MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary B; Appropriations

By: Representative Ford

AN ACT TO REENACT SECTIONS 25-32-1, 25-32-3, 25-32-5, 25-32-7, 25-32-9, 25-32-11, 25-32-13, 25-32-15, 25-32-17 AND 25-32-19, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE ESTABLISHMENT OF AN OFFICE OF PUBLIC DEFENDER BY THE BOARDS OF SUPERVISORS; TO AMEND SECTION 25-32-21, MISSISSIPPI CODE OF 1972, TO EXTEND THE REPEALER ON THE ESTABLISHMENT OF THE OFFICE OF PUBLIC DEFENDER; TO BRING FORWARD SECTION 21 OF CHAPTER 575, LAWS OF 1998, WHICH PLACES FUNDING CONDITIONS ON THE EFFECTIVE DATE OF THE STATEWIDE PUBLIC DEFENDER SYSTEM; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 25-32-1, Mississippi Code of 1972, is reenacted as follows:

25-32-1. Should the board of supervisors of any county or the boards of supervisors of two (2) or more counties in the same circuit court district determine by order spread upon their minutes that the county or counties have a sufficient number of indigent defendant cases to establish an office of public defender, the board of supervisors or boards of supervisors are authorized and empowered, in their discretion, to establish the office, provide office space, personnel and funding for the office, and to perform any and all functions necessary for the efficient operation of such an office to the end that adequate legal defense for indigent persons accused of crime shall be provided at every critical stage of their cases as an alternative to court appointed counsel. Said order shall specify whether the public defender shall be full-time or part-time.

SECTION 2. Section 25-32-3, Mississippi Code of 1972, is reenacted as follows:

25-32-3. (1) When the office of public defender is established, the circuit judge or the senior circuit judge, if there be more than one (1) circuit judge, shall appoint a practicing attorney to serve the county or counties as public defender until the end of the term of office of the district attorney and thereafter for a term of four (4) years and said term shall coincide with the term of the district attorney. Such appointee shall be selected from a list of two (2) or more attorneys recommended by the county or regional bar association. In the event a vacancy shall occur in the office of the public defender, the circuit judge or the senior circuit judge, if there be more than one (1) circuit judge, shall appoint another person to serve as public defender until the end of the regular term of office.

(2) Assistant public defenders may be authorized by the board of supervisors, or boards of supervisors if two (2) or more counties are acting jointly. The public defender shall appoint all assistant public defenders. Such assistant public defenders may be compensated in such an amount as may be authorized by the respective board of supervisors; provided, however, that in no case may such assistant public defenders receive compensation in an amount greater than that received by the public defender.

SECTION 3. Section 25-32-5, Mississippi Code of 1972, is reenacted as follows:

25-32-5. Compensation for the public defender shall be fixed by the board of supervisors or boards of supervisors, if two (2) or more counties are acting jointly; provided, however, the compensation for a public defender, who shall be full-time, representing an entire circuit court district shall not be less than the compensation of the district attorney, the compensation for a public defender representing one (1) county shall not be less than the compensation of the county prosecuting attorney and the compensation for a public defender representing two (2) or more counties, but less than the entire circuit court district, shall not be less than the aggregate of the compensation for county prosecuting attorneys of the counties served, but in no event to exceed the compensation of the district attorney. No full-time public defender or full-time assistant public defenders shall engage nor be associated with any person in the private practice of law. Part-time public defenders or part-time assistant public defenders may engage in the private practice of the law as long as such practice does not relate to the prosecution of criminal matters.

SECTION 4. Section 25-32-7, Mississippi Code of 1972, is reenacted as follows:

25-32-7. The public defender shall be provided with office space, secretarial assistance, and all reasonable expenses of operating the office, at least equal to or more than the county prosecuting attorney, or the district attorney if the public defender represents the entire circuit court district. The compensation and expenses of the public defender's office shall be paid by the county or counties if two (2) or more counties are acting jointly. The funds shall be paid upon allowance by the board of supervisors by order spread upon the minutes of the board.

SECTION 5. Section 25-32-9, Mississippi Code of 1972, is reenacted as follows:

25-32-9. (1) When any person shall be arrested and charged with a felony, a misdemeanor or an act of delinquency, then the arresting authority shall afford such person an opportunity to sign an affidavit stating that such person is an indigent and unable to employ counsel. Upon the signing of such affidavit by such person, the public defender shall represent said person unless the right to counsel be waived by such person. Provided further, a statement shall be executed by the alleged indigent, under oath, listing all assets available to the indigent for the payment of attorney's fees, including the ownership of any property, real or personal, and setting out therein the alleged indigent's employment status, number of dependents, income from any source, the ability of his parents or spouse to provide an attorney's fee, and any other information which might prove or disprove a finding of indigency. The affidavit and statement shall be a part of the record in the case and shall be subject to review by the appropriate court. Based on review of the affidavit, statement or other appropriate evidence, if the appropriate court finds that the defendant is not indigent, said court shall terminate the representation of the defendant by the public defender.

When any person shall be arrested and charged with a misdemeanor, the presiding judge or justice, upon determination that the person is indigent as provided in this section, and that representation of the indigent is required, shall appoint the public defender whose duty it shall be to provide such representation. No person determined to be an indigent as provided in this section shall be imprisoned as a result of a misdemeanor conviction unless he was represented by the public defender or waived the right to counsel.

(2) The accused shall have such representation available at every critical stage of the proceedings against him where a substantial right may be affected.

(3) The public defender shall also represent persons in need of mental treatment, as provided under Sections 41-21-61 et seq. The chancery court may tax costs as provided in Sections 41-21-79 and 41-21-85.

SECTION 6. Section 25-32-11, Mississippi Code of 1972, is reenacted as follows:

25-32-11. The duties of the public defender shall include the investigation of charges against the defendant and all facts surrounding the same, and shall include courtroom and appellate appearances on behalf of the defendant in all cases originating in state and county courts. The public defender shall have free access to the accused who shall have process to compel the attendance of witnesses in his favor.

SECTION 7. Section 25-32-13, Mississippi Code of 1972, is reenacted as follows:

25-32-13. (1) If the court finds that indigent defendants have such conflicts of interests that they all cannot be properly represented by the public defender, or when other good cause is shown in the trial court or on appeal, the court shall appoint separate counsel as provided in Section 99-15-15, Mississippi Code of 1972. In such cases, the fees allowed appointed counsel in Section 99-15-17, Mississippi Code of 1972, shall apply.

(2) If the court finds that an indigent is a defendant in a case of such a nature that he cannot be properly represented by the public defender alone, the court shall appoint additional counsel to assist the public defender as provided in section 99-15-15, Mississippi Code of 1972. In such cases, the fees allowed appointed counsel in section 99-15-17, Mississippi Code of 1972, shall apply.

SECTION 8. Section 25-32-15, Mississippi Code of 1972, is amended as follows:

25-32-15. The office of public defender may be terminated, in the discretion of the board of supervisors, by entering an order upon the minutes of the board of supervisors six (6) months prior to the expiration of the term of the public defender. Such termination shall be effective at the end of the term of the public defender.

SECTION 9. Section 25-32-17, Mississippi Code of 1972, is reenacted as follows:

25-32-17. The compensation, administrative staff, office space and secretarial assistance shall not be reduced or diminished but may be increased during the term of the public defender.

SECTION 10. Section 25-32-19, Mississippi Code of 1972, is reenacted as follows:

25-32-19. The public defender and the board of supervisors may cooperate with any individual or public agency, whether state or federal, or with any institution of higher learning of the State of Mississippi, to obtain by gift, grant or otherwise any financial, professional, investigatory or research or other assistance; provided, however, that any grants or any financial assistance whatever for the purpose herein set out shall be paid over to the board of supervisors and administered by it for the purposes herein set forth. The board shall have the authority to use any financial assistance or grants to extend and expand the facilities of the office.

SECTION 11. Section 25-32-21, Mississippi Code of 1972, is amended as follows:

25-32-21. Sections 25-32-1, 25-32-3, 25-32-5, 25-32-7, 25-32-9, 25-32-11, 25-32-13, 25-32-15, 25-32-17 and 25-32-19, Mississippi Code of 1972, which establish and govern the Office of Public Defender, are repealed from and after July 1, 2000.

SECTION 12. Section 21 of Chapter 575, Laws 1998, is brought forward as follows:

Section 21. (1) All new programs authorized under this Senate Bill No. 2239 shall be subject to the availability of funds specifically appropriated therefor by the Legislature during the 1998 Regular Session or any subsequent session. This act shall be codified but no amendment to a code section or repeal of a code section enacted by this Senate Bill No. 2239 shall take effect until the Legislature has funded any new programs authorized hereunder by line item appropriation, said line item appropriation to be certified by the Legislative Budget Office to the Secretary of State.

(2) Notwithstanding any other provision of this act, the only actions authorized under this act to be funded shall be the hiring of the executive director, the hiring of a secretary for the executive director, expenses necessary for the operation of the commission and the executive director's office and expenses incidental thereto, and providing per diem for the members of the commission unless other legal funding as authorized under this act other than by appropriation of the Legislature is available. The commission shall assess the feasibility and cost of the implementation of this act and report its findings to the Legislature not later than January 1, 1999. This subsection (2) shall stand repealed on July 1, 1999.

SECTION 13. This act shall take effect and be in force from and after July 1, 1999.