Chief Justice Directive 97-01

• Publication year: 1997
• Pages: 133

26 Colo.Law. 133 Colorado Lawyer 1997.

1997, November, Pg. 133. Chief Justice Directive 97-01

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133

Vol.26, No. 11, Pg. 133

The Colorado Lawyer
November 1997
Vol. 26, No. 11 [Page 133]

From the Courts
Court Business
Chief Justice Directive 97-01

CHIEF JUSTICE DIRECTIVE 97-01

Supreme Court of Colorado

Office of the Chief Justice

Appointment of State-Funded Counsel in
Criminal and Juvenile Delinquency Cases

I. Statutory Authority

A. The federal and state constitutions provide that an accused person has the right to be represented by counsel in criminal prosecutions. This constitutional right has been interpreted to mean that counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a likely penalty, unless incarceration is specifically waived as a sentencing option pursuant to Section 16-5-501, 6 C.R.S. (1997), or there is a waiver of the right to counsel at the advisement

B. State funds are appropriated to the Office of the Public Defender to provide for the representation of indigent persons in criminal and juvenile delinquency cases pursuant to section 21-1-103, 6 C.R.S. (1997)

C. State funds are appropriated to the Office of Alternate Defense Counsel to provide for the representation of indigent persons in criminal and delinquency cases in cases in which the Public Defender declares a conflict of interest or the court finds the person to be partially indigent pursuant to Section 21-2-103, 6 C.R.S. (1997).

D. Section 19-2-706(2), 6 C.R.S. (1997) provides for the representation of juveniles in delinquency cases in which (1) the parent or legal guardian refuses to retain counsel for the juvenile, or (2) the court finds such representation is necessary to protect the interest of the juvenile or other parties involved in the case. When such an appointment is necessary and the juvenile does not qualify for representation by the Public Defender or the Office of Alternate Defense Counsel, the Judicial Department will pay for the costs of counsel and investigator services as no funds are specifically appropriated for this purpose.

II. Indigency Determination

A. A defendant in a criminal case or a juvenile's parent or legal guardian in a delinquency case must be indigent to be represented by the Public Defender or by the Office of Alternate Defense Counsel, in cases of Public Defender conflict, at state expense. Such person(s) must also be indigent, partially indigent, or otherwise qualify for court-appointed counsel as described in Section III. for the court to authorize the payment of certain costs/expenses. Any defendant in a criminal case, or the juvenile's parent, guardian, or legal custodian in a delinquency case, requesting court-appointed representation on the basis of indigency or partial indigency must complete Form JDF 208, Application for Court-Appointed Counsel or Guardian ad Litem, signed under oath, and either pay the application fee or have the fee waived pursuant to Section 21-1-103(3), 66 C.R.S. (1997), before indigency may be considered.

B. An indigent person is one whose financial circumstances fall within the fiscal standards established by the Supreme Court (Attachments A, B, and C).

C. Pursuant to 21-1-103 (3), 6 C.R.S. (1997), the determination of indigency shall be made by the Public Defender subject to review by the court. Therefore, all persons seeking court-appointed representation shall complete form JDF 208 and shall first apply with the Office of the Public Defender. The Public Defender will determine if the defendant, or a juvenile's parent or legal guardian in a delinquency case, is eligible for representation in accordance with the fiscal standards.

D. If the Public Defender finds the person to be ineligible and denies representation, the court shall determine the following: (1) whether the person is partially indigent and the Office of Alternate Defense Counsel should be appointed as provided in paragraph III.B.2. herein; (2) whether the court disagrees with the Public Defender's evaluation and determination, and the Public Defender should be appointed; or (3) whether the person is not eligible for state-paid representation. The court may use the judicial district's collection investigator(s) to provide a recommendation to the court relative to the above determinations.

III. Guidelines for Appointment of Counsel and Investigators

A. Public Defender Appointments.

1. Appointments on the Basis of Indigency: To be eligible for representation by the Public Defender, a defendant, or a juvenile's parent or legal guardian in a delinquency case, must be indigent, as defined above and determined by the Public Defender, subject to review by the court. If such person is indigent, the court shall appoint the Public Defender, except as otherwise provided in paragraph III.B.

2. Appointments to Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to conflict-free counsel to assist in motions under Rule 35 if it is determined that there is arguable merit to the proceeding. If another attorney represents the defendant and withdraws...