97104-1:n:02/11/2008:JMH/mfp LRS2008-764




SB486
By Senator Bedford
RFD Finance and Taxation General Fund
Rd 1 25-MAR-08


SYNOPSIS:Existing law provides for indigent defense systems used in circuit, district, and municipal courts with the presiding circuit judge administering the systems within the circuits pursuant to rule of the Supreme Court.
This bill would create the Alabama Indigent Defense Commission to provide for the defense of indigent persons in criminal and juvenile proceedings and to further provide for legal representation and related services in all other cases subject to this act pursuant to rules and procedures established by the commission and in accordance with the budget management act.
This bill would provide for members, terms of office, duties, and responsibilities of the commission.
This bill would establish the Office of Indigent Defense Services.
This bill would provide for a director, staff, duties, and responsibilities of the Office of Indigent Defense Services.
This bill would provide for an indigent defense advisory board in each judicial circuit and would provide for the composition, meetings, compensation, powers, and duties of the board. Existing law provides for a determination of indigency and provides for defense counsel.
This bill would provide for the Office of Indigent Defense Services to assign counsel in capital cases subject to the approval of the Office of Indigent Defense Services.
Existing law provides for compensation of appointed counsel as provided by law or rule promulgated by the Alabama Supreme Court.
This bill would provide for compensation as provided by law or rule or regulation adopted by the Alabama Indigent Defense Commission.
Existing law provides that the bill for compensation of an appointed counsel representing an indigent person at trial level to be approved by a circuit judge and then submitted by the clerk of the court to the Alabama Administrative Office of Courts and then to the State Comptroller for audit, and forwarded to the State Treasurer for payment.
This bill would require the bill for compensation of appointed counsel to be submitted by the clerk of the court to the Office of Indigent Defense Services for audit and approval, and forwarded to the State Comptroller for payment.
Exiting law provides $50 per hour for appointed counsel representing an indigent person on appeal and effective October 1, 2000, based on the number of hours spent by the attorney, $60 per hour in the prosecution of the appeal and subsequent petition for writ of certiorari with the bill for compensation of appointed counsel to be submitted by the clerk of the appellate court to the State Comptroller for audit and, if approved, forwarded to the State Treasurer for payment.
This bill would provide for the determination of fees to be paid to attorneys representing indigent defendants on appeal and post-conviction proceedings to be made by the Indigent Defense Commission with the bill for compensation of appointed counsel to be submitted by the clerk of the appellate court to the Office of Indigent Defense Services for audit and approval and forwarded to the State Comptroller for payment.
Existing law, in post conviction proceedings, appointed counsel receives $50 per hour for time expended in court and $30 per hour expended in preparation, with a maximum amount of $1,000. This bill would repeal this provision. Existing law provides for a circuit indigent defense commission in any county or circuit, with the approval of the presiding circuit judge, to select a contract counsel as a method of providing indigent defense and provide for each contract counsel to receive compensation as set by the commission.
This bill would allow the Alabama Indigent Defense Commission to establish a contract counsel program for all or part of the subject circuit, after consultation with the circuit indigent defense advisory board and if no advisory board, the affected circuit's bar association and the presiding circuit court judge, and may provide for the contract counsel to be employed under terms, conditions, and compensation set by the Office of Indigent Defense Services.
Under existing law, the employment contract, compensation, and attorney-client communications of the contract counsel are not to be construed to supersede the provisions of the Alabama Rules of Criminal Procedure.
This bill would repeal this provision. Also, under existing law, the indigent defense commission in a judicial circuit with the approval of the presiding circuit judge, may select a public defender system with salary set by the commission and approved by the Director of the Administrative Office of Courts.
This bill would provide that the Alabama Indigent Defense Commission may establish a public defender office for all or part of the subject circuit, after consultation with the circuit indigent defense advisory board and if no advisory board, the affected circuit's bar association and the presiding circuit court judge, and may provide for compensation. The commission may appoint a public defender approved by the commission for a term of six years.
This bill would provide for the commission to approve for the public defender to represent an indigent defendant in a state appellate court. This bill would provide for the keeping of reports on matters related to the operation of the office of the public defender.
Existing law provides that the indigent defense commission subject to approval by the Administrative Director of Courts may approve expenditures.
This bill would provides for approval of expenditures for attorneys by the Director of the Office of Indigent Defense Services in compliance with procedures adopted by the commission.
This bill would provide for the employees of public defender offices to receive the same benefits as state employees.
This bill would provide for the operating expenses of public defender offices to be paid by the state from funds appropriated annually from the Fair Trial Tax Fund and the General Fund.
This bill would repeal the determination as to indigent defense systems to be used in circuit and district courts, the presiding circuit judges to administer the circuit indigent defense system, withdrawals from the Fair Trial Tax Fund to pay expenses of the State Comptroller for administering the defense of indigents, and withdrawals from the State General Fund for any amount above that appropriated by the Legislature for the operation of the Indigent Defense Commission.

A BILL
TO BE ENTITLED
AN ACT

To create the Alabama Indigent Defense Commission as an independent agency of the judicial branch of state government; to provide the duties and powers of the commission; to provide for the appointment and terms of its members; to provide for the creation of an Office of Indigent Defense Services to operate at the direction of the Alabama Indigent Defense Commission; to amend Sections 12-19-252, 15-12-1, 15-12-4, 15-12-5, 15-12-6, 15-12-21, 15-12-22, 15-12-23, 15-12-26, 15-12-27, 15-12-29, 15-12-40, 15-12-41, 15-12-42, 15-12-43, 15-12-44, 15-12-45, and 15-12-46 of the Code of Alabama 1975; relating to the defense of indigents; to provide for the Office of Indigent Defense Services, the director, staff, duties and responsibilities; to provide for an Indigent Defense Advisory Board in each judicial circuit; to provide for the assignment of counsel in capital cases; to provide further for compensation of appointed counsels; to provide further for contract counsel; to provide for the employment contract, compensation, and attorney-client communications of the contract to supersede the Alabama Rules of Criminal Procedure; to provide further for a public defender system; to provide further for expenditures, employees, and operating expenses of the public defender offices; to make an appropriation; and to repeal Sections 15-12-2, 15-12-3, and 15-12-24.1 of the Code of Alabama 1975.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. The Legislature finds and declares the following:

(1) The purpose of this act is to provide for the defense of those persons who have been found by a court to be unable to pay for their defense in a criminal or juvenile proceeding. Whenever a court determines that a person is unable to pay for his or her defense, it shall be the responsibility of the court, subject to the establishment of the Indigent Defense Commission as set forth in this act, to provide that person with counsel and the other necessary expenses of representation.

(2) Additionally, the further purposes of this act are as follows:

a. Establish financial accountability for the Indigent Defense System.

b. Improve the quality of representation and ensure the independence of counsel.

c. Deliver indigent defense services in the most efficient and cost-effective manner without sacrificing quality representation.

d. Establish uniform policies and procedures for the delivery of indigent defense services, and enhance oversight of the determination of indigency, the oversight of the indigent defense systems in the judicial circuits, and the delivery of counsel and related services.

e. Enhance the integrity and efficiency of the judicial process related to indigent criminal cases.

f. Generate reliable statistical information in order to evaluate the services provided and funds expended hereunder.

Section 2. There is created as an independent state agency, the Alabama Indigent Defense Commission.

Section 3. (a) The commission shall consist of the following members:

(1) Two members to be appointed by the Chief Justice of the Alabama Supreme Court who shall be members of the judiciary.

(2) Two members to be appointed by the Governor.

(3) One member to be appointed by the Lieutenant Governor.

(4) One member to be appointed by the Speaker of the House of Representatives.

(5) One member to be appointed by the President Pro Tempore of the Senate.

(6) Two members who shall be attorneys to be appointed by the Alabama State Bar Association, one with significant experience in criminal defense and one with significant experience in juvenile justice.

(7) One member shall be an attorney with significant experience in criminal defense to be appointed by the Alabama Criminal Defense Lawyers Association.

(8) One member who shall be an attorney with significant experience in criminal defense to be appointed by the President of the Alabama Lawyers Association.

(9) Two members shall be appointed by the commission, one of whom shall not be an attorney and one of whom shall have a significant financial background.

(b) The terms of office of the members appointed pursuant to subsection (a) shall be as follows:

(1) The two initial appointments by the commission shall be for four years.

(2) The two initial appointments by the Governor and the initial appointment by the Lieutenant Governor, Speaker of the House, and the President Pro Tempore of the Senate shall be for three years.

(3) The two initial appointments by the Chief Justice and the initial appointments by the Alabama State Bar Association, the Alabama Criminal Defense Lawyers Association, and the Alabama Lawyers Association shall be for two years.

(4) Initial terms to the commission shall be made within 90 days following the effective date of this act. At the expiration of these initial terms, successor terms shall be for four years and shall be made by the appointing authorities making the initial appointments as designated in subsection (a). New terms of office shall commence on the first day of the fiscal year for which the appointments are made. No person shall serve for more than two consecutive four-year terms plus any initial term of less than four years.

(c) Persons appointed to the commission shall have substantial experience in the defense of criminal cases or other cases subject to this act or shall have demonstrated a strong commitment to quality representation in indigent defense matters. No active prosecutors, law enforcement officials, or active employees of these persons may be appointed to or serve on the commission. No active judicial officials, or active employees of these persons may be appointed to or serve on the commission, except the judicial members as provided in subdivision (1) of subsection (a). No active employees of the Office of Indigent Defense Services may be appointed to or serve on the commission.

(d) All members of the commission shall be entitled to vote on any matters coming before the commission unless otherwise prohibited by statute, court rules, or rules adopted by the commission concerning voting on matters in which a member has, or appears to have, a financial or other personal interest. Voting by proxy may not be allowed.

(e) Each member of the commission shall serve until his or her successor in office has been appointed. Vacancies shall be filled by the appointing authority for the unexpired term. Appointments shall be made within 90 days from the date notice of the vacancy is mailed by first class mail by the Director of the Office of Indigent Defense Services to the appointing authority. If the appointing authority fails to fill the vacancy within this 90-day period, the appointment shall be made by a majority vote of the commission. Removal of commission members shall be in accordance with policies and procedures adopted by the commission.

(f) A quorum for purposes of conducting commission business shall be a majority of the members of the commission.

(g) The commission shall elect a chair from the members of the commission for a term of not more than four years or the remainder of the term of the member elected chair. A member may serve more than one term as chair. An appointee of the Chief Justice shall convene the first meeting and shall serve as acting chair until the appointments specified in this subsection have be made. No later than 30 days after its first meeting, the commission shall make the appointments specified in this subsection have been made. At the next meeting of the commission following the appointments, the members of the commission shall elect a chair.

(h) Commission members shall serve without compensation.

(i) Members of the commission shall be entitled to reimbursement for expenses while on official business of the commission or attending its meetings. Expenses shall be paid out of funds available to the commission for travel and shall be reimbursed in accordance with Sections 36-7-20 to 36-7-22, inclusive, of Code of Alabama 1975.

(j) The commission shall meet quarterly and at other times upon the call of the chair. All meetings shall be in accordance with the Alabama Open Meetings Act.

Section 4. (a) The commission shall develop and improve programs to provide legal representation to indigents.

(b) The commission shall appoint the Director of the Office of Indigent Defense Services, who shall be chosen on the basis of training, experience, and other qualifications as deemed by the commission, and shall serve at the pleasure of the commission.

(c) The commission shall develop standards governing the provision of defense services under this act. The standards may include, but not be limited to, any of the following:

(1) Standards for providing fiscal responsibility and accountability in indigent defense representation.

(2) Standards for maintaining and operating indigent defense systems whether appointed counsel, contract counsel, public defender or appellate defender offices or both.

(3) Standards prescribing minimum experience, training, and other qualifications for appointed counsel, contract counsel, and public defenders.

(4) Caseload management standards for appointed counsel, contract counsel, and public defenders.

(5) Standards for the performance of appointed counsel, contract counsel, and public defenders.

(6) Standards for the independent, competent, and efficient representation of clients whose cases present conflicts of interest.

(7) Standards for providing and compensating experts and others who provide services related to legal representation of indigents.

(d) The commission shall determine the methods for delivering indigent defense services in the state courts in each county or circuit, or parts of the county or circuit, and in the appellate courts of the state. The methods established for delivering defense services may include, but are not limited to, appointed counsel systems, contract counsel systems, and part-time or full-time public defender systems.

(e) The commission shall determine the method of providing indigent defense services in the appellate courts, which may include state appellate defender offices for capital and non-capital cases and post-conviction representation in capital and non-capital cases. If a method is selected by the commission whereby someone other than the trial counsel shall serve as the appellate counsel of the appellant, the commission shall, to the extent possible, see that the system provides for the continuous representation of the appellant from the time the trial counsel is permitted to withdraw. In determining the method by which indigent defense services shall be provided in the appellate courts, the commission shall consult with the Supreme Court, the Court of Criminal Appeals, and the Court of Civil Appeals.

(f) In determining the method for providing indigent defense services in a particular jurisdiction, the commission shall consult with the local indigent defense advisory board, or, where no advisory board has been established, the circuit bar association and presiding circuit court judge of the circuit or circuits under consideration and shall adopt procedures ensuring that the affected local indigent defense advisory board or boards, or, where no advisory board or boards have been established, the circuit bar and presiding circuit court judge, have the opportunity to be heard before the commission determines the method or methods by which indigent defense services shall be provided in their jurisdictions. The commission shall solicit written recommendations from the affected local indigent defense advisory board, or where no advisory board has been established, the circuit bar and presiding circuit court judge.

(g) The commission may make recommendations to the Legislature with respect to the rates of compensation for appointed counsel and other improvements in the provision of indigent defense services.

(h) The commission shall annually approve and recommend to the Legislature a unified budget for indigent defense systems including the Office of Indigent Defense Services.

(i) The commission shall adopt other rules and procedures it deems necessary for the conduct of business by the commission and the Office of Indigent Defense Services.

Section 5. (a) The Office of Indigent Defense Services is established to carry out the administrative duties of the commission. The commission shall appoint a director who shall serve at the pleasure of the commission, and establish all other employee positions as are needed for the efficient conduct of the business of the office. The director shall be responsible for the hiring and firing of all employees of the office. The director and other employees shall be compensated in an amount to be determined by the commission. Salaries shall be paid at the same time and in the same manner that salaries of other state employees are paid. The director and other employees of the commission shall be entitled to annual and sick leave, insurance, retirement, and other state employee benefits, including cost-of-living raises and bonuses authorized by the Legislature for state employees.

(b) The office may enter into contracts, own property, and accept funds, grants, and gifts from any public or private source to pay expenses incident to implementing its purposes.

(c) The director shall attend all commission meetings except those relating to removal of the director or allegations of misconduct by the director. The director shall not vote on any matter decided by the commission.

(d) (1) The office shall be responsible for implementing in each judicial circuit the system determined and established by the commission for providing legal representation and related services for indigent defendants.

(2) The office shall develop policies and procedures for determining whether a person is an indigent defendant, and those policies and procedures shall be applied uniformly throughout the state. This act may not be construed to prevent the office from establishing guidelines for determining partial indigency and establishing policies and procedures for providing indigent defense services to persons determined to be partially indigent, including policies and procedures governing recoupment for the Fair Trial Tax Fund. In accordance with the policies and procedures established by the office, the court shall determine in each case whether a person is an indigent defendant. If the court determines that a person is an indigent defendant, counsel shall be appointed as required by Section 15-12-5, Code of Alabama 1975.

(3) The office shall allocate and disburse funds appropriated for legal representation and related services in cases subject to this act pursuant to rules and procedures established by the commission and in accordance with the Budget Management Act. The office shall also have the authority to approve monetary allocations requested by and for appointed counsel, contract counsel, and public defender offices.

(e) In addition to any other duties and responsibilities that may be assigned to the director by the commission, he or she shall have the following duties and authority with respect to all indigent defense services, subject to the direction of the commission:

(1) Prepare and submit budget recommendations for state appropriations necessary for the maintenance and operation of the state indigent defense services including the operation of the commission, the office, local indigent defenses systems, appellate defender services and, if established, the appellate defender office, and request annually a sum certain necessary to be appropriated from the Fair Trial Tax Fund and the State General Fund for the Fair Trial Tax Fund pursuant to Section 12-19-252, Code of Alabama 1975, and in accordance with this act.

(2) Prepare reports and collect and compile statistical data and all other information on the operations, costs, and needs of the office, and any other information the commission may require.

(3) Assist the commission in developing rules and standards for the delivery of services under this act.

(4) Administer and coordinate the operations of the office and supervise compliance with standards adopted by the commission.

(5) Subject to policies and procedures established by the commission, hire professional, technical, and support personnel as deemed necessary for the efficient operation of the Office of Indigent Defense Services.

(6) Keep and maintain proper financial records.

(7) Apply for and accept on behalf of the Office of Indigent Defense Services any funds that may become available from government grants, private gifts, donations, bequests, or otherwise from any source.

(8) Coordinate the services of the Office of Indigent Defense Services with any and all federal, county, or private programs established to provide assistance to indigent defendants, and consult with professional bodies concerning the improvement of the administration of indigent defense services.

(9) Offer or approve training programs for attorneys and others involved in the legal representation of persons subject to this act.

(10) Approve and administer the processing of all claims from private counsel relative to appointments to handle indigent defense cases, effective the first day of the fiscal year next following the effective date of this act.

(11) Administer the processing of all contracts for contract counsel relating to handling indigent criminal cases, effective the first day of the fiscal year next following the effective date of this act.

(12) Administer the processing of all monetary allocations requested by and for a public defender office relating to the annual operation of the requesting public defender's office, effective the first day of the fiscal year next following the effective date of this act.

(13) Perform other duties as the commission may assign.

Section 6. Sections 12-19-252, 15-12-1, 15-12-4, 15-12-5, 15-12-6, 15-12-21, 15-12-22, 15-12-23, 15-12-26, 15-12-27, 15-12-29, 15-12-40, 15-12-41, 15-12-42, 15-12-43, 15-12-44, 15-12-45, and 15-12-46 of the Code of Alabama 1975, are amended to read as follows:

12-19-252.

"There is hereby appropriated from the Fair Trial Tax Fund, annually, such amount as may be necessary to pay the fees of counsel, court reporters, clerks, registers and such other necessary expenses of indigent defense as are provided by law.

"There is also hereby appropriated from the Fair Trial Tax Fund, annually, such amount not exceeding $50,000.00 as may be necessary to pay the quarterly withdrawals of the State Comptroller for the expenses of administering such indigent defense.

"In addition thereto, there is also appropriated annually out of the General Fund in the State Treasury a sum equal to the amount by which the cost of such necessary expenses of indigent defense, as provided by law, exceeds the amount available for such purpose in the Fair Trial Tax Fund. certain, to be appropriated by the Legislature, for the operation of the Indigent Defense Commission and the operation of the indigent defense systems throughout the State of Alabama.

"If the county maintains a public defender, there shall be paid a reasonable share of the cost of maintaining such the office, the amount appropriated for such the purpose to be prorated to the several counties maintaining public defender's offices on the basis of the case load of the respective public defender offices.

15-12-1.

"When used in this chapter, the following terms shall have the following meanings:

"(2)(1) APPOINTED COUNSEL. Any attorney licensed to practice law in the State of Alabama who is appointed by the court to represent an indigent defendant.

"(2) COMMISSION. The Alabama Indigent Defense Commission.

"(3) CONTRACT COUNSEL. Any attorney licensed to practice law in the State of Alabama, or a firm, association, corporation, or partnership of lawyers so licensed, executing a contract for the provision of indigent defense services.

"(1)(4) INDIGENT DEFENDANT. Any person involved in a criminal or juvenile proceeding in the trial or appellate courts of the state for which proceeding representation of the indigent person by counsel is constitutionally required or is authorized or required by statute or court rule, who under oath or affirmation states that he or she is unable to pay for his or her defense, and who is found by the court to be financially unable to pay for his or her defense. A child who is found by the court to be in need of a guardian ad litem is defined as an indigent person for the purposes of this article.

"(5) INDIGENT DEFENSE SERVICES. Those services that are necessary for the legal defense of an indigent defendant.

"(5) (6) INDIGENT DEFENSE SYSTEM. Any method or mixture of methods for providing legal representation to an indigent defendant, including use of appointed counsel, or use of contract counsel, use of public defenders ,or any alternative method meeting constitutional requirements.

"(7) OFFICE. The Office of Indigent Defense Services.

"(4) (8) PUBLIC DEFENDER. Any attorney licensed to practice law in the State of Alabama, other than contract counsel or appointed counsel, who receives a salary for representing an indigent defendant.

15-12-4.

"(a) Creation. In each judicial circuit, the presiding circuit judge shall appoint may establish an indigent defense commission. advisory board.

"(b) Composition; qualifications, appointment, term of office and removal of members; vacancies. The indigent defense commission advisory board shall be composed of five members who are residents of the judicial circuit in which they are appointed. There shall be two members who are attorneys licensed to practice law in Alabama, one member who is a member of a county commission within the circuit, one member who is the mayor or a member of the governing body of a municipality within the circuit, and one member who is a nonlawyer citizen. Each member shall serve for a term of six years from the date of appointment, unless removed for cause by the presiding circuit judge after notice and a hearing. Vacancies on the commission advisory board shall be filled by the presiding judge. In judicial circuits wherein the indigent defense commission previously authorized under this section was active during the fiscal year prior to the effective date of the amendatory provisions of this act, the existing commission, if approved by the presiding circuit judge, shall become the indigent defense advisory board and the members of the new advisory board shall serve for an additional six-year term of office. If the existing indigent defense commission is not approved by the presiding circuit judge, the presiding circuit judge may appoint an indigent defense advisory board pursuant to subsection (a) of Section 15-12-4.

"(c) Compensation and expenses of members. Members of the indigent defense commission advisory board shall serve without compensation; except, that necessary travel expenses in connection with commission advisory board business shall be paid by the state Office of Indigent Defense Services in the same manner as for state employees generally.

"(d) Meetings generally; quorum; chair. The indigent defense commission advisory board shall meet at least once annually and shall meet whenever so requested by the presiding circuit judge or the chair of the board. Three members shall constitute a quorum for conducting business. One member shall be designated a chair by majority vote of the members.

"(e) Powers and duties. The indigent defense commission advisory board shall perform the following duties and have the following powers:

"(1) It shall advise recommend to the presiding circuit judge, the Director of the Office of Indigent Defense Services, and the commission on the system or systems of indigent defense system to be utilized in each county of the circuit. This recommendation shall be subject to the approval of the Alabama Indigent Defense Commission. Any systems or system of indigent defense programs in any circuit or portion of the circuit shall be subject to the final approval of the Alabama Indigent Defense Commission.

"(2) It shall advise the presiding circuit judge on the operation and administration of indigent defense systems within the circuit.

"(3) It shall select the public defender by majority vote, if a public defender system is established within the circuit, determine the budget for the public defender and supervise the operation of the public defender office. It may remove the public defender for cause after notice and a hearing.

"(4) It shall select, in accordance with procedures promulgated by the Administrative Director of Courts, one or more contract counsel by majority vote, if a contract counsel system is established within the circuit; contract with such entities, subject to the approval of the presiding circuit judge; and determine the compensation to be paid to contract counsel under each contract, subject to the review of the Administrative Director of Courts and the approval of the State Comptroller. Notwithstanding this section or any other law to the contrary, no presiding judge or indigent defense commission shall by rule, regulation, or otherwise prohibit a circuit court judge or a district court judge from appointing any attorney licensed in Alabama to represent an indigent defendant.

15-12-5.

"(a) Judicial role in determining indigency. The trial judge first having cognizance of a criminal or juvenile proceeding in his or her court shall determine if an accused person or petitioner for post conviction relief is an indigent defendant as defined in Section 15-12-1. Upon appeal from a trial court to the a state appellate courts court, the trial judge or the presiding circuit judge who presided over the proceedings on appeal shall determine if the appellant is an indigent defendant as defined in Section 15-12-1.In If an indigency determination is necessary in any proceeding initiated originally in a state appellate court or in any case appealed to a state appellate court without a determination of indigency, the presiding judge or chief justice of the appellate court shall determine if the appellant or petitioner is an indigent defendant as defined in Section 15-12-1.

"(b) Criteria for determining indigency. In determining indigency, the judge shall recognize ability to pay as a variable depending on the nature, extent and liquidity of assets, the disposable net income of the defendant, the nature of the offense, the effort and skill required to gather pertinent information and the length and complexity of the proceedings.

"(c) Investigation of indigency. In determining the fact of indigency a judge may require an investigation and report by a district attorney, public defender, sheriff, probation officer or other officer of the court and report by a district attorney, public defender, or sheriff, probation officer or other officer of the court. Provided, further, that the The trial court judge shall, in all cases requiring a determination of indigency, require the accused to execute an affidavit of substantial hardship on a form approved by the Supreme Court Alabama Indigent Defense Commission. The completed affidavit of substantial hardship and the subsequent order of the court either denying or granting court appointed counsel to the accused shall become a part of the official court record in the case.

"(d) Provision of defense counsel. The judge making a determination of indigency shall provide legal representation for the indigent defendant. To the extent possible, judges shall provide continuity in legal representation. In capital cases, the trail court, after consultation with the Office of Indigent Defense Services shall assign at least two defense counsel in each case. At least one member of each capital defense team, where practicable, shall be a member of the bar in that circuit. All attorneys appointed in capital cases shall meet all of the requirements established by the commission, for appointment in capital cases.

15-12-6.

"Compensation of counsel appointed to represent indigent defendants shall be paid by the state in such amounts as otherwise provided by law. The procedure for approval and payment for such services shall be as provided by law or rule as may be promulgated by the Supreme Court or regulation adopted by the Indigent Defense Commission.

15-12-21.

"(a) If it appears to the trial court that a defendant is entitled to counsel, that the defendant does not expressly waive the right to assistance of counsel, and that the defendant is not able financially or otherwise to obtain the assistance of counsel, the court shall appoint counsel to represent and assist the defendant. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the defendant to the best of his or her ability.

"(b) If it appears to the trial court in a delinquency case, need of supervision case, or other judicial proceeding in which a juvenile is a party, that the juvenile is entitled to counsel and that the juvenile is not able financially or otherwise to obtain the assistance of counsel or that appointed counsel is otherwise required by law, the court shall appoint counsel to represent and assist the juvenile or act in the capacity of guardian ad litem for the juvenile. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the juvenile to the best of his or her ability.

"(c) If it appears to the trial court that the parents, guardian, or custodian of a juvenile who is a party in a judicial proceeding, are entitled to counsel and the parties are unable to afford counsel, upon request, the court shall appoint counsel to represent and assist the parents, guardian, or custodian. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the parties to the best of his or her ability.

"(d) Counsel appointed in cases described in subsections (a), (b), and (c), including cases tried de novo in circuit court on appeal from a juvenile proceeding, shall be entitled to receive for their services a fee to be approved by the trial court Office of Indigent Defense Services. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of fifty dollars ($50) per hour for time expended in court and thirty dollars ($30) per hour for time reasonably expended out of court in the preparation of the case. Effective October 1, 2000, the amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of sixty dollars ($60) per hour for time expended in court and forty dollars ($40) per hour for time reasonably expended out of court in the preparation of the case determined by the Indigent Defense Commission. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:

"(1) In cases where the original charge is a capital offense or a charge which carries a possible sentence of life without parole, there shall be no limit on the total fee.

"(2) Except for cases covered by subdivision (1), in cases where the original charge is a Class A felony, the total fee shall not exceed three thousand five hundred dollars ($3, 500) four thousand five hundred dollars ($4,500).

"(3) In cases where the original charge is a Class B felony, the total fee shall not exceed two thousand five hundred dollars ($2,500) three thousand five hundred dollars ($3,500).

"(4) In cases where the original charge is a Class C felony, the total fee shall not exceed one thousand five hundred dollars ($1,500) two thousand dollars ($2,000).

"(5) In juvenile cases, the total fee shall not exceed two thousand dollars ($2,000) two thousand five hundred dollars ($2,500).

"(6) In all other cases, the total fee shall not exceed one thousand dollars ($1,000) one thousand five hundred dollars ($1,500).

"Notwithstanding the above, the court Office of Indigent Defense Services for good cause shown may approve an attorney's fee in excess of the maximum amount allowed. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in the defense of his or her client, with any expense in excess of three hundred dollars ($300), to be approved in advance by the Indigent Defense Commission upon consultation with the trial court. The reasonableness of an attorney's reimbursable expenses shall be determined by the Office of Indigent Defense Services at the time reimbursement is requested. Fees and expenses of all expert investigators and others rendering defense service to be used by counsel for an indigent defendant shall be approved in advance by the trail judge. Preapproved expert fees shall be billed at the time the court is notified that all work by the expert has been completed, and shall be paid forthwith. Once an expert has been paid for services on a particular case, that expert shall not be allowed to receive further payment on the case. Retrials of any case shall be considered a new case. Upon review, the director may approve interim payments of attorney fees or expenses, or both.

"(e) Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, not to exceed 90 days, counsel shall submit to the trial court a bill for services rendered, not to exceed the amount provided in subsection (d). If counsel has submitted a bill in excess of the amount allowed in subsection (d), a sworn affidavit shall be attached to the bill stating the basis of the claim of the counsel for additional money, and setting out the good cause required by subsection (d). The bill for compensation of appointed counsel shall be submitted to the clerk of the court and then to the Office of Indigent Defense Services. An audit shall be made and if approved, that office The bill, after approval by the trial court, shall be submitted by the clerk of the court to the State Comptroller for audit and, if approved by the Comptroller, shall be forwarded forward such bill to the State Treasurer State Comptroller for payment.

15-12-22.

"(a) In all criminal cases wherein a defendant has been convicted of a serious criminal or a juvenile offense in which an appeal lies directly to the Supreme Court or Court of Criminal Appeals and the defendant expresses his or her desire to appeal the conviction, the court shall cause to be entered upon its minutes a recital of notice of appeal, and the court shall then ascertain and make findings in reference to the appeal concerning those items listed in Section 15-12-20.

"(b) If it appears that the defendant desires to appeal and is unable financially or otherwise to obtain the assistance of counsel on appeal and the defendant expresses the desire for assistance of counsel, the trial court shall appoint counsel to represent and assist the defendant on appeal. The presiding judge of the court to which the appeal is taken shall have authority to appoint counsel in the event the trial court fails to appoint and in the event it becomes necessary to further provide for counsel. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the defendant in the appeal.

"(c) If it appears that a juvenile who is a party to an appeal is otherwise required by law or by rule of court to be represented by appointed counsel, the trial court shall appoint counsel to represent and assist the juvenile on appeal. The presiding judge of the court to which the appeal is taken shall have authority to appoint counsel in the event the trial court fails to appoint and in the event it becomes necessary to further provide for counsel. It shall be the duty of the counsel, as an officer of the court and as a member of the bar, to represent and assist the juvenile in the appeal.

"(d) Counsel appointed to defend any indigent defendant for the appeal from a decision in any criminal or juvenile proceeding, excluding cases tried de novo in circuit court on appeal from a juvenile proceeding, shall be entitled to receive for their services a fee to be approved by the appellate court Office of Indigent Defense Services.

"(1) The amount of the fee shall be based on the number of hours spent by the counsel in working on the appeal and shall be computed at the rate of fifty dollars ($50) per hour for time reasonably expended in the prosecution of the appeal, and any subsequent petition for writ of certiorari.

"(2) Effective October 1, 2000, the amount of the fee shall be based on the number of hours spent by the attorney in working on the prosecution of the appeal and shall be computed at the rate of sixty dollars ($60) per hour for time reasonably expended in the prosecution of the appeal, and any subsequent petition for writ of certiorari.

"(3) The a. Except in capital cases in which the death penalty has been imposed, the total fees awarded to any one attorney in any appeal and any subsequent petition for writ of certiorari, shall not, however, exceed two thousand dollars ($2,000) two thousand five hundred dollars ($2,500), and shall be in addition to any fees awarded on the trial court level. In those cases where the state takes a pretrial appeal, appointed counsel shall be entitled to bill separately for services on the pretrial and post-trial appeals, up to two thousand dollars ($2,000) two thousand five hundred dollars ($2,500) for each appeal. In those cases where a petition for writ of certiorari is filed in the Alabama Supreme Court, counsel shall be entitled to bill separately for all services rendered after the Court of Criminal Appeals overrules the application for rehearing, or after the decision of the Court of Criminal Appeals in the case of a pretrial appeal, up to a separate limit of two thousand dollars ($2,000) two thousand five hundred dollars ($2,500) over and above any funds received for services rendered in the Court of Criminal Appeals. The counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in preparing and handling the appeal, to be approved in advance by the appellate court Office of Indigent Defense Services.

"b. In the appeal of a capital case in which the death penalty has been imposed, the total fees awarded to any one attorney shall not exceed fifteen thousand dollars ($15,000) and shall be in addition to any fees awarded at the trail court level. Any amounts billed in those cases in which the state has taken a pretrial appeal, shall not be counted against the fifteen thousand dollars ($15,000) limit imposed. Counsel shall be reimbursed for any expenses reasonably incurred in preparing and handling the appeal, to be approved for reasonableness by the Office of Indigent Defense Services.

"(e) Within a reasonable time after the disposition of the appeal, not to exceed 90 days, counsel shall submit to the appellate court a bill for services rendered, not to exceed the amount provided in subsection (d), and the bill, when approved by the presiding judge or chief justice of the appellate court, shall be submitted by the clerk of the appellate court to the state Comptroller Office of Indigent Defense Services for audit review and approval and, if approved, by the Comptroller office shall forward, forwarded the bill to the State Treasurer State Comptroller for payment.

15-12-23.

"(a) In proceedings filed in the district or circuit court involving the life and liberty of those charged with or convicted of serious criminal offenses including proceedings for habeas corpus or other post conviction remedies, and in post-trial motions or appeals in the proceedings, the trial or presiding judge or chief justice of the court in which the proceedings may be commenced or pending may appoint counsel to represent and assist those persons charged or convicted if it appears to the court that the person charged or convicted is unable financially or otherwise to obtain the assistance of counsel and desires the assistance of counsel and it further appears that counsel is necessary in the opinion of the judge to assert or protect the right of the person.

"(b) In proceedings filed in the district or circuit court involving juvenile offenses including proceedings for habeas corpus or other post conviction remedies, and in post-trial motions or appeals in the proceedings, the trial or presiding judge or chief justice of the court in which the proceedings may be commenced or pending may appoint counsel to represent and assist those juveniles so charged or convicted if it appears to the court that the juvenile charged or convicted is unable financially or otherwise to obtain the assistance of counsel and it further appears that counsel is necessary in the opinion of the judge to assert or protect the rights of the person, or court appointed counsel is otherwise required by law or rule of court.

"(c) It shall be the duty of such counsel as provided in subsections (a) and (b) to represent and assist the person in the proceedings.

"(d) The counsel appointed in the proceedings shall be entitled to receive for his or her services a fee to be approved by the judge appointing him or her Office of Indigent Defense Services. The amount of the fee shall be based on the number of hours spent by counsel in working on the proceedings and shall be computed at the rate of fifty dollars ($50) per hour for time expended in court and thirty dollars ($30) per hour for time reasonably expended in preparation of the proceedings. Effective October 1, 2000, the fee shall be computed at the rate of sixty dollars ($60) per hour for time expended in court and forty dollars ($40) per hour for time reasonably expended in preparation of the proceedings. The Except in capital cases in which the death penalty may be imposed, the total fees to counsel for the proceedings shall not exceed one thousand dollars ($1,000) one thousand five hundred dollars ($1,500). In capital cases in which the death penalty has been or could have been imposed, total fees shall not exceed fifteen thousand dollars ($15,000) for work performed at the trail court level. Fees awarded for work performed in appeals in capital cases to the Court of Criminal Appeals and the Alabama Supreme Court shall not exceed fifteen thousand dollars ($15,000). The total fees to counsel for the proceedings shall not exceed one thousand dollars ($1,000).

"(e) Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred at the trail court level in representing the defendant in the proceedings, with any expenses in excess of three hundred dollars ($300) to be approved in advance by the director. Fees and expenses of all experts, investigators, and others providing defense services shall be approved in advance by the director. Upon review, the director may authorize interim payment of the attorney fees or expenses, or both.

"(e) (f) Claim for the fee shall be submitted, approved, and paid in the same manner as provided in subsection (e) of Section 15-12-22.

15-12-26.

"(a) In any county or circuit where a contract counsel system is chosen as a method of providing indigent defense, the circuit indigent defense commission shall choose one or more contract counsel. After notice to, and consultation with, the circuit indigent defense advisory board or, where no advisory board has been established, the affected circuit bar and presiding circuit court judge, the commission may establish that a contract counsel system be used as the method to provide indigent defense services within the circuit or part thereof.

"(b) Each contract counsel chosen shall be employed pursuant to a contract containing terms and conditions as deemed necessary between the attorney, firm, association, corporation, or partnership, as the case may be, and the ccircuit indigent defense commission. The contract shall be subject to the approval of the presiding circuit judge. Unless the contract is disapproved by the presiding circuit judge within 30 days of the execution of the contract on behalf of the circuit indigent defense commission, the contract shall be deemed approved Indigent Defense Commission.

15-12-27.

"Any provision of this chapter to the contrary notwithstanding, each contract counsel shall receive compensation as set by the circuit indigent defense commission, reviewed by the Administrative Director of Courts, and approved by the State Comptroller, to be paid from the Fair Trial Tax Fund or other funds as provided by law Indigent Defense Commission.

15-12-29.

"Sections 15-12-26, 15-12-27, and 15-12-28 shall not be construed to preclude judges from appointing counsel for indigent defendants, or from assigning representation of an indigent defendant to other contract counsel where there is a conflict of interest involving the contract counsel, or if the contract counsel is unable to provide prompt and adequate representation. Sections 15-12-26, 15-12-27, and 15-12-28 shall not be construed to supersede any provision of the Alabama Rules of Criminal Procedure or any other provision of law relating to public defenders.

15-12-40.

"In any county or circuit where a public defender system is chosen as a method of providing indigent defense, the indigent defense commission shall choose a public defender.

"(a) After notice to, and consultation with the circuit indigent defense advisory board or, where no circuit indigent defense advisory board has been established, the affected circuit bar, the presiding circuit judge, or the commission may establish a public defender office as the method to provide indigent defense services within the circuit.

"(b) For each new term, and to fill any vacancy, the commission shall have the authority to select and appoint a public defender for the circuit. In making this selection and appointment, the commission shall consider any recommendations of attorneys made by the circuit indigent defense advisory board or where no indigent defense advisory board has been established, by the affected circuit's bar and presiding circuit judge. These recommendations may include both resident and non-resident attorneys of the affected circuit. These recommendations shall be submitted to the commission within 60 days of a request for the same by the commission. Attorneys appointed hereunder as public defenders shall be licensed to practice law in Alabama at the time of the appointment or by the time they assume office, are licensed to practice law in Alabama.

15-12-41.

"(a) The public defender shall be appointed for a fixed term not to exceed six years subject to reappointment by the commission and may be removed from office for cause by the indigent defense commission.

"(b) The indigent defense commission may require that the public defender serve full time or part time.

15-12-42.

"The public defender shall have the following powers and duties:

"(1) Within his or her geographic jurisdiction, the public defender shall provide defense services to indigent defendants charged with misdemeanors and felonies and referred to him by the court persons as defined in Section 15-21-1.

"(2) The public defender shall, at the request and with the consent of a municipal governing body and the indigent defense commission, represent indigent defendants in a municipal court within his geographic jurisdiction.

"(3) (2) The public defender may, with consent of the indigent defense commission, may represent an indigent defendant in a state appellate court.

"(4) The public defender may, if empowered by the presiding circuit judge and the indigent defense commission, administer the system of appointing private counsel for indigent defendants within his geographic jurisdiction.

15-12-43.

"(a) The public defender shall receive a salary set by the indigent defense commission and approved by the Administrative Director of Courts commission. The salary shall not exceed the state salary paid to a district attorney in the circuit and shall be paid in the same manner as employees of the state.

"(b) All salary and expenses of a public defender shall be paid by the state out of the fair trial tax fund Fair Trial Tax Fund or other funds appropriated by the Legislature for such purposes; except, that in counties authorized to impose a court cost for defender services, the county shall fund defender services from the revenues of said court cost, and the state shall pay a reasonable share of the cost of maintaining such office, such reasonable share to be determined by the Administrative Director of Courts Indigent Defense Commission.

15-12-44.

"The public defender shall keep such records and make such reports on matters related to the operation of the office of the public defender as are required by the indigent defense commission director. except, that The attorney-client communications involving the defender or attorneys employed by him or her shall remain confidential.

15-12-45.

"The indigent defense commission, subject to the approval of the Administrative Director of Courts, (a) The director in compliance with procedures adopted by commission may approve expenditures for attorneys, investigators, other personnel and nonpersonnel expenses of the public defender. Authorized employees of the public defender offices shall be entitled to annual and sick leave, insurance, retirement, and other state employee benefits, including cost-of-living raises and bonuses authorized by the Legislature for state employees.

"(b) The operating expenses and staff salaries and benefits for the offices of the public defenders shall be approved in advance by the Office of Indigent Defense Services as part of an annual budget for the subject public defender's office, and once the budget is approved, shall be paid by the state from funds appropriated annually from the Fair Trial Tax Fund or other funds appropriated by the Legislature for this purpose. The expenses shall include, but not be limited to, the salary, benefits, and expenses of all eligible employees and positions, training and education, travel, research, equipment, and supplies.

"(c) Each public defender may employ assistant public defenders, investigators, and other staff, full time or part time, as authorized by the Indigent Defense Commission. Assistants, investigators, and other staff shall be appointed by the public defender and serve at the pleasure of the public defender.

15-12-46.

"Nothing in this article shall be construed to exclude establishment of appointed counsel systems parallel to a public defender system or to preclude judges from appointing counsel for indigent defendants where there is a conflict of interest involving the public defender or if the public defender is unable to provide prompt and adequate representation."

Section 7. Section 15-12-2 of the Code of Alabama 1975, providing for the determination as to indigent defense systems to be used in circuit, district, and municipal courts; Section 15-12-3 of the Code of Alabama 1975, providing for the presiding circuit judges to administer the circuit indigent defense system; and Section 15-12-24.1 of the Code of Alabama 1975, providing for withdrawals from the Fair Trail Tax Fund to pay expenses of the State Comptroller for administering the defense of indigents are specifically repealed.

Section 8. Transition and effective dates. The Director of the Administrative Office of Courts shall assist the Chair of the Alabama Indigent Defense Commission in retaining the initial director of indigent defense services of the commission. The Director of the Administrative Office of Courts shall recruit and interview prospective candidates and shall submit at least three names to the commission for its consideration. The commission may hire its initial director of indigent defense services from the list or may request the chair of the commission and the Director of the Administrative Office of Courts to submit additional names.

Section 9. Persons holding the position of public defender or appellate defender on the date this act becomes effective shall be entitled to serve the remainder of their terms of office.

Section 10. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.


Alabama Indigent Defense Commission
Indigent Defense Services Office
Indigent Defense Advisory Board
Judicial Circuits
Appropriations
Attorneys
Crimes and Offenses
Criminal Law and Procedure
Fair Trial Tax Fund
State Comptroller
Administrative Office of Courts
Court, Circuit
Court of Criminal Appeals
Court, Supreme
Capital Offenses
Juveniles
Code Amended
Code Repealed