State v. Bailey

State v. Bailey  (96-300); 165 Vt 579; 682 A.2d 579

[Opinion Filed 27-Jun-1996]


                               ENTRY ORDER
                      SUPREME COURT DOCKET NO. 96-300
                              JUNE TERM, 1996


State of Vermont                     }     APPEALED FROM:
				     }
                                     }
                                     }
     v.                              }     District Court of Vermont
                                     }     Unit No. 2, Franklin Circuit
Jared Eden Bailey                    }
                                     }     DOCKET NOS. 424-5-94 Frcr;
                                     }     797-7-94Fcr; 465-4-95Fcr;
                                     }     402-3-95Fcr

       In the above-entitled cause, the Clerk will enter:

       Defendant appeals from the district court's denial of assignment of
  counsel.  He argues that the court erred by considering the income of his
  father, with whom he lives, to find that defendant is not a financially
  needy person.  We agree.  The public defender statute sets forth a two-step
  procedure for assignment of counsel.  First, a person has a right to
  assignment of counsel if the person is needy.  13 V.S.A. § 5234(a)(1).  To
  determine whether a person is needy, "the court may consider such factors
  as income, property owned, outstanding obligations, and the number and ages
  of dependents."  13 V.S.A. § 5236(b).  If the person is eligible for
  assigned counsel, then the statute sets forth the second step for
  co-payment and reimbursement. See 13 V.S.A. § 5238.  In determining the
  co-payment and reimbursement amounts, the court shall consider "the income
  of the person and cohabitating family members."  13 V.S.A. § 5238(b).

       Here, the court erred by considering the income of defendant's father
  in the first step of the procedure to determine whether defendant is needy. 
  Cohabitant income is relevant only in determining co-payment and
  reimbursement.

     Reversed and remanded.


     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice