§ 8-14-105 — Determination of indigency - Appointment of counsel - Multiple defendants - Law students

Tennessee § 8-14-105

• Jurisdiction: Tennessee
• Title: 8

Text

(a) When any person appears without counsel before any court of this state exercising original jurisdiction (whether magistrate, general sessions, municipal, juvenile, circuit, criminal or any court empowered to deprive the person of liberty) upon a criminal prosecution or juvenile delinquency proceeding involving a possible deprivation of liberty, the court shall inquire whether such person is financially able to employ counsel. If the person claims to be without such means, the court shall examine such person and any witnesses the indigent person or the court may call and proceed to determine whether the person is indigent. The determination shall not be based alone on the person's ability to make a bail bond, but the court shall consider income, property, obligations, the number and ages of dependents and any other matters deemed pertinent. (b) In all habeas corpus and post-conviction proceedings, the court having original jurisdiction of the matter shall determine the question of the petitioner's indigency if such is claimed. (c) In every case arising under this section, the court's determination of indigency or nonindigency shall be reduced to writing and signed by the court and filed with the papers of the cause. If the court is one of record, the court's determination shall also be entered upon its official minutes. (d) (1) If the court determines that the person is indigent, as defined in § 8-14-101 , and the person has not waived the right to counsel, the court shall make and sign an order appointing the district public defender, or such other appointed counsel as provided by law, to represent the person. The original of the order shall be filed with the papers of the cause, and if the court is one of record, the order shall also be entered upon its official minutes. (2) If the court appoints the district public defender to represent an accused in any proceeding under this section, but finds the accused is financially able to defray a portion or all the cost to the state of representation by the public defender, then the court shall enter an order directing the party to pay into the registry of the clerk of such court such sum of money as the court determines the accused is able to pay. Such sum shall be subject to execution as any other judgment and may also be made a condition of discharge from probation. Such sum as ordered by the court shall be paid by the accused independently and separately from any fines and costs associated with the cause, and such moneys paid by the accused and collected by the clerk of the court pursuant to this section shall be collected independently and separately from any fines and costs associated with the cause and be applied directly to the sum ordered by the court to be paid under this section. The court may provide for payments to be made at intervals, which the court shall establish, and upon such terms and conditions as are fair and just. The court may also modify its order when there has been a change in the circumstances of the accused. (3) The clerk of the court shall collect all moneys paid by an accused pursuant to this section. When the accused fails to comply with the orders of the court, the clerk shall notify the court of the accused's failure to comply. The clerk shall, at the end of each month, pay to, and forward all payments received pursuant to this section to the office of the executive director of the district public defenders conference. The clerk of the court shall receive a commission of five percent (5%) of all moneys collected pursuant to the order of the court; provided, that in counties having a population of more than seven hundred thousand (700,000), according to the 1990 federal census or any subsequent federal census, such commission shall be ten percent (10%). (e) In any case or proceeding wherein there is more than one (1) indigent person accused, one (1) such person shall be represented by the district public defender's office, and the court shall appoint an attorney to represent such other indigent persons. Such other indigent persons may also be represented by the district public defender's office; provided, that the court makes an affirmative finding prior to the appointment that no conflict of interest exists and it appears there is good cause to believe no conflict of interest is likely to arise. The original of the order shall be filed with the papers of the cause, and if the court is one of record, the order shall also be entered upon its official minutes. (f) In any case when the trial court is of the opinion that proper representation of an indigent person or persons makes it necessary to do so, the court may for that purpose appoint one (1) or more senior law students actively participating in a legal aid clinic operated by an approved law school located in the judicial district, in accordance with Tennessee Supreme Court Rule 7. The legal aid clinic shall be notified promptly of the appointment and shall be furnished a copy of the order of appointment. The original of the order shall be filed with the papers of the cause, and if the court is one of record, the order shall also be entered upon its official minutes. (g) All attorneys and law students appointed as provided in subsections (e) and (f) shall be paid by the state pursuant to §§ 40-14-207 and 40-14-208 . (h) Upon the appointment of the district public defender, and/or an attorney pursuant to subsections (e) and (f), no further proceedings shall be had in the case until such counsel has had reasonably sufficient time and opportunity to prepare the case for trial. District public defenders shall be authorized access to query state and federal criminal records history information as the duties of their office may require. (i) If the court determines that the person accused or proceeded against in any criminal prosecution or other proceeding involving a possible deprivation of liberty, or the person filing a habeas corpus or other post-conviction proceeding is not an indigent person, the court shall advise such person with respect to right to counsel and afford such person a reasonable time, to be fixed by the court, and opportunity to secure counsel and shall stay further proceedings until counsel so obtained has had reasonable time and opportunity to prepare the case for trial.

Legislative History

Acts 1989, ch. 588, § 5; 1990, ch. 751, § 3; 1991, ch. 345, §§ 3, 4; 1995, ch. 456, § 5; 1996, ch. 610, § 4; 1999, ch. 165, § 5.