77-32-202 - Procedure for determination of indigency -- Standards.
77-32-202. Procedure for determination of indigency -- Standards.
(1) A determination of indigency or continuing indigency of any defendant may be madeby the court at any stage of the proceedings.
(2) (a) Any defendant claiming indigency who is charged with a crime the penalty ofwhich is a class A misdemeanor or felony shall file with the court a fully complete affidavitverified by a notary or other person authorized by law to administer an oath and file a copy of thataffidavit with the prosecuting entity. The affidavit shall contain the factual information requiredin this section and by the court.
(b) A defendant claiming indigency who is charged with a crime the penalty of which isless than a class A misdemeanor is not required to comply with the requirements of Subsection(2)(a) and Subsection (4).
(3) (a) "Indigency" means that a person:
(i) does not have sufficient income, assets, credit, or other means to provide for thepayment of legal counsel and all other necessary expenses of representation without deprivingthat person or the family of that person of food, shelter, clothing, and other necessities; or
(ii) has an income level at or below 150% of the United States poverty level as defined bythe most recently revised poverty income guidelines published by the United States Departmentof Health and Human Services; and
(iii) has not transferred or otherwise disposed of any assets since the commission of theoffense with the intent of establishing eligibility for the appointment of counsel under this chapter.
(b) In making a determination of indigency, the court shall consider:
(i) the probable expense and burden of defending the case;
(ii) the ownership of, or any interest in, any tangible or intangible personal property orreal property, or reasonable expectancy of any such interest;
(iii) the amounts of debts owned by the defendant or that might reasonably be incurred bythe defendant because of illness or other needs within the defendant's family;
(iv) number, ages, and relationships of any dependents; and
(v) other relevant factors.
(4) Upon making a finding of indigence, the court shall enter the findings on the recordand enter an order assigning defense counsel to represent the defendant in the case. The clerk ofthe court shall send a copy of the affidavit and order to the prosecutor.
(5) If the county or municipality providing the defense counsel has any objections to orconcerns with the finding of indigency and assignment of defense counsel or the continuing ofindigency status and assignment of a public defender, it shall file notice with the court and ahearing shall be scheduled to review the findings and give the county or municipality theopportunity to present evidence and arguments as to the reasons the finding of indigency shouldbe reversed.
(6) (a) If the trial court finds within one year after the determination of indigency that anydefendant was erroneously or improperly determined to be indigent, the county or municipalitymay proceed against that defendant for the reasonable value of the services rendered to thedefendant, including all costs paid by the county or municipality in providing the defense counsel.
(b) Subsection (6)(a) does not affect any restitution required of the defendant by the courtpursuant to Title 77, Chapter 32a, Defense Costs.
(c) A defendant claiming indigency has a continuing duty to inform the court of anymaterial changes or change in circumstances that may affect the determination of his eligibility for
indigency.
(d) Any person who intentionally or knowingly makes a material false statement or omitsa material fact in an affidavit for indigency is guilty of a class B misdemeanor.
Amended by Chapter 263, 2002 General Session