SCS/SB 414 - This act modifies provisions relating to the legal defense of indigent persons. PROBATION VIOLATIONS (559.036.6, & 600.042.4(3))
Under current law, public defenders represent indigent persons who are detained or charged with a violation of probation or parole.
This act provides that indigent persons who are charged with a violation of probation or parole must be represented by a public defender if the judge in the case determines that such representation is necessary to protect the person's due process rights. No less than five days prior to any hearing to determine whether a person has violated the terms of probation or parole, except for good cause shown, the judge must inform the person of the right to request an attorney. If the person requests an attorney, the judge must then determine whether counsel is necessary to protect the person's due process rights. If the judge finds that the appointment of counsel is not necessary, then the judge must state the reasons for such decision in the record.
DEFINITIONS (600.011, 600.041, & 600.042)
This act redefines various positions within the Public Defender System, including assistant public defenders, contract counsel, deputy directors, deputy district defenders, and district defenders. The definitions reflect the current administrative structure of the public defender system.
This act specifies that the deputy director exercises the duties of the director on a temporary basis only, when the director is absent or has resigned, until the commission appoints a new director.
These provisions are identical to provisions in SB 37 (2009).
CASES ELIGIBLE FOR REPRESENTATION (600.042.4(2) &(6))
Currently, indigent persons are eligible for public defender services when detained or charged with a misdemeanor which will likely result in confinement. Under this act, such persons are only eligible when the prosecuting attorney has requested a jail sentence.
CASELOAD RELIEF (600.062)
This act provides that, notwithstanding the rulemaking authority of the Director of the State Public Defender System and the Public Defender Commission, neither the Director nor the Commission may limit the availability of a district office or a public defender to accept cases based on a determination that the office has exceeded a caseload standard.
In addition, this act allows any district defender to file a motion to request a conference to discuss caseload issues involving an individual public defender or defenders, but not the entire office, with the presiding judge of a circuit court served by the office. The circuit clerk must provide a copy of the motion to the prosecuting attorney who serves the circuit court. If the motion is approved, a date for the conference must be set within 30 days of the filing of the motion and notice of the date must be sent to the district defender and the prosecuting attorney.
Within 30 days of the conference, the judge must issue an order either granting or denying relief. In order to grant relief, the judge must find that the public defender or defenders will be unable to provide effective assistance of counsel due to caseload issues.
In the order, the judge may appoint private counsel to represent any eligible defendant, investigate the financial status of any eligible defendant, determine, with the express concurrence of the prosecuting attorney, whether any cases can be disposed of without the imposition of a jail or prison sentence and allow those cases to proceed without counsel, modify the conditions of release for a defendant represented by a public defender, place cases on a waiting list for a public defender, and grant continuances.
The prosecuting attorney and district defender have 10 days to appeal the order. Such appeals must be expedited by the appellate court in every manner practicable.
This act gives the Public Defender Commission and the Missouri Supreme Court authority to make rules to implement the above process.
REQUIREMENTS FOR APPOINTING PRIVATE COUNSEL (600.064)
This act requires judges, before appointing private counsel to represent an indigent defendant, to investigate the defendant's financial status to verify the defendant does not have the means to obtain counsel, and provide each appointed lawyer, upon request, with an evidentiary hearing on the propriety of the appointment. A judge who finds that an appointment will cause undue hardship on an attorney must appoint a different attorney to represent the defendant.
This act prohibits a judge from requiring a lawyer to advance any amount of personal funds for the cost of defending an indigent defendant.
In addition, this act provides that, when an employee of the General Assembly is appointed to represent an indigent defendant during the legislative, special, or veto session, or an out-of-session committee hearing, the judge must postpone the trial and other court proceedings to a date that does not fall during such times or appoint a different lawyer who is not an employee of the General Assembly.
This act provides that private counsel appointed to represent an indigent defendant may seek payment of litigation expenses from the Public Defender System, but such expenses shall not include counsel fees and shall be approved in advance by the director.
This act is similar to provisions contained in the truly agreed to and finally passed SS/SCS/HCS/HB 215 (2013).
MEGHAN LUECKE