Public Defender

 

 

Guidelines to Determine Eligibility for Indigent Defense Services

Right to Counsel

 

Circumstances in which there is a right to counsel provided by the County

Indigent parties may apply for legal counsel to be provided by Minnehaha County when they have a statutory "'right to counsel" and in those circumstances where the defendant may be deprived of their liberty if they are convicted.  Although such legal counsel may be provided to eligible persons by the County, the County reserves the right to affix a lien to the person’s property for the cost of such services provided to the indigent person in accordance with state law.  A party has a right to counsel provided by the County, under the following circumstances if determined to be indigent in accordance with these guidelines:

• Defendant charged with a felony in Circuit Court under SDCL 7-16A-9

 

• Defendant charged with a Class 1 or Class 2 Misdemeanor in Magistrate Court, unless the Court has determined that there is no possibility of imprisonment. The defendant has a right to counsel for those circumstances including a suspended sentence of imprisonment or a deferred imposition of sentence. SDCL 7-16A-9

 

• Parent, legal guardian, or custodian, in the dispositional stage of any juvenile proceedings regarding allegations of unruliness or delinquency. SDCL26-7A-30

 

• Parent, legal guardian, or custodian, in the dispositional stage of any proceedings regarding a charge of abuse and neglect under SDCL Chapter 26-8A

 

• Juvenile in an abortion proceeding.  SDCL 34-23A-7.1

 

• Persons that meet the criteria for board ordered commitment under SDCL 27B-7-41

 

• Persons that meet the criteria for an involuntary mental illness commitment pursuant to SDCL 27A-11A-12

 

• Persons being committed for drug and alcohol abuse pursuant to SDCL 34-20A-85 and SDCL 34-20A-85.1

 

• Petitioner in a habeas corpus matter.  SDCL 21-27-4

 

Circumstances in which there is no right to counsel provided by the County

It is the policy of Minnehaha County to provide counsel to indigent persons only to the extent articulated above, and only to the extent required by state and/or federal law.  Accordingly, Minnehaha County policy does not provide counsel to indigent persons in other cases, including but not limited to:

• Defendant charged with a Class 2 Misdemeanor or a petty offense, in Magistrate Court, where the Court has determined that there is no possibility of imprisonment. 

 

• Any violation of a municipal ordinance.  

 

• Parent, legal guardian, or custodian in an informal adjustment proceeding or in a proceeding (disposition of a child needing continued foster care services).

 

• Any matters pertaining to requests for clemency, pardons, or removal from the sex offender registry.

           

• In any civil matter to include, divorce proceedings, guardianships, or child support modifications for which there is no criminal charge or implication.

 

Determining Indigence

 

Application Process

• A party seeking indigent defense services has the burden of showing that he or qualifies for indigent defense services.  Services will not be provided unless a properly completed application is submitted, and a finding made by the court that the party qualifies for services.

 

• Only those cases for which an attorney can be provided by the County should be listed on the application.

 

When to apply/re-apply?

• A party seeking indigent defense services must apply for services for each "case assignment."  If a party is applying at one time for services on multiple case assignments, a single application may be submitted, but it is important to note all of the court file numbers on the application.

 

• Indigent defense services are only provided for the duration of a "case assignment."  Once that case assignment terminates, services are no longer provided, even though the court file may still be an open file.  If the "case assignment" has terminated, and the party wants indigent defense services in the matter, such as for a later hearing, the party must re-apply for services.

 

• If the defendant had an attorney provided by the County for the underlying criminal or post-conviction case he or she must reapply for counsel on each subsequent request for assistance, whether it is a direct appeal or request for post-conviction relief.

 

Who should apply?

• Generally, the party seeking indigent defense services must complete the application.

 

• A child under the age of 18, is not considered indigent if the child's parent can provide for full payment of legal services.  However, if counsel is sought for a child under the age of 18 the parent(s) should complete the application.  If the parent( s) refuse to complete the application, the court should order the parent(s) to do so.  If the parent does not do so, or is absent from the jurisdiction, the child can fill out the application with the parent's infom1ation to the best of the child's ability. The person who is responsible for reviewing the applications should then write on the application that the parent refused to complete the application or that the parent is absent from the jurisdiction.

 

 

Factors to be considered in determining eligibility when the applicant is not automatically qualified

• When determining whether a party is eligible for indigent defense services, consideration should be given to all of the following factors:
  1. income resources;
  2. non-income resources; and
  3. exceptional factors such as extraordinary financial conditions that would prevent the applicant from hiring an attorney

 

Sources of income resources

• Income resources include the value of any of the following:
  1. Compensation paid to household members for personal services, whether designated as gross salary, wages, commissions, bonus, or otherwise;
  2. Net income from self-employment, including profit or loss from a business, farm, or profession;
  3. Income from seasonal employment;
  4. Periodic payments from pensions or retirement programs, including social security, veterans' benefits, disability payments, and insurance contracts;
  5. Income from annuities or trusts, except for a trust held by a third party for the benefit of the minor children of the household;
  6. Interest, dividends, rents, royalties, or other gain derived from investments or capital assets;
  7. Gain or loss from the sale, trade, or conversion of capital assets;
  8. Unemployment insurance benefits and strike benefits;
  9. Workers' compensation benefits and settlements;
  10. Alimony and child support payments received; and
  11. School grants and stipends which are used for food, clothing, and housing but not for books and tuition.

 

• A federal income tax return is the preferred source for determining earnings. If a federal income tax return is not representative of current earnings, the county may also require pay stubs which include gross and net earnings.    SDCL 28-13-32.7:

 

• Bail funds should not be included in determining defendant's income.

 

Determining who is legally responsible for the applicant:

• A husband and wife have a mutual duty of support.  Therefore, the spouse’s income and assets should be considered when determining whether the applicant qualifies for indigent defense services.  If there is some reason in a specific case why the spouse's income or assets should not be considered, the applicant should indicate this on the application form, and give a detailed explanation.  (An example of an exception to the general rule might be a situation where a husband and wife keep their income, assets, and liabilities totally separate from each other.)

 

• A natural parent or adoptive parent is legally responsible for an applicant who is under the age of 18.

 

• Indigence of a child under the age of 18 in a matter brought should be determined by the financial status of the parents.

 

• A step-parent, guardian or parent whose rights have been terminated is not legally responsible for an applicant who is under the age of 18.

 

• Parents or other relatives who provide housing or other care for an applicant who is 18 years of age or older generally will have no legal responsibility for the applicant.

 

• Eligibility for services for an adult under guardianship is based upon the resources of the applicant, not the resources of the guardian.

 

Determining Household Size

• All individuals who are actually dependent on the applicant for financial support should constitute a single household for purposes of assessing income levels for eligibility for indigent defense services.

 

• The applicant, the applicant's spouse and children who are the legal responsibility of the applicant are included as members of a single household. Adult children, step­ children, grandchildren, parents, other relatives, girlfriends/boyfriends, girlfriends' and boyfriends’ children, and other non-related persons who reside in the household will generally not be considered the legal responsibility of the applicant and should not be counted as part of the household for purposes of determining eligibility.  However, in exceptional circumstances, such persons can be considered as part of the "household" (such as when the applicant's grandchildren live with the applicant, but the parent of the children is absent and not supporting the children).

 

• If the applicant has indicated that the spouse's income and assets should not be considered for some specified reason, the spouse should not be included in the members of the household.

 

Non-Income Resources

• These guidelines for non-income financial resource levels are offered as resource levels at or below which eligibility for defense services should be considered.  If the applicant and those persons who are legally responsible for the applicant have non­ income resources above these levels, the applicant will generally not qualify for indigent defense services.  However, such applicant should not be automatically denied services; consideration should be given to any exceptional financial conditions which would prevent the applicant from hiring an attorney, and the estimated cost of defense services.

 

• Absent exceptional circumstances, an applicant with equity in real and/or personal property in excess of $20,000 will not be considered indigent.

 

• Personal property used to generate income, such as tools necessary for employment, should not be considered if it cannot be sold or encumbered without unnecessary hardship.

 

 

Exceptional Factors (Factors to consider that may or may not justify a finding that an applicant is eligible for indigent defense services, even though the applicant otherwise does not meet the eligibility criteria.)

• An applicant whose income resources or non-income resources exceed these guidelines may still be eligible to receive indigent defense services based on the following factors:
  1. Current income prospects, taking into account seasonal variations in income;
  2. Age or physical infirmity of household members;
  3. Outstanding and extraordinary medical bills or other necessary expenses which the applicant is paying for the applicant or for persons for whom the applicant is legally responsible;
  4. The liquidity or non-liquidity of the applicant's non-income resources;
  5. The estimated cost of obtaining private legal representation and other defense costs with respect to the particular matter for which assistance is sought;
  6. The nature of the criminal charge; and
  7. The anticipated complexity of the defense.
  8. The obligation of the applicant to pay child support will not be considered an exceptional factor.  The actual payment of child support pursuant to a court order, when such payment is a large percentage of the applicant's income, may be considered in the appropriate case, but only when supported by documentation of the order and documents showing such payment.

 

Appointment Process

  Appointment of Counsel  

• Appointment of counsel is the responsibility of the Court or a designee of the Court.

 

• As the board of County Commissioners has established an office of the public defender and an office of the public advocate to provide representation, those offices shall provide representation where individuals qualify for counsel.  The Court will appoint private attorneys on an equitable basis where it has been determined that both offices have a conflict of interest. 

 

• An indigent person has no right to counsel of his or her own choosing, and counsel will not be assigned based on the party's request for certain counsel, or vague claims of dissatisfaction with a particular attorney in prior cases, but rather by the standard procedures for appointment of counsel.

 

Notification of Appointment of Counsel  

• Notification to the applicant of assignment of counsel is the responsibility of the Court or its designee.

 

• Procedures already in place in each office for assigned counsel to obtain copies of files shall continue.

 

Assessment and Collection of Fees for Indigent Defense Services

• Recoupment of indigent defense costs and expenses is authorized by statute in criminal matters, post-judgment proceedings, and juvenile matters.  In juvenile matters, the parents are responsible for the attorney’s fees and expenses for a child under the age of 18. If the child is aged 18 or older, the child is responsible for his/her own attorney fees and expenses.  A lien for all costs associated with legal representation shall be filed against the responsible party.