Office of the State Public Defender …

                  Office of the State Public Defender
                        Administrative Policies

Subject: Determination of Indigence            Policy No.: 105
Title      47                                  Pages:       7
Section: 1-111                                 Last Review Date: 12-6-07
Effective Date: 7-1-06                         Revision Date:    2-1-08

1.0   POLICY

      1.1   The Office of the State Public Defender (hereinafter State Office) will
            provide public defender services to applicants that qualify under 47-1-111,
            MCA.
      1.2   Beginning July 1, 2006 all district and limited courts will order the Office of
            the State Public Defender to assign counsel prior to the determination of
            indigence.

2.0   PREPARATION AND DELIVERY OF INDIGENCE FORM

      2.1   Beginning July 1, 2006 all district and limited courts will send appointment
            forms to Regional Public Defender Offices. The appointment form is
            provided by the State Office, and provides information about the applicant
            for public defender services.
      2.2   The State Office shall provide the Regional Public Defender Offices with
            Indigence Determination (ID) forms as prepared by the State Office and
            approved by the Montana Public Defender Commission.
      2.3   Regional Deputy Public Defenders or their staff will deliver forms to all jails
            and courthouses and any other venue deemed appropriate.
      2.4   An applicant for public defender services will be assigned provisional
            counsel prior to the determination of the applicant's indigence.
      2.5   An applicant for public defender services must complete the ID form, sign
            it, and return it to the Regional Public Defender Office.
      2.6   Indigence Determination Specialists (IDS), appointed by each Regional
            Public Defender Office, will aid any applicant requesting assistance.
            Information on the ID form is confidential.

3.0   DETERMINATION OF INDIGENCE

      3.1   The IDS will review the ID form, fill in any missing information, and assure
            that the ID form is signed by the applicant.
      3.2   The IDS will conduct two tests to determine if an applicant is eligible for
            state public defender services.
            A. The first test is a "Gross Household Income (GHI) Test" that gathers all
                gross income from all occupants in the applicant's household. This GHI
                is compared to the Gross Income Guidelines (GIG) as provided in
                Attachment A to this policy. If the GHI dollar amount is less than the

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            dollar amount listed on the GIG the applicant passes this test. If the
            applicant fails the first test the IDS must go to the second test.
       B. When the IDS determines that an applicant seeking public defender
            services is not clearly indigent within the meaning of subsection A
            above, the IDS shall then determine if the applicant qualifies because
            retaining competent private counsel would result in substantial
            hardship to the applicant or his household. This second test reviews
            both the disposable income and assets of the applicant. Disposable
            income is Gross Household Income less all expenses (rent, utilities,
            food, medical and loan payments, child support, etc). Assets are things
            that can be used as collateral to obtain loans, like homes, land,
            automobiles, investments, etc. This test is rather subjective in that the
            IDS must make the determination that the applicant can obtain, without
            substantial hardship, competent private legal counsel by paying legal
            retainers from net monthly income or borrowings on assets. The crime
            charged shall also be a factor considered in this determination.
3.3    If the applicant passes either test they are eligible for services.          If
       qualifying under subsection A or B above, the person may, as appropriate
       be asked to repay some or all of the costs of representation.
3.4    If qualified under either subsection, the court before which the person is
       appearing will be advised that the person has qualified for public defender
       representation.
3.5    If the IDS has a question regarding an applicant's eligibility for public
       defender services, the Indigence Determination Officer (as appointed by
       the Chief Public Defender) will make a ruling.
3.6    If the applicant is eligible for public defender services, a written notice of
       approval shall be sent to the applicant, and the appropriate public
       defender office, contract attorney, or conflict coordinator.
3.7    Applicants approved for public defender services will be subject to
       eligibility review by the IDS every six months. If an applicant is found to be
       financially able to provide for their own defense they will be notified by the
       IDS and parts 3.6 through 3.9 of this policy and procedure will apply.
3.8    If the applicant does not qualify for public defender services, a written
       notice of disqualification and notice of the right to have the court review
       the finding will be sent to the applicant.
3.9    The Regional Deputy Public Defender shall immediately notify the court of
       record when it is determined that an applicant does not qualify for public
       defender services (refer to the Attachment B, Standard Letter of
       Notification, and Attachment C, Notice of Determination Regarding
       Indigency).
3.10   The judge must rescind the appointment of counsel when notified that an
       applicant does not qualify for public defender services.
3.11   A judge may overrule a determination that an applicant is not eligible for
       public defender services. If overruled, the State Office will provide public
       defender services to the applicant.



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4.0   REIMBURSEMENT OF ATTORNEY FEES

      4.1    If the applicant qualified under 3.2, and the applicant is found guilty by
             plea or trial, the Regional Deputy Public Defender or his/her designee
             shall determine the amount owed for public defender services.
      4.2    If it appears that the defendant is unable to repay defense costs, and will
             not be able to repay defense costs, then pursuant to MCA §46-8-113
             counsel for the defendant shall resist any attempt by the court to impose
             defense costs as a condition of sentencing. If the defendant has some
             ability to pay, then in determining both the amount and method of payment
             any payment plan must take into consideration the financial resources of
             the defendant and the nature of the burden that payment of costs will
             impose.
      4.3    The hourly rate for public defender services is set at $71.00;
                  A. The amount of time spent on a case shall conform to the amount of
                      time reported on the public defenders timesheet.
                  B. A copy of the bill along with notification of where payments shall be
                      made will be provided to the client.
      4.4    If the person is acquitted or the charges are dismissed, no reimbursement
             will be sought.

5.0   CLOSING

      Questions about this policy should be directed to the State Office at the following
      address:

      Office of the State Public Defender
      Administrative Service Division
      44 West Park
      Butte, MT 59701
      Phone 406-496-6080




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                                 ATTACHMENT A

                         GROSS INCOME GUIDELINES

                                       2008



Number of Persons in Household      Gross Household Income Guidelines

            1                                      $13,832
            2                                      $18,620
            3                                      $23,408
            4                                      $28,196
            5                                      $32,984
            6                                      $37,772
            7                                      $42,560
            8                                      $47,348
      Each Additional Member Add:                   $4,788




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                                    ATTACHMENT B

                      STANDARD LETTER OF NOTIFICATION



Name
Regional Deputy Public Defender
Region (#)
(Address)

(Date)

(Client Name)
(Client Address)

Dear (Client):

Please be advised that in applying the criteria outlined in Section 47-1-111, MCA, to
the information you provided on your indigency questionnaire, I have determined that
you do not qualify for public defender services. The public defender who is currently
representing you will ask the Court to rescind the appointment of the Office of Public
Defender. Your public defender will continue to represent you until you hire a private
attorney. You must hire a private attorney within 10 days of this letter.

If you do not agree with this determination, you have the right to ask the judge in your
case to review your financial status. If you do ask for review, we are required to make
your indigency questionnaire available to the judge and the prosecutor for inspection.

Sincerely,



Regional Deputy Public Defender
Region (#)




                                         Page 5 of 7
                                     ATTACHMENT C

               NOTICE OF DETERMINATION REGARDING INDIGENCY

Name
Regional Deputy Public Defender
Region (#)
(Address)

Telephone:




        MONTANA (XXXXX) JUDICIAL DISTRICT COURT, (XXXX) COUNTY



STATE OF MONTANA,                         )
                                          )       Cause No. ____________________
           Plaintiff,                     )
                                          )
   v.                                     )       NOTICE OF DETERMINATION
                                          )       REGARDING INDIGENCY
____________________,                     )
                                          )
           Defendant.                     )



        COMES NOW, (RDPD), attorney for Defendant, (Name), and hereby notifies

the Court that Defendant does not meet the criteria set out in Section 47-1-111, MCA, to

be eligible for representation by the Office of the State Public Defender.

   The Defendant has been notified of this determination as well as his right to ask this

Court to review the determination.

   (Name), who has been assigned to represent Defendant, will continue to represent

Defendant until this court rescinds the appointment of the Office of the State Public


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Defender. Motion to rescind the appointment of the Office of the State Public Defender

will be filed within 10 days.

       DATED this           day of                   , 2006.




                                        (Name)
                                        Regional Deputy Public Defender
                                        Region (#)




                                CERTIFICATE OF SERVICE

       I hereby certify that I caused to be mailed a true and accurate copy of the

foregoing NOTIFICATION OF DETERMINATION, postage prepaid, by U.S. mail, to

the following:

       Dated this _____day of                        , 200     .




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