MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary B; Appropriations

By: Representative Blackmon

AN ACT TO CREATE THE MISSISSIPPI OFFICE OF INDIGENT APPEALS AND SPECIFY ITS PERSONNEL; TO PROVIDE FOR QUALIFICATIONS FOR ATTORNEYS IN THE OFFICE; TO PROVIDE FOR COMPENSATION; TO SPECIFY OFFICE HOURS; TO AUTHORIZE THE DIRECTOR TO ACQUIRE OFFICE SPACE, SUPPLIES AND EQUIPMENT; TO REQUIRE THE DIRECTOR TO MAINTAIN A DOCKET; TO AUTHORIZE APPOINTMENT OF ATTORNEYS IN SITUATIONS WHERE CONFLICTS ARISE; TO CREATE THE INDIGENT APPEALS SPECIAL FUND; TO PROVIDE FOR PAYMENT OF SALARIES AND EXPENSES FROM THE FUND; TO PROVIDE THAT ATTORNEYS APPOINTED TO THE OFFICE SHALL BE FULL TIME; TO AMEND SECTION 99-19-73, MISSISSIPPI CODE OF 1972, TO PROVIDE AN ASSESSMENT ON CERTAIN OFFENSES TO FUND THE MISSISSIPPI OFFICE OF INDIGENT APPEALS; AND FOR RELATED PURPOSES.

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

SECTION 1. This chapter may be cited as the "Mississippi Indigent Appeals Act."

SECTION 2. There is hereby created the Mississippi Office of Indigent Appeals. This office shall consist of six (6) attorneys, one (1) fiscal officer and two (2) secretaries/paralegals. One of these attorneys shall serve as director of the office. The director shall be appointed by the Governor with the advice and consent of the Senate for a term of four (4) years or until a successor takes office. The remaining attorneys and other staff shall be appointed by the director of the office and shall serve at the will and pleasure of the director. The director and all other attorneys in the office shall be active members of The Mississippi Bar. The director may be removed by the Governor upon finding that the director is not qualified under law, has failed to perform the duties of the office, or has acted beyond the scope of the authority granted by law for the office.

SECTION 3. The Office of Indigent Appeals is created for the purpose of providing representation to indigent parties under indictment for indigent persons convicted of felonies but not under sentence of death and to perform such other duties as set forth by law.

SECTION 4. The Office of Indigent Appeals shall limit its activities to representation of defendants accused of felony offenses not involving a sentence of death and ancillary matters related directly to such eligible offenses and other activities expressly authorized by statute. Representation by the office or by other court appointed counsel under this act shall terminate upon completion of appeal. The attorneys appointed to serve in the Office of Indigent Appeals shall devote their entire time to the duties of the office, shall not represent any persons in other litigation, civil or criminal, nor in any other way engage in the practice of law. Any violation of this provision shall be grounds for termination from employment, in the case of the director by the Governor and in the case of other attorneys by the director with approval of the Governor.

SECTION 5. The director appointed under this act shall be compensated at no more than the maximum amount allowed by statute for a district attorney, and other attorneys in the office shall be compensated at no more than the maximum amount allowed by statute for an assistant district attorney.

SECTION 6. The Director of the Office of Indigent Appeals shall keep the office open Monday through Friday for not less than eight (8) hours each day and observe such holidays as prescribed by statute.

SECTION 7. In addition to the authority to represent persons convicted of felonies but not under sentence of death, the director is hereby empowered to pay and disburse salaries, employment benefits and charges relating to employment of staff and to establish their salaries and expenses of the office; to incur and pay travel expenses of staff necessary for the performance of the duties of the office; to rent or lease on such terms as he may think proper such office space as is necessary in the City of Jackson to accommodate the staff; to enter into and perform contracts and to purchase such necessary office supplies and equipment as may be needed for the proper administration of said offices within the funds appropriated for such purpose, and to incur and pay such other expenses as are appropriate and customary to the operation of the office.

SECTION 8. The director shall keep a docket of all felony eligible cases originating in the courts of Mississippi which must, at all reasonable times, be open to inspection by the public and must show the county, district and court in which the cause is pending. The director shall prepare and maintain a roster of all indigent felony appeals in the courts of Mississippi indicating the current status of each case and submit this report to the Governor, Chief Justice of the Supreme Court and the Administrative Office of the Courts monthly. The director shall also report monthly to the Administrative Office of Courts the activities, receipts and expenditures of the office.

SECTION 9. If, at any time, during the representation of two (2) or more defendants the director determines that the interests of those persons are so adverse or hostile they cannot all be represented by the director or his staff without conflict of interest, or if the director shall determine that the volume or number of representations shall so require, the director in his sole discretion, notwithstanding any statute or regulation to the contrary, shall be authorized to employ qualified private counsel. Fees and expenses approved by order of the court of original jurisdiction, including investigative and expert witness expenses of such private counsel, shall be paid by funds assessed under Section 99-19-73 to the Indigent Appeals Special Fund for this purpose, which fund is hereby created. The salaries of all employees and expenses of operation of the Mississippi Office of Indigent Appeals shall be paid from this fund. Monies in this fund shall not lapse into the General Fund at the end of the fiscal year but shall remain in the fund, and any interest accrued to the fund shall remain in the fund.

SECTION 10. Upon determination of indigence the circuit court may in its discretion, appoint local counsel for the purpose of providing representation for appeals of eligible indigent defendants, the fees and expenses of which shall be paid by the Indigent Appeals Special Fund. In the presiding circuit judge's discretion, a determination of the absence of competent defense counsel having been made, counsel from the Office of Indigent Appeals may be appointed to assist local counsel to appeal said case with all fees and expenses to be paid by the Indigent Appeals Special Fund.

SECTION 11. Section 99-19-73, Mississippi Code of 1972, is amended as follows:

99-19-73. (1) Traffic Violations. In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected the following state assessment from each person upon whom a court imposes a fine or other penalty for any violation in Title 63, Mississippi Code of 1972, except offenses relating to the Mississippi Implied Consent Law (Section 63-11-1 et seq.) and offenses relating to vehicular parking or registration:

FUND AMOUNT

State Court Education Fund $ 1.50

State Prosecutor Education Fund .50

Driver Training Penalty Assessment Fund 7.00

Law Enforcement Officers Training Fund 5.00

Spinal Cord and Head Injury Trust Fund

(for all moving violations) 4.00

Emergency Medical Services Operating Fund 10.00

Mississippi Leadership Council on Aging Fund 1.00

TOTAL STATE ASSESSMENT $ 31.50

(2) Implied Consent Law Violations. In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected the following state assessment from each person upon whom a court imposes a fine or any other penalty for any violation of the Mississippi Implied Consent Law (Section 63-11-1 et seq.):

FUND AMOUNT

Crime Victims' Compensation Fund $ 10.00

State Court Education Fund 1.50

State Prosecutor Education Fund .50

Driver Training Penalty Assessment Fund 22.00

Law Enforcement Officers Training Fund 11.00

Emergency Medical Services Operating Fund 10.00

Mississippi Alcohol Safety Education Program Fund 5.00

Federal-State Alcohol Program Fund 10.00

Mississippi Crime Laboratory

Implied Consent Law Fund 25.00

Spinal Cord and Head Injury Trust Fund 25.00

State General Fund 35.00

TOTAL STATE ASSESSMENT $157.50

(3) Game and Fish Law Violations. In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected the following state assessment from each person upon whom a court imposes a fine or other penalty for any violation of the game and fish statutes or regulations of this state:

FUND AMOUNT

State Court Education Fund $ 1.50

State Prosecutor Education Fund .50

Law Enforcement Officers Training Fund 5.00

Hunter Education and Training Program Fund 5.00

State General Fund 30.00

TOTAL STATE ASSESSMENT $ 44.50

(4) Litter Law Violations. In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected the following state assessment from each person upon whom a court imposes a fine or other penalty for any violation of Section 97-15-29 or 97-15-30:

FUND AMOUNT

Statewide Litter Prevention Fund $ 25.00

TOTAL STATE ASSESSMENT $ 25.00

(5) Other Misdemeanors. In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected the following state assessment from each person upon whom a court imposes a fine or other penalty for any misdemeanor violation not specified in subsection (1), (2) or (3) of this section, except offenses relating to vehicular parking or registration:

FUND AMOUNT

Crime Victims' Compensation Fund $ 10.00

State Court Education Fund 1.50

State Prosecutor Education Fund .50

Law Enforcement Officers Training Fund 5.00

State General Fund 30.00

State Crime Stoppers Fund 1.50

TOTAL STATE ASSESSMENT $ 51.00

(6) Other Felonies. In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected the following state assessment from each person upon whom a court imposes a fine or other penalty for any felony violation not specified in subsection (1), (2) or (3) of this section:

FUND AMOUNT

Crime Victims' Compensation Fund $ 10.00

State Court Education Fund 1.50

State Prosecutor Education Fund .50

Law Enforcement Officers Training Fund 5.00

State General Fund 60.00

Criminal Justice Fund 50.00

TOTAL STATE ASSESSMENT $129.50

(7) If a fine or other penalty imposed is suspended, in whole or in part, such suspension shall not affect the state assessment under this section. No state assessment imposed under the provisions of this section may be suspended or reduced by the court.

(8) After a determination by the court of the amount due, it shall be the duty of the clerk of the court to promptly collect all state assessments imposed under the provisions of this section. The state assessments imposed under the provisions of this section may not be paid by personal check. It shall be the duty of the chancery clerk of each county to deposit all such state assessments collected in the circuit, county and justice courts in such county on a monthly basis with the State Treasurer pursuant to appropriate procedures established by the State Auditor. The chancery clerk shall make a monthly lump-sum deposit of the total state assessments collected in the circuit, county and justice courts in such county under this section, and shall report to the Department of Finance and Administration the total number of violations under each subsection for which state assessments were collected in the circuit, county and justice courts in such county during such month. It shall be the duty of the municipal clerk of each municipality to deposit all such state assessments collected in the municipal court in such municipality on a monthly basis with the State Treasurer pursuant to appropriate procedures established by the State Auditor. The municipal clerk shall make a monthly lump-sum deposit of the total state assessments collected in the municipal court in such municipality under this section, and shall report to the Department of Finance and Administration the total number of violations under each subsection for which state assessments were collected in the municipal court in such municipality during such month.

(9) It shall be the duty of the Department of Finance and Administration to deposit on a monthly basis all such state assessments into the proper special fund in the State Treasury. The monthly deposit shall be based upon the number of violations reported under each subsection and the pro rata amount of such assessment due to the appropriate special fund. The Department of Finance and Administration shall issue regulations providing for the proper allocation of these special funds.

(10) The State Auditor shall establish by regulation procedures for refunds of state assessments, including refunds associated with assessments imposed before July 1, 1990, and refunds after appeals in which the defendant's conviction is reversed. The Auditor shall provide in such regulations for certification of eligibility for refunds and may require the defendant seeking a refund to submit a verified copy of a court order or abstract by which such defendant is entitled to a refund. All refunds of state assessments shall be made in accordance with the procedures established by the Auditor.

SECTION 12. This act shall take effect and be in force from and after July 1, 2001.