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PAG LIN 1 1 SENATE FILE 2301 1 2 1 3 AN ACT 1 4 RELATING TO REPRESENTATION OF INDIGENT PERSONS AND THE DUTIES 1 5 OF THE STATE PUBLIC DEFENDER. 1 6 1 7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 1 8 1 9 Section 1. Section 13B.4, subsection 1, Code 2001, is 1 10 amended to read as follows: 1 11 1. The state public defender shall coordinate the 1 12 provision of legal representation of all indigents under 1 13 arrest or charged with a crime, seeking postconviction relief, 1 14 against whom a contempt action is pending, in proceedings 1 15 under chapter 229A, on appeal in criminal cases, on appeal in 1 16 proceedings to obtain postconviction relief when ordered to do 1 17 so by the district court in which the judgment or order was 1 18 issued, and on a reopening of a sentence proceeding, and may 1 19 provide for the representation of indigents in proceedings 1 20 instituted pursuant tochapter 908section 908.11. The state 1 21 public defender shall not engage in the private practice of 1 22 law. 1 23 Sec. 2. Section 13B.4, subsection 4, paragraph c, Code 1 24 2001, is amended to read as follows: 1 25 c. The state public defender may review any claim for 1 26 payment of indigent defense costs and may take any of the 1 27 following actions: 1 28 (1) If the charges are appropriate and reasonable, approve 1 29 the claim for payment. 1 30 (2) Deny the claim, if the claim is not timely filed.1 31 under any of the following circumstances: 1 32 (a) If it is not timely. 1 33 (b) If it is not payable as an indigent defense claim 1 34 under chapter 815. 1 35 (c) If it is not payable under the contract between the 2 1 claimant and the state public defender. 2 2 (d) If the appointment of the claimant was obtained 2 3 without complying with section 814.11, subsection 6, or 2 4 section 815.10, subsection 5. 2 5 (3) Request additional information or return the claim to 2 6 the attorney, if the claim is incomplete. 2 7 (4) If any portion of the claim is excessive, notify the 2 8 attorney that the claim is excessive and will be reduced to an 2 9 amount which is not excessive, and reduce and approve the 2 10 balance of the claim. 2 11 (5) If any portion of the claim is not payable within the 2 12 scope of appointment of the attorney, notify the attorney that 2 13 a portion of the claim is not within the scope of appointment 2 14 and is not payable, deny those portions of the claim that are 2 15 not payable, and approve the balance of the claim. 2 16 Sec. 3. Section 13B.4, subsection 4, paragraph d, Code 2 17 2001, is amended by striking the paragraph and inserting in 2 18 lieu thereof the following: 2 19 d. Notwithstanding chapter 17A, the attorney may seek 2 20 review of any action or intended action denying or reducing 2 21 any claim by filing a motion with the court with jurisdiction 2 22 over the original appointment for review. 2 23 (1) The motion must be filed within twenty days of any 2 24 action taken by the state public defender. 2 25 (2) The state public defender shall be provided with at 2 26 least ten days' notice of any hearing on the motion. 2 27 (3) The state public defender or the attorney may 2 28 participate by telephone. If the state public defender 2 29 participates by telephone, the state public defender shall be 2 30 responsible for initiating and paying for all telephone 2 31 charges. 2 32 (4) The filing of a motion shall not delay the payment of 2 33 the amount approved by the state public defender. 2 34 (5) If a claim or portion of the claim is denied, the 2 35 action of the state public defender shall be affirmed unless 3 1 the action conflicts with an administrative rule or the law. 3 2 (6) If the claim is reduced for being excessive, the 3 3 attorney shall have the burden to establish by a preponderance 3 4 of the evidence that the amount of compensation and expenses 3 5 is reasonable and necessary to competently represent the 3 6 client. 3 7 Sec. 4. Section 13B.4, subsection 5, Code 2001, is amended 3 8 by striking the subsection and inserting in lieu thereof the 3 9 following: 3 10 5. In reviewing a claim for compensation submitted by an 3 11 attorney who had been retained or agreed to represent an 3 12 indigent person prior to appointment, the state public 3 13 defender may consider any moneys earned or paid to the 3 14 attorney prior to the appointment in determining whether the 3 15 claim is reasonable and necessary or excessive. The attorney 3 16 shall provide the state public defender with a copy of any 3 17 representation agreement, and information on any moneys earned 3 18 or paid to the attorney prior to the appointment. 3 19 Sec. 5. Section 13B.4, subsection 7, Code 2001, is amended 3 20 by striking the subsection. 3 21 Sec. 6. Section 13B.8, subsection 1, unnumbered paragraph 3 22 2, Code 2001, is amended by striking the unnumbered paragraph. 3 23 Sec. 7. Section 13B.8, subsection 4, Code 2001, is amended 3 24 to read as follows: 3 25 4. The state public defender shall provide separate and 3 26 suitable office space, furniture, equipment, computers, 3 27 computer networks, support staff, and supplies fortheeach 3 28 office of the local public defender out of funds appropriated 3 29 to thedepartmentstate public defender for this purpose. 3 30 Sec. 8. Section 13B.8, Code 2001, is amended by adding the 3 31 following new subsection: 3 32 NEW SUBSECTION. 5. An employee of a local public defender 3 33 office shall not have access to any confidential client 3 34 information in any other local public defender office, and the 3 35 state public defender shall not have access to such 4 1 confidential information. 4 2 Sec. 9. Section 13B.9, subsection 2, Code 2001, is amended 4 3 to read as follows: 4 4 2. Anappointedattorney appointed under this section is 4 5 not liable to a person represented by the attorneypursuant to4 6this chapterfor damages as a result of a conviction in a 4 7 criminal case unless the court determines in a postconviction 4 8appealproceeding that the person's conviction resulted from 4 9 ineffective assistance of counsel, and the ineffective 4 10 assistance of counsel is the proximate cause of the damage. 4 11 In juvenile or civil proceedings, an attorney appointed under 4 12 this section is not liable to a person represented by the 4 13 attorney for damages unless it has been determined that the 4 14 attorney has provided ineffective assistance of counsel and 4 15 the ineffective assistance of counsel claim is the proximate 4 16 cause of the damage. 4 17 Sec. 10. Section 13B.9, subsection 3, Code 2001, is 4 18 amended to read as follows: 4 19 3. The local public defender shall handle every case to 4 20 which the local public defender is appointed if the local 4 21 public defender can reasonably handle the case. The local 4 22 public defender shall be responsible for assigning cases to 4 23 individual attorneys within the local public defender office 4 24 and for making decisions concerning cases in which the local 4 25 public defender has been appointed. 4 26 Sec. 11. Section 13B.9, subsection 4, Code 2001, is 4 27 amended to read as follows: 4 28 4. If a conflict of interest arises or if the local public 4 29 defender is unable to handle a case because of a temporary 4 30 overload of cases, the local public defender shall return the 4 31 case to the court.The court shall first appoint a contract4 32attorney. Appointments by the court shall be on a rotational4 33or equalization basis considering the experience of the4 34attorney and the difficulty of the case.If the case is 4 35 returned and the state public defender has filed a successor 5 1 designation, the court shall appoint the successor designee. 5 2 If there is no successor designee on file, the court shall 5 3 make the appointment pursuant to section 815.10. 5 4 Sec. 12. Section 13B.9, subsection 5, Code 2001, is 5 5 amended by striking the subsection. 5 6 Sec. 13. Section 22.7, Code Supplement 2001, is amended by 5 7 adding the following new subsection: 5 8 NEW SUBSECTION. 43. Information provided to the court and 5 9 state public defender pursuant to section 13B.4, subsection 5; 5 10 section 814.11, subsection 6; or section 815.10, subsection 5. 5 11 Sec. 14. Section 814.11, Code 2001, is amended to read as 5 12 follows: 5 13 814.11 INDIGENT'S RIGHT TO COUNSEL. 5 14 1. An indigentdefendantperson is entitled to appointed 5 15 counsel on the appeal of allindictable offensescases if the 5 16 person is entitled to appointment of counsel under section 5 17 815.9. 5 18 2.TheIf the appeal involves an indictable offense or 5 19 denial of postconviction relief, the appointment shall be made 5 20 to the state appellate defender unless the state appellate 5 21 defender is unable to handle the case due to a conflict of 5 22 interest or because of a temporary overload of cases. 5 23 3. If the appeal is other than an indictable offense or 5 24 denial of postconviction relief or if the state appellate 5 25 defender is unable to handle the case, the court shall appoint 5 26 an attorney who has a contract with the state public defender 5 27 to handle such an appeal. 5 28 4. If the court determines that no contract attorney is 5 29 available to handle the appeal, the court may appoint a 5 30 noncontract attorneywho has agreed to handle the case, but5 31the. The order of appointment shall include a specific 5 32 finding that no contract attorney was available. 5 33 5. The appointment ofnoncontract attorneysan attorney 5 34 shall be on a rotational or equalization basis, considering 5 35 the experience of the attorney and the difficulty of the case. 6 1 6. An attorney who has been retained or has agreed to 6 2 represent a person on appeal and subsequently applies to the 6 3 court for appointment to represent that person on appeal 6 4 because the person is indigent shall notify the state public 6 5 defender of the application. Upon the filing of the 6 6 application, the attorney shall provide the state public 6 7 defender with a copy of any representation agreement, and 6 8 information on any moneys earned or paid to the attorney prior 6 9 to the appointment. 6 10 7. An attorney appointed under this section is not liable 6 11 to a person represented by the attorney for damages as a 6 12 result of a conviction in a criminal case unless the court 6 13 determines in a postconviction proceeding that the person's 6 14 conviction resulted from ineffective assistance of counsel, 6 15 and the ineffective assistance of counsel is the proximate 6 16 cause of the damage. In juvenile or civil proceedings, an 6 17 attorney appointed under this section is not liable to a 6 18 person represented by the attorney for damages unless it has 6 19 been determined that the attorney has provided ineffective 6 20 assistance of counsel and the ineffective assistance of 6 21 counsel claim is the proximate cause of the damage. 6 22 Sec. 15. Section 815.9, subsection 8, Code 2001, is 6 23 amended to read as follows: 6 24 8. If a person is granted an appointed attorney oris6 25receivinghas received legal assistance in accordance with 6 26 this section and the person is employed, the person shall 6 27 execute an assignment of wages. An order for assignment of 6 28 income, in a reasonable amount to be determined by the court, 6 29 shallalsobe entered by the court. The state public defender 6 30 shall prescribe forms for use in wage assignments and court 6 31 orders entered under thissectionsubsection. 6 32 Sec. 16. Section 815.10, Code 2001, is amended to read as 6 33 follows: 6 34 815.10 APPOINTMENT OF COUNSEL BY COURT. 6 35 1. The court, for cause and upon its own motion or upon 7 1 application by an indigent person or a public defender, shall 7 2 appoint the state public defender's designee pursuant to 7 3 section 13B.4,or an attorney pursuant to section 13B.9,to 7 4 represent an indigent person at any stage of the criminal, 7 5 postconviction, contempt, commitment under chapter 229A, or 7 6 juvenile proceedings or on appeal of any criminal, 7 7 postconviction, contempt, commitment under chapter 229A, or 7 8 juvenile action in which the indigent person is entitled to 7 9 legal assistance at public expense. However, in juvenile 7 10 cases, the court may directly appoint an existing nonprofit 7 11 corporation established for and engaged in the provision of 7 12 legal services for juveniles. An appointment shall not be 7 13 made unless the person is determined to be indigent under 7 14 section 815.9. Only one attorney shall be appointed in all 7 15 cases, except that in class "A" felony cases the court may 7 16 appoint two attorneys. 7 17 2.An attorney other than a public defender who is7 18appointed by the court under this section shall apply to the7 19state public defender for compensation and for reimbursement7 20of costs incurred. The amount of compensation due shall be7 21determined in accordance with any indigent defense contract or7 22pursuant to section 815.7.If the state public defender or 7 23 the state public defender's designee is unable to represent an 7 24 indigent person, the court shall appoint an attorney who has a 7 25 contract with the state public defender to represent the 7 26 person. 7 27 3.The state public defender shall adopt rules which7 28specify the information which shall be included with all7 29claims for compensation submitted by court-appointed attorneys7 30under this section. The rules shall require that a court-7 31appointed attorney shall obtain court approval of a claim7 32prior to exceeding the fee limitations established pursuant to7 33section 13B.4. However, a court-appointed attorney may7 34request court approval after exceeding a fee limitation if7 35good cause is shown. The order approving a claim that exceeds8 1the fee limitation shall be included in the information8 2submitted under this section. If the information required8 3under this section and the rules of the state public defender8 4is not submitted, the claim may be denied until the8 5information is provided. If the information required under8 6this section and the rules of the state public defender is8 7submitted with the claim, the state public defender may8 8approve reasonable and proper compensation to the court-8 9appointed attorney in the manner provided in the rules.If 8 10 the court determines that no contract attorney is available to 8 11 represent the person, the court may appoint a noncontract 8 12 attorney. The order of appointment shall include a specific 8 13 finding that no contract attorney was available. 8 14 4. The appointment of an attorney shall be on a rotational 8 15 or equalization basis, considering the experience of the 8 16 attorney and the difficulty of the case. 8 17 5. An attorney who has been retained or has agreed to 8 18 represent a person and subsequently applies to the court for 8 19 appointment to represent that person because the person is 8 20 indigent shall notify the state public defender of the 8 21 application. Upon the filing of the application, the attorney 8 22 shall provide the state public defender with a copy of any 8 23 representation agreement, and information on any moneys earned 8 24 or paid to the attorney prior to the appointment. 8 25 6. An attorney appointed under this section is not liable 8 26 to a person represented by the attorney for damages as a 8 27 result of a conviction in a criminal case unless the court 8 28 determines in a postconviction proceeding that the person's 8 29 conviction resulted from ineffective assistance of counsel, 8 30 and the ineffective assistance of counsel is the proximate 8 31 cause of the damage. In juvenile or civil proceedings, an 8 32 attorney appointed under this section is not liable to a 8 33 person represented by the attorney for damages unless it has 8 34 been determined that the attorney has provided ineffective 8 35 assistance of counsel, and the ineffective assistance of 9 1 counsel claim is the proximate cause of the damage. 9 2 Sec. 17. NEW SECTION. 815.10A CLAIMS FOR COMPENSATION. 9 3 1. An attorney other than a public defender who has been 9 4 appointed by the court under this chapter must apply to the 9 5 state public defender for compensation and reimbursement of 9 6 expenses incurred in the representation of an indigent person. 9 7 2. An attorney shall obtain court approval prior to 9 8 exceeding the fee limitations established by the state public 9 9 defender pursuant to section 13B.4. An attorney may exceed 9 10 the fee limitations, if good cause is shown. An attorney may 9 11 obtain court approval after exceeding the fee limitations, if 9 12 good cause is shown. The order approving an application to 9 13 exceed the fee limitations shall be effective from the date of 9 14 filing the application unless the court order provides an 9 15 alternative effective date. Failure to timely file an 9 16 application to exceed a fee limitation after exceeding the 9 17 fees shall not constitute good cause. The application and the 9 18 court order approving the application to exceed fee 9 19 limitations shall be submitted with any claim for 9 20 compensation. 9 21 3. If the information is not submitted as required under 9 22 this section and under the rules of the state public defender, 9 23 the claim for compensation may be denied until the information 9 24 is provided. Upon submitting the required information, the 9 25 state public defender may approve reasonable and necessary 9 26 compensation, as provided for in the administrative rules and 9 27 the law. 9 28 Sec. 18. Section 815.11, Code 2001, is amended to read as 9 29 follows: 9 30 815.11 APPROPRIATIONS FOR INDIGENT DEFENSE. 9 31 Costs incurred under chapter 229A, 665, or 822, or section 9 32 232.141, subsection 3, paragraph "c", or sections 814.9, 9 33 814.10, 814.11, 815.4, 815.5,815.6,815.7,and815.10,or the9 34rules of criminal procedureor 908.11 on behalf of an indigent 9 35 shall be paid from funds appropriated by the general assembly 10 1 to the office of the state public defender in the department 10 2 of inspections and appeals for those purposes. Costs incurred 10 3 under other provisions of the Code or administrative rules are 10 4 not payable from these funds. 10 5 Sec. 19. NEW SECTION. 815.14 FEE FOR PUBLIC DEFENDER. 10 6 When determining the amount of restitution for each case 10 7 under section 910.3, the expense of the public defender shall 10 8 be calculated at the same hourly rate of compensation 10 9 specified under section 815.7. However, the expense of the 10 10 public defender shall not exceed the fee limitations 10 11 established in section 13B.4. 10 12 Sec. 20. Section 908.2, unnumbered paragraph 1, Code 2001, 10 13 is amended to read as follows: 10 14 An officer making an arrest of an alleged parole violator 10 15 shall take the arrested person before a magistrate without 10 16 unnecessary delay for an initial appearance. At that time the 10 17 alleged parole violator shall be furnished with a written 10 18 notice of the claimed violation, shall be advised of the right10 19to appointed counsel under rule 26 of the rules of criminal10 20procedure,and shall be given notice that a parole revocation 10 21 hearing will take place and that its purpose is to determine 10 22 whether the alleged parole violation occurred and whether the 10 23 alleged violator's parole should be revoked. 10 24 Sec. 21. Section 908.4, Code 2001, is amended to read as 10 25 follows: 10 26 908.4 PAROLE REVOCATION HEARING. 10 27 1. The parole revocation hearing shall be conducted by an 10 28 administrative parole and probation judge who is an attorney. 10 29 The revocation hearing shall determine the following: 10 301.a. Whether the alleged parole violation occurred. 10 312.b. Whether the violator's parole should be revoked. 10 32 2. The administrative parole and probation judge shall 10 33 make a verbatim record of the proceedings. The alleged 10 34 violator shall not have the right to appointed counsel, shall 10 35 be informed of the evidence against the violator, shall be 11 1 given an opportunity to be heard, shall have the right to 11 2 present witnesses and other evidence, and shall have the right 11 3 to cross-examine adverse witnesses, except if the judge finds 11 4 that a witness would be subjected to risk or harm if the 11 5 witness's identity were disclosed. The revocation hearing may 11 6 be conducted electronically. 11 7 11 8 11 9 11 10 MARY E. KRAMER 11 11 President of the Senate 11 12 11 13 11 14 11 15 BRENT SIEGRIST 11 16 Speaker of the House 11 17 11 18 I hereby certify that this bill originated in the Senate and 11 19 is known as Senate File 2301, Seventy-ninth General Assembly. 11 20 11 21 11 22 11 23 MICHAEL E. MARSHALL 11 24 Secretary of the Senate 11 25 Approved , 2002 11 26 11 27 11 28 11 29 THOMAS J. VILSACK 11 30 Governor
Text: SF02300 Text: SF02302 Text: SF02300 - SF02399 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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