Senate Bill No. 725
(By Senator Bowman)
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[Introduced March 21, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §29-21-16 of the Code of West Virginia,
1931, as amended, relating to
requiring circuit judges to
require repayment of the costs of representation provided by
the public defender system under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That §29-21-16 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-16. Determination of maximum income levels; eligibility
guidelines; use of form affidavit; inquiry by court;
denial of services; repayment; limitation on
remedies against affiant.
(a) The agency shall establish, and periodically review and
update financial guidelines for determining eligibility for legal representation made available under the provisions of this article.
The agency shall adopt a financial affidavit form for use by
persons seeking legal representation made available under the
provisions of this article.
(b) All persons seeking legal representation made available
under the provisions of this article shall complete the agency's
financial affidavit form, which shall be considered as an
application for the provision of publicly funded legal
representation.
(c) Any juvenile shall have has the right to be effectively
represented by counsel at all stages of proceedings brought under
the provisions of article five, chapter forty-nine of this code.
If the child advises the court of his or her inability to pay for
counsel, the court shall require the child's parent or custodian to
execute a financial affidavit. If the financial affidavit
demonstrates that neither of the child's parents, or, if
applicable, the child's custodian, has sufficient assets to pay for
counsel, the court shall appoint counsel for the child. If the
financial affidavit demonstrates that either of the child's
parents, or, if applicable, the child's custodian, does have
sufficient assets to pay for counsel, the court shall order the
parent, or, if applicable, the custodian, to provide, by paying
for, legal representation for the child in the proceedings.
The court may disregard the assets of the child's parents or custodian and appoint counsel for the child, as provided above, if
the court concludes, as a matter of law, that the child and the
parent or custodian have a conflict of interest that would
adversely affect the child's right to effective representation of
counsel, or concludes, as a matter of law, that requiring the
child's parent or custodian to provide legal representation for the
child would otherwise jeopardize the best interests of the child.
(d) In circuits in which no public defender office is in
operation, circuit judges shall make all determinations of
eligibility. In circuits in which a public defender office is in
operation, all determinations of indigency shall be made by a
public defender office employee designated by the executive
director. Such The determinations shall be made after a careful
review of the financial affidavit submitted by the person seeking
representation. The review of the affidavit shall be conducted in
accord with the financial eligibility guidelines established by the
agency pursuant to subsection (a) of this section. In addition to
the financial eligibility guidelines, the person determining
eligibility shall consider other relevant factors, including, but
not limited to, those set forth in subdivisions (1) through (9) of
subsection (e) of this section. If there is substantial reason to
doubt the accuracy of information in the financial affidavit, the
person determining eligibility may make such inquiries as are
necessary to determine whether the affiant has truthfully and completely disclosed the required financial information.
After reviewing all pertinent matters the person determining
eligibility may find the affiant to be eligible to have the total
cost of legal representation provided by the state, or may find
that the total cost of providing representation shall be
apportioned between the state and the eligible person. A person
whose annual income exceeds the maximum annual income level allowed
for eligibility may receive all or part of the necessary legal
representation, or a person whose income falls below the maximum
annual income level for eligibility may be denied all or part of
the necessary legal representation if the person determining
eligibility finds the person's particular circumstances require
that eligibility be allowed or disallowed, as the case may be, on
the basis of one or more of the nine factors set forth in
subsection (e) of this section. If legal representation is made
available to a person whose income exceeds the maximum annual
income level for eligibility, or if legal representation is denied
to a person whose income falls below the maximum annual income
level for eligibility, the person determining eligibility shall
make a written statement of the reasons for the action and shall
specifically relate those reasons to one or more of the factors set
forth in subsection (e) of this section.
(e) The following factors shall be considered in determining
eligibility for legal representation made available under the provisions of this article:
(1) Current income prospects, taking into account seasonal
variations in income;
(2) Liquid assets, assets which may provide collateral to
obtain funds to employ private counsel and other assets which may
be liquidated to provide funds to employ private counsel;
(3) Fixed debts and obligations, including federal, state and
local taxes and medical expenses;
(4) Child care, transportation and other expenses necessary
for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person seeking publicly funded legal
representation has made reasonable and diligent efforts to obtain
private legal representation, and the results of those efforts;
(7) The cost of obtaining private legal representation with
respect to the particular matter in which assistance is sought;
(8) Whether the person seeking publicly funded legal
representation has posted a cash bond for bail or has obtained
release on bond for bail through the services of a professional
bondsman for compensation and the amount and source of the money
provided for such the bond;
(9) The consequences for the individual if legal assistance is
denied.
(f) Legal representation requested by the affiant may not be denied in whole or part unless the affiant can obtain legal
representation without undue financial hardship. Persons
determined to be ineligible by public defender personnel may have
the initial determination reviewed by a local circuit judge who may
amend, modify or rewrite the initial determination. At any stage
of the proceedings a circuit court may determine a prior finding of
eligibility was incorrect or has become incorrect as the result of
the affiant's changed financial circumstances, and may revoke any
prior order providing legal representation. In such that event any
attorney previously appointed shall be is entitled to compensation
under the provisions of law applicable to such the appointment for
services already rendered.
(g) In the circumstances and manner set forth below, circuit
judges may shall order repayment to the state, through the office
of the clerk of the circuit court having jurisdiction over the
proceedings, of the costs of representation provided under this
article:
(1) In every case in which services are provided to an
indigent person and an adverse judgment has been rendered against
such the person, the court may shall require that person, and in
juvenile cases, may shall require the juvenile's parents or
custodian, to pay as costs the compensation of appointed counsel,
the expenses of the defense and such other fees and costs as
authorized by statute.
(2) The court shall may not order a person to pay costs unless
the person is able to pay without undue hardship. In determining
the amount and method of repayment of costs, the court shall take
account of the financial resources of the person, the person's
ability to pay and the nature of the burden that payment of costs
will impose. The fact that the court initially determines, at the
time of a case's conclusion, that it is not proper to order the
repayment of costs does not preclude the court from subsequently
ordering repayment should the person's financial circumstances
change.
(3) When a person is ordered to repay costs, the court may
order payment to be made forthwith or within a specified period of
time or in specified installments. If a person is sentenced to a
term of imprisonment, an order for repayment of costs is not
enforceable during the period of imprisonment unless the court
expressly finds, at the time of sentencing, that the person has
sufficient assets to pay the amounts ordered to be paid or finds
there is a reasonable likelihood the person will acquire the
necessary assets in the foreseeable future.
(4) A person who has been ordered to repay costs, and who is
not in contumacious default in the payment thereof, may at any time
petition the sentencing court for modification of the repayment
order. If it appears to the satisfaction of the court that
continued payment of the amount ordered will impose undue hardship on the person or the person's dependents, the court may modify the
method or amount of payment.
(5) When a person ordered to pay costs is also placed on
probation or imposition or execution of sentence is suspended, the
court may make the repayment of costs a condition of probation or
suspension of sentence.
(h) (1) Circuit clerks shall keep a record of repaid counsel
fees and defense expenses collected pursuant to this section and
shall, quarterly, pay the moneys to the State Auditor who shall
deposit the funds in the General Revenue Fund of the state.
(2) The State Auditor shall annually, after the first day of
January and before the first day of the legislative session, report
to the Chairs of the Senate and House of Delegates Finance
Committees and the Executive Director of Public Defender Services
the amounts of repaid counsel fees and defense expenses received
pursuant to this section during the previous calendar year. The
report shall specify the amounts collected from each circuit.
(i) The making of an affidavit subject to inquiry under this
section does not in any event give rise to criminal remedies
against the affiant nor occasion any civil action against the
affiant except for the recovery of costs as in any other case where
costs may be recovered and the recovery of the value of services,
if any, provided pursuant to this article. A person who has made
an affidavit knowing the contents thereof to be false may be prosecuted for false swearing as provided by law.
NOTE: The purpose of this bill is to
require circuit judges
to require repayment of the costs of legal representation provided
by the public defender system under certain circumstances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.