2006 Code of Virginia § 19.2-159 - (Effective until July 1, 2008) Determination of indigency; guidelines; statement of indigence; appo...

19.2-159. (Effective until July 1, 2008) Determination of indigency;guidelines; statement of indigence; appointment of counsel.

A. If the accused shall claim that he is indigent, and the charge against himis a criminal offense which may be punishable by death or confinement in thestate correctional facility or jail, subject to the provisions of 19.2-160,the court shall determine from oral examination of the accused or othercompetent evidence whether or not the accused is indigent within thecontemplation of law pursuant to the guidelines set forth in this section.

B. In making its finding, the court shall determine whether or not theaccused is a current recipient of a state or federally funded publicassistance program for the indigent. If the accused is a current recipient ofsuch a program and does not waive his right to counsel or retain counsel onhis own behalf, he shall be presumed eligible for the appointment of counsel.This presumption shall be rebuttable where the court finds that a morethorough examination of the financial resources of the defendant isnecessary. If the accused shall claim to be indigent and is not presumptivelyeligible under the provisions of this section, then a thorough examination ofthe financial resources of the accused shall be made with consideration givento the following:

1. The net income of the accused, which shall include his total salary andwages minus deductions required by law. The court also shall take intoaccount income and amenities from other sources including but not limited tosocial security funds, union funds, veteran's benefits, other regular supportfrom an absent family member, public or private employee pensions, dividends,interests, rents, estates, trusts, or gifts.

2. All assets of the accused which are convertible into cash within areasonable period of time without causing substantial hardship orjeopardizing the ability of the accused to maintain home and employment.Assets shall include all cash on hand as well as in checking and savingsaccounts, stocks, bonds, certificates of deposit, and tax refunds. Allpersonal property owned by the accused which is readily convertible into cashshall be considered, except property exempt from attachment. Any real estateowned by the accused shall be considered in terms of the amounts which couldbe raised by a loan on the property. For purposes of eligibilitydetermination, the income, assets, and expenses of the spouse, if any, who isa member of the accused's household, shall be considered, unless the spousewas the victim of the offense or offenses allegedly committed by the accused.

3. Any exceptional expenses of the accused and his family which would, in allprobability, prohibit him from being able to secure private counsel. Suchitems shall include but not be limited to costs for medical care, familysupport obligations, and child care payments.

The available funds of the accused shall be calculated as the sum of histotal income and assets less the exceptional expenses as provided inparagraph 3 above. If the accused does not waive his right to counsel orretain counsel on his own behalf, counsel shall be appointed for the accusedif his available funds are equal to or below 125 percent of the federalpoverty income guidelines prescribed for the size of the household of theaccused by the federal Department of Health and Human Services. The SupremeCourt of Virginia shall be responsible for distributing to all courts theannual updates of the federal poverty income guidelines made by theDepartment.

If the available funds of the accused exceed 125 percent of the federalpoverty income guidelines and the accused fails to employ counsel and doesnot waive his right to counsel, the court may, in exceptional circumstances,and where the ends of justice so require, appoint an attorney to representthe accused. However, in making such appointments, the court shall state inwriting its reasons for so doing. The written statement by the court shall beincluded in the permanent record of the case.

C. If the court determines that the accused is indigent as contemplated bylaw pursuant to the guidelines set forth in this section, the court shallprovide the accused with a statement which shall contain the following:

"Ihavebeenadvisedthis....dayof.......,20..,bythe(name
ofcourt)courtofmyrighttorepresentationbycounselinthetrialofthe
chargependingagainstme;IcertifythatIamwithoutmeanstoemploycounsel
andIherebyrequestthecourttoappointcounselforme."
......................................................(signatureofaccused)

The court shall also require the accused to complete a written financialstatement to support the claim of indigency and to permit the court todetermine whether or not the accused is indigent within the contemplation oflaw. The accused shall execute the said statements under oath, and the saidcourt shall appoint competent counsel to represent the accused in theproceeding against him, including an appeal, if any, until relieved orreplaced by other counsel.

The executed statements by the accused and the order of appointment ofcounsel shall be filed with and become a part of the record of suchproceeding.

All other instances in which the appointment of counsel is required for anindigent shall be made in accordance with the guidelines prescribed in thissection.

D. Except in jurisdictions having a public defender, counsel appointed by thecourt for representation of the accused shall be selected by a fair system ofrotation among members of the bar practicing before the court whose names areon the list maintained by the Indigent Defense Commission pursuant to 19.2-163.01. If no attorney who is on the list maintained by the IndigentDefense Commission is reasonably available, the court may appoint as counselan attorney not on the list who has otherwise demonstrated to the court'ssatisfaction an appropriate level of training and experience. The court shallprovide notice to the Commission of the appointment of the attorney.

(Code 1950, 19.1-241.3; 1964, c. 657; 1966, c. 460; 1975, c. 495; 1976, c.553; 1978, c. 720; 1984, c. 709; 2004, cc. 884, 921; 2006, cc. 680, 708.)

19.2-159. (Effective July 1, 2008) Determination of indigency; guidelines;statement of indigence; appointment of counsel.

If the accused shall claim that he is indigent, and the charge against him isa criminal offense which may be punishable by death or confinement in thestate correctional facility or jail, subject to the provisions of 19.2-160,the court shall determine from oral examination of the accused or othercompetent evidence whether or not the accused is indigent within thecontemplation of law pursuant to the guidelines set forth in this section.

In making its finding, the court shall determine whether or not the accusedis a current recipient of a state or federally funded public assistanceprogram for the indigent. If the accused is a current recipient of such aprogram and does not waive his right to counsel or retain counsel on his ownbehalf, he shall be presumed eligible for the appointment of counsel. Thispresumption shall be rebuttable where the court finds that a more thoroughexamination of the financial resources of the defendant is necessary. If theaccused shall claim to be indigent and is not presumptively eligible underthe provisions of this section, then a thorough examination of the financialresources of the accused shall be made with consideration given to thefollowing:

1. The net income of the accused, which shall include his total salary andwages minus deductions required by law. The court also shall take intoaccount income and amenities from other sources including but not limited tosocial security funds, union funds, veteran's benefits, other regular supportfrom an absent family member, public or private employee pensions, dividends,interests, rents, estates, trusts, or gifts.

2. All assets of the accused which are convertible into cash within areasonable period of time without causing substantial hardship orjeopardizing the ability of the accused to maintain home and employment.Assets shall include all cash on hand as well as in checking and savingsaccounts, stocks, bonds, certificates of deposit, and tax refunds. Allpersonal property owned by the accused which is readily convertible into cashshall be considered, except property exempt from attachment. Any real estateowned by the accused shall be considered in terms of the amounts which couldbe raised by a loan on the property. For purposes of eligibilitydetermination, the income, assets, and expenses of the spouse, if any, who isa member of the accused's household, shall be considered, unless the spousewas the victim of the offense or offenses allegedly committed by the accused.

3. Any exceptional expenses of the accused and his family which would, in allprobability, prohibit him from being able to secure private counsel. Suchitems shall include but not be limited to costs for medical care, familysupport obligations, and child care payments.

The available funds of the accused shall be calculated as the sum of histotal income and assets less the exceptional expenses as provided inparagraph 3 above. If the accused does not waive his right to counsel orretain counsel on his own behalf, counsel shall be appointed for the accusedif his available funds are equal to or below 125 percent of the federalpoverty income guidelines prescribed for the size of the household of theaccused by the federal Department of Health and Human Services. The SupremeCourt of Virginia shall be responsible for distributing to all courts theannual updates of the federal poverty income guidelines made by theDepartment.

If the available funds of the accused exceed 125 percent of the federalpoverty income guidelines and the accused fails to employ counsel and doesnot waive his right to counsel, the court may, in exceptional circumstances,and where the ends of justice so require, appoint an attorney to representthe accused. However, in making such appointments, the court shall state inwriting its reasons for so doing. The written statement by the court shall beincluded in the permanent record of the case.

If the court determines that the accused is indigent as contemplated by lawpursuant to the guidelines set forth in this section, the court shall providethe accused with a statement which shall contain the following:

"Ihavebeenadvisedthis....dayof.......,20..,bythe(name
ofcourt)courtofmyrighttorepresentationbycounselinthetrialofthe
chargependingagainstme;IcertifythatIamwithoutmeanstoemploycounsel
andIherebyrequestthecourttoappointcounselforme."
......................................................(signatureofaccused)

The court shall also require the accused to complete a written financialstatement to support the claim of indigency and to permit the court todetermine whether or not the accused is indigent within the contemplation oflaw. The accused shall execute the said statements under oath, and the saidcourt shall appoint competent counsel to represent the accused in theproceeding against him, including an appeal, if any, until relieved orreplaced by other counsel.

The executed statements by the accused and the order of appointment ofcounsel shall be filed with and become a part of the record of suchproceeding.

All other instances in which the appointment of counsel is required for anindigent shall be made in accordance with the guidelines prescribed in thissection.

Except in jurisdictions having a public defender, counsel appointed by thecourt for representation of the accused shall be selected by a fair system ofrotation among members of the bar practicing before the court whose names areon the list maintained by the Indigent Defense Commission pursuant to 19.2-163.01.

(Code 1950, 19.1-241.3; 1964, c. 657; 1966, c. 460; 1975, c. 495; 1976, c.553; 1978, c. 720; 1984, c. 709; 2004, cc. 884, 921.)