, but the order of appointment 3 34 shall include a specific finding that no contract attorney was 3 35 available. The appointment of noncontract attorneys shall be 4 1 on a rotational or equalization basis, considering the 4 2 experience of the attorney and the difficulty of the case. 4 3 Sec. 5. Section 815.7, Code 1999, is amended to read as 4 4 follows: 4 5 815.7 FEES TO ATTORNEYS. 4 6 An attorney who has not entered into a contract authorized 4 7 under section 13B.4 and who is appointed by the court to 4 8 represent any person charged with a crime in this state, 4 9 seeking postconviction relief, against whom a contempt action 4 10 is pending, appealing a criminal conviction, appealing a 4 11 denial of postconviction relief, or subject to a proceeding 4 12 under chapter 229A, or to serve as counsel for any person or 4 13 guardian ad litemto a personfor any child in juvenile court, 4 14in this stateshall be entitled toareasonable compensation 4 15 and expenseswhich shall be the ordinary and customary charges4 16for like services in the community to be decided in each case4 17by a judge of the district court or of the juvenile court, as4 18applicable, including such sum or sums as the court may4 19determine are necessary for investigation in the interests of4 20justice and in the event of appeal the cost of obtaining the4 21transcript of the trial and the printing of the trial record4 22and necessary briefs in behalf of the defendant.However, the4 23reasonable compensation awarded an attorney shall not be4 24calculated based upon an hourly rate that exceeds the rate a4 25contract attorney as provided in section 13B.4 would receive4 26in a similar case.For appointments made on or after July 1, 4 27 1999, the reasonable compensation shall be calculated on the 4 28 basis of sixty dollars per hour for class "A" felonies, fifty- 4 29 five dollars per hour for class "B" felonies, and fifty 4 30 dollars per hour for all other offenses. The expenses shall 4 31 include any sums as are necessary for investigations in the 4 32 interest of justice, and the cost of obtaining the transcript 4 33 of the trial record and briefs if an appeal is filed.Such4 34 The attorney need not follow the case into another county or 4 35 into the appellate court unless so directed by the courtat5 1the request of the defendant, where grounds for further5 2litigation are not capricious or unreasonable, but if such5 3attorney does so, the attorney's fee shall be determined5 4accordingly. If the attorney follows the case into another 5 5 county or into the appellate court, the attorney shall be 5 6 entitled to compensation as provided in this section. Only 5 7 one attorney fee shall be so awarded in any one case except 5 8 that in class "A" felony cases, two may be authorized. 5 9 Sec. 6. Section 815.9, Code 1999, is amended to read as 5 10 follows: 5 11 815.9 INDIGENCY DETERMINED – PENALTY. 5 12 1. For purposes of this chapter,section 68.8, section5 13222.22chapter 13B, chapter 232, chapter 229A, chapter 665, 5 14 chapter 814, chapter 822, and the rules of criminal procedure, 5 15the following applya person is indigent if the person is 5 16 entitled to an attorney appointed by the court as follows: 5 17 a. A person isindigententitled to an attorney appointed 5 18 by the court to represent the person if the person has an 5 19 income level at or below one hundredfiftytwenty-five percent 5 20 of the United States poverty level as defined by the most 5 21 recently revised poverty income guidelines published by the 5 22 United States department of health and human services, unless 5 23 the court determines that the person is able to pay for the 5 24 cost of an attorney to represent the person on the pending 5 25 charges. In making the determination of a person's ability to 5 26 pay for the cost of an attorney, the court shall consider not 5 27 only the person's income, but also the availability of any 5 28 assets subject to execution, including but not limited to 5 29 cash, stocks, bonds, and any other property which may be 5 30 applied to the satisfaction of judgments. 5 31b. A person is not indigent if the person has an income5 32level greater than one hundred fifty percent of the United5 33States poverty level as defined by the most recently revised5 34poverty income guidelines published by the United States5 35department of health and human services.6 1cb. A person with an income level greater than one 6 2 hundredfiftytwenty-five percent, butless thanat or below 6 3 two hundred percent, of the most recently revised poverty 6 4 income guidelines published by the United States department of 6 5 health and human servicesmay be deemed partially indigent by6 6 shall not be entitled to an attorney appointed by the court, 6 7 unless the courtpursuant tomakes a written finding that,6 8given the person's circumstances,not appointing counsel on 6 9 the pending charges would cause the person substantial 6 10 hardship.However, the court shall require a person appointed6 11counsel to contribute to the cost of representation in6 12accordance with rules adopted by the state public defender.6 13 In determining whether substantial hardship would result, the 6 14 court shall consider not only the person's income, but also 6 15 the availability of any assets subject to execution, including 6 16 but not limited to cash, stocks, bonds, and any other property 6 17 which may be applied to the satisfaction of judgments. 6 18dc. A person with an income level greater than two 6 19 hundred percent of the most recently revised poverty income 6 20 guidelines published by the United States department of health 6 21 and human services shall not bedeemed indigent or partially6 22indigententitled to any attorney appointed by the court, 6 23 unless the person is charged with a felony and the court makes 6 24 a written finding that, given the person's circumstances,not 6 25 appointing counsel would cause the person substantial 6 26 hardship.However, the court shall require a person appointed6 27counsel to contribute to the cost of representation in6 28accordance with rules adopted by the state public defender.6 29 In determining whether substantial hardship would result, the 6 30 court shall consider not only the person's income, but also 6 31 the availability of any assets subject to execution, including 6 32 but not limited to cash, stocks, bonds, and any other property 6 33 which may be applied to the satisfaction of judgments. 6 34 2. A determination ofthe indigent status ofwhether a 6 35 person is entitled to an appointed attorney shall be made on 7 1 the basis of an affidavit of financial status submitted at the 7 2 time of the person's initial appearancebefore a courtor at 7 3 such later time as a request for court appointment of counsel 7 4 is made.If a person is granted legal assistance as an7 5indigent or partial indigent, the financial statement shall be7 6filed and permanently retained in the person's court file.7 7 The state public defender shall adopt rules prescribing the 7 8 form and content of the affidavit of financialstatement and7 9the criteria by which a determination of indigency shall be7 10basedstatus. The affidavit of financialstatementstatus 7 11 shall be signed under penalty of perjury and shall contain 7 12 sufficient information to allow the determination to be made 7 13 of whether the personmeets the guidelines set out in7 14subsection 1 and shall be accompanied by the person's most7 15recent pay slip, if employedis entitled to an appointed 7 16 attorney under this section. If the person is granted an 7 17 appointed attorney, the affidavit of financial status shall be 7 18 filed and permanently retained in the person's court file. 7 19 3.A person who knowingly submits a false financial7 20statement for the purpose of obtaining legal assistance by7 21appointed counsel commits a fraudulent practice.If a person 7 22 is granted an appointed attorney, the person shall be required 7 23 to reimburse the state for the total cost of legal assistance 7 24 provided to the person.As used in this subsection, "legal7 25assistance" includes legal counsel"Legal assistance" as used 7 26 in this section shall include not only an appointed attorney, 7 27 but also transcripts, witness feesand, expenses, and any 7 28 other goods or services required by law to be provided to an 7 29 indigent person entitled to an appointed attorney. 7 30 4. If the case is a criminal case, all costs and fees 7 31 incurred for legal assistance shall become due and payable to 7 32 the clerk of the district court by the person receiving the 7 33 legal assistance not later than the date of sentencing, or if 7 34 the person is acquitted or the charges are dismissed, within 7 35 thirty days of the acquittal or dismissal. 8 1 5. If the case is other than a criminal case, all costs 8 2 and fees incurred for legal assistance shall become due and 8 3 payable to the clerk of the district court by the person 8 4 receiving the legal assistance not later than ten days from 8 5 the date of any court ruling or trial held in the case, or if 8 6 the case is dismissed, within ten days of the dismissal. 8 7 6. An appointed attorney shall submit a report pertaining 8 8 to the costs and fees for legal assistance to the court at the 8 9 times specified in subsections 4 and 5. If the appointed 8 10 attorney is a public defender, the report shall specify the 8 11 total hours of service plus other expenses. If the appointed 8 12 attorney is a private attorney, the total amount of legal 8 13 assistance shall be the total amount of the fees claimed by 8 14 the appointed attorney together with other expenses. 8 15 7. If any costs and fees are not paid at the times 8 16 specified under subsections 4 and 5, a judgment shall be 8 17 entered against the person for any unpaid amounts. 8 18 Sec. 7. Section 815.10, Code 1999, is amended to read as 8 19 follows: 8 20 815.10 APPOINTMENT OF COUNSEL BY COURT. 8 21 1. The court, for cause and upon its own motion or upon 8 22 application by an indigent person or a public defender, shall 8 23 appoint the state public defender, the state public defender's 8 24 designee pursuant to section 13B.4, or an attorney pursuant to 8 25 section 13B.9 to represent an indigent person at any stage of 8 26 the criminal, postconviction, contempt, commitment under 8 27 chapter 229A, or juvenile proceedings or on appeal of any 8 28 criminal, postconviction, contempt, or juvenile action in 8 29 which the indigent person is entitled to legal assistance at 8 30 public expense. However, in juvenile cases, the court may 8 31 directly appoint an existing nonprofit corporation established 8 32 for and engaged in the provision of legal services for 8 33 juveniles. An appointment shall not be made unless the person 8 34 is determined to be indigent under section 815.9. Only one 8 35 attorney shall be appointed in all cases, except that in class 9 1 "A" felony cases the court may appoint two attorneys. 9 2 2. An attorney other than a public defenderor a contract9 3attorneywho is appointed by the court under this section 9 4 shall apply to thedistrict courtstate public defender for 9 5 compensation and for reimbursement of costs incurred. The 9 6 amount of compensation due shall be determined in accordance 9 7 with any indigent defense contract or pursuant to section 9 8 815.7. 9 9 3.A contract attorney appointed by the court pursuant to9 10this section and section 13B.4 shall apply to the state public9 11defender for compensation and for reimbursement of costs9 12incurred in accordance with the contract. The amount of9 13compensation due shall be determined in accordance with the9 14contract.The state public defender shall adopt rules which 9 15 specify the information which shall be included with all 9 16 claims for compensation submitted by court-appointed attorneys 9 17 under this section. If the information required under this 9 18 section and the rules of the state public defender is not 9 19 submitted, the claim may be denied until the information is 9 20 provided. If the information required under this section and 9 21 the rules of the state public defender is submitted with the 9 22 claim, the state public defender may approve reasonable and 9 23 proper compensation to the court-appointed attorney in the 9 24 manner provided in the rules. 9 25 Sec. 8. Section 815.11, Code 1999, is amended to read as 9 26 follows: 9 27 815.11 APPROPRIATIONS FOR INDIGENT DEFENSE. 9 28 Costs incurred under chapter 229A, 665, or 822, or section 9 29 232.141, subsection 3, paragraph "c", or sections 814.9, 9 30 814.10, 814.11, 815.4, 815.5, 815.6, 815.7, and 815.10, or the 9 31 rules of criminal procedure on behalf of an indigent shall be 9 32 paid from funds appropriated by the general assembly to the 9 33 department of inspections and appeals for those purposes. 9 34 Sec. 9. EMERGENCY RULES. The office of the state public 9 35 defender of the department of inspections and appeals may 10 1 adopt administrative rules under section 17A.4, subsection 2, 10 2 and section 17A.5, subsection 2, paragraph "b", to implement 10 3 the provisions of this Act. The rules shall become effective 10 4 immediately upon filing, unless a later effective date is 10 5 specified in the rules. Any rules adopted in accordance with 10 6 this section shall not take effect before the rules are 10 7 reviewed by the administrative rules review committee. Any 10 8 rules adopted in accordance with the provisions of this 10 9 section shall also be published as notice of intended action 10 10 as provided in section 17A.4. 10 11 Sec. 10. Sections 815.9A and 815.10A, Code 1999, are 10 12 repealed. 10 13 EXPLANATION 10 14 This bill makes changes pertaining to the payment of costs 10 15 for the defense of indigent persons in criminal, juvenile, 10 16 postconviction, contempt actions, and certain other civil 10 17 actions. The bill establishes the hourly rates for 10 18 representation by noncontract court-appointed attorneys of 10 19 class "A" felons at $60 per hour and of class "B" felons at 10 20 $55 per hour. For all other offenses, the rate is $50 per 10 21 hour. The bill provides that the state public defender shall 10 22 establish the fee limitations for various categories of cases. 10 23 The state public defender is given the direct authority to 10 24 approve, reduce, and modify claims made for payment of 10 25 indigent defense costs. Procedures are added in the bill 10 26 which permit the state public defender to set and exceed 10 27 limitations on indigent defense costs which are submitted for 10 28 payment by court-appointed attorneys. References are 10 29 eliminated which make the appointment of counsel on appeals 10 30 subject to supreme court rules. Instead, the bill substitutes 10 31 a procedure which provides for the appointment of the state 10 32 appellate defender, unless the appellate defender has a 10 33 conflict of interest or a temporary overload of cases. In the 10 34 latter two situations, the bill provides for the appointment 10 35 of an attorney who has entered into a contract with the state 11 1 public defender to handle appeals. If no contract attorney is 11 2 available, the court may appoint a noncontract attorney on a 11 3 rotational or equalization basis, considering the experience 11 4 of the attorney and the difficulty of the case. The 11 5 appointment must, however, include specific findings that no 11 6 contract attorney was available. Noncontract attorneys will 11 7 be paid directly through the state public defender's office 11 8 and are to submit such reports and information relating to 11 9 their fees and expenses as are required by the state public 11 10 defender. 11 11 The bill provides that a person is indigent and entitled to 11 12 court-appointed counsel if the person has an income level at 11 13 or below 125 percent of poverty level. This is below the 11 14 current 150 percent of poverty level ceiling. In determining 11 15 eligibility, the court is to consider not only the person's 11 16 income, but assets subject to execution and any other property 11 17 which may be applied to the satisfaction of judgments. Those 11 18 persons whose income falls above the new threshold are not 11 19 entitled to court-appointed counsel unless the court makes a 11 20 written determination that not appointing counsel on the 11 21 pending charges would cause the person substantial hardship. 11 22 Like the original determination of eligibility, the 11 23 determination of substantial hardship is to be based not only 11 24 on the person's income, but also on assets subject to 11 25 execution and any other property which may be applied to the 11 26 satisfaction of judgments. 11 27 LSB 2191XL 78 11 28 jm/jw/5.2
Text: HSB00239 Text: HSB00241 Text: HSB00200 - HSB00299 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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