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. SDCL 26-7A-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, the court should order them to do so. If the parent does not do so, or is absent, the child may fill out the application with the parent's information to the best of the child's ability.

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;
  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 for personal services;
  2. Net income from self-employment;
  3. Income from seasonal employment;
  4. Pension or retirement payments;
  5. Income from annuities or trusts;
  6. Interest, dividends, rents, royalties;
  7. Gain or loss from sale or conversion of capital assets;
  8. Unemployment insurance benefits;
  9. Workers' compensation benefits;
  10. Alimony and child support received;
  11. School grants and stipends used for food, clothing, and housing.
• A federal income tax return is the preferred source for determining earnings. SDCL 28-13-32.7.
• Bail funds should not be included in determining income.

Determining who is legally responsible for the applicant

• Spouses have a mutual duty of support; their income and assets should be considered unless an exception is documented.
• Natural or adoptive parents are responsible for applicants under age 18.
• Step-parents, guardians, or parents whose rights have been terminated are not legally responsible.
• Relatives providing housing to adults are not legally responsible.
• For adults under guardianship, eligibility is based on the applicant’s resources.

Determining Household Size

• All individuals actually dependent on the applicant for financial support constitute a household.
• Spouse and legally responsible children are included; others are excluded unless exceptional circumstances apply.
• If spouse’s income is excluded, the spouse is not counted in household size.

Non-Income Resources

• Applicants with equity in real/personal property exceeding $20,000 are generally not indigent unless exceptional circumstances apply.
• Personal property used to generate income should not be considered if selling it would cause hardship.

Exceptional Factors

• An applicant whose resources exceed guidelines may still qualify based on:
  1. Current income prospects;
  2. Age or infirmity of household members;
  3. Extraordinary medical bills or necessary expenses;
  4. Liquidity of assets;
  5. Estimated cost of private representation;
  6. Nature of the criminal charge;
  7. Anticipated complexity of the defense;
  8. Child support payments when documented and substantial.

Appointment Process

Appointment of Counsel

• Appointment of counsel is the responsibility of the Court or its designee.
• The Public Defender or Public Advocate provides representation unless conflicted; private attorneys are appointed equitably when needed.
• An indigent person has no right to counsel of their choosing.

Notification of Appointment of Counsel

• Notification is the responsibility of the Court or its designee.
• Existing procedures for obtaining files remain in place.

Assessment and Collection of Fees for Indigent Defense Services

• Recoupment of indigent defense costs is authorized in criminal, post‑judgment, and juvenile matters.
• Parents are responsible for fees for children under 18; individuals 18 or older are responsible for their own fees.
• A lien may be filed against the responsible party.